Pioneer Coaches v Mathew Muchazviona Gwaku

### Preamble
1
HMT 55-20
CIV ‘A’ 38/19
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PIONEER COACHES

And

MATHEW MUCHAZVIONA GWAKU

HIGH COURT OF ZIMBABWE

MWAYERA & MUZENDA JJ

MUTARE, 22 July 2020 and 30 July 2020

Civil Appeal

Ms Y Chapata, for the appellant

Ms F Maroko, for the respondent

MUZENDA J: This is an appeal against the whole of a judgement of the Provincial Magistrate sitting at Mutare on 21 October 2019 in which the appellant outlined its grounds of appeal as follows:

GROUNDS OF APPEAL

The court a quo misdirected itself on the law, in granting substantive relief on the merits without conducting a trial as the court ought to have done, and

The court a quo misdirected itself by granting an order for the ejectment of the defendant (Appellant) when such relief had not been claimed in the summons;

The court a quo grossly misdirected itself on the facts which misdirection amounts to a misdirection on the law, in finding that the defendant had sought numerous postponements as a delaying tactic when the defendant had neither sought such postponement nor resorted to any delay tactics.

Appellant prayed that the order of ejectment granted by the court a quo be set aside and substituted by one remitting the matter to the court a quo for a trial de novo before a different magistrate.

The appeal is opposed by the respondent.

BACKGROUND

The respondent, Mathew Muchazviona Gwaku, then a self-actor issued summons in the Magistrates Court in 2018 seeking the removal of appellant’s property from his Clock Room at Mudzviti Bus Terminus in Mutare on the grounds that the appellant had failed to pay rentals in the sum of $400-00 and advertising fee totalling $800-00. He indicated that he had given appellant a notice to vacate by writing a letter of demand which letter was ignored by the appellant. On 15 August 2018 the appellant filed its appearance to defend the action. On 27 August 2018 respondent filed a notice to plead. In reply appellant filed a request for further particulars. Respondent responded on 3 September 2018. On 12 September 2018 another request for further and better particulars was filed by the appellant, respondent supplied the requested further particulars on 14 September 2018 where he indicated that there was an outstanding fee of $800-00 since November 2017 and the appellant had not paid the required Council Trading fee for year 2017-2018 and that appellant had taken the draft lease agreement and had not signed it. On 7 August 2019 the matter was set down for hearing. Ms Maganga for the appellant submitted to the trial magistrate that the matter was meant for trial, the parties were still engaged with a view of settling the matter. The matter was postponed to 16 August 2019 by consent. It is not clear from the record of proceedings as to what happened on 16 August 2019 but the next date of hearing was 28 August 2019 where Ms Maroko representing the respondent indicated to court that the parties were still negotiating and then by consent the matter was deferred to 10 September 2019. On 10 September 2019, the parties attended court and Ms Maganga made an application for a postponement, the parties were still trying to negotiate. The matter was postponed to 18 September 2019 by consent. On 18 September 2019 Ms Maroko for the respondent submitted that the matter was meant for trial but however the appellant was not prepared for trial. She added that she would only concede to the last postponement because the appellant was deliberately trying to prolong the proceedings. She also indicated that there was no further application for postponement and if ever there was the court should refuse any further postponement. To the respondent’s legal practitioner appellant was playing games with the plaintiff, respondent agreed to the last postponement and appellant was ordered to pay respondent’s wasted legal costs and those costs were going to be paid before the next date of trial which was agreed as 21 October 2019. The appellant did not pay respondent’s wasted costs as agreed and on 21 October 2019 the respondent’s legal practitioner moved the trial court not to hear the appellant because it had not paid the wasted costs. Respondent also prayed for an order for eviction against the defendant/appellant from respondent’s premises and that appellant pay costs of suit. Coincidentally Ms Maganga representing the appellant had no response nor submissions to respondent’s request. On 30 October 2019 judgment was entered for the respondent in terms of the Summons and an order of costs on attorney – client scale was ordered against the appellant. Appellant was evicted forthwith. This is the order that prompted the appellant to note an appeal outlining the grounds of appeal specified above herein.

On the date of hearing the appeal Ms Y Chapata appeared for the appellant at the instruction of Messrs Matizanadzo and Warhurst legal practitioners for the appellant. The court took counsel for the appellant to task on the quality and substance of the heads of argument more particularly with reference to the record of proceedings, she could not explain the heads and sought to blame the instructing attorneys. She was asked whether she would want to postpone the hearing to allow the instructing attorneys to attend to the hearing and she indicated that she was in a position to argue the appeal.

WHETHER THE COURT A QUO ERRED IN GRANTING SUBSTANTIVE RELIEF ON THE MERITS WITHOUT CONDUCTING A TRIAL?

Ms Chapata submitted that the appellant had an immutable right to be heard or to make representations to the court before any decision is made that may impinge upon its right or interest as encapsulated in the maxim audi alteram partem. She cited the matter of AG v Mudisi and others. By handing down judgment without conducting a trial the court a quo fell into grave error, it was strongly submitted. It was further submitted that even in the limited proceedings where judgment is granted without giving audience to the other party, the courts have repeatedly held that such procedures are drastic and ought to be granted as a last resort and any remedy which takes away audience to any litigant who has demonstrated an intention to defend a claim should be given sparingly. The appellant admitted that a litigant can be denied the court’s audience if it is guilty of failing to comply with the court’s rules or with any of its orders albeit having put the litigant at notice and extend a reasonable time for the litigant to purge its non-compliance. As a result the court a quo was required to give the appellant an opportunity to pay the wasted costs as opposed to summarily diving into the merits of the case without trying the matter, it was submitted on behalf of the appellant.

The respondent’s counsel, Ms Maroko submitted that the court a quo did not err when it granted substantive relief on the merits without conducting a trial. Appellant was approaching the court with dirty hands having not paid the wasted costs which was a court order. (She cited the matter of ANZ (Pvt) Ltd v Minister of Information and Publicity,  S v Nail, Milligan v Milligan and Fraird v Nothman)

In any case respondent submitted, appellant was given an opportunity to explain the position on the date of hearing but declined hence it waived its rights to be heard. It was further submitted that the right to be heard is not an absolute immutable rule of law, it can be waived or forfeited where the beneficiary is at fault. Appellant, it was submitted by the respondent, was legally represented and deemed to be aware of his rights which were waived. Appellant failed to challenge respondent’s submissions which led the court a quo to grant the judgment and order, it was contended. The appellant should at least have applied for some relief than to have absolutely no response to the respondent’s submission.

The synopsis of the chronology of the events leading to the order given by the court contained in the background of facts above exhibits an attitude on the part of the appellant which is deliberately meant to delay the proceedings brought against him by the respondent. Appellant’s legal practitioners on the other hand also acted in a do not care attitude towards the handling of the matter which further appears on the colour and substance of the heads of arguments.

It is indeed an accepted mundane principle accepted by our courts that before a determination is made against a party, the court must afford that party an opportunity to be heard, however the law guards and protects diligent litigant. In this matter the appellant openly admits that an order of costs was awarded against it by the court a quo when the matter was postponed for the last time and it was made clear by the court that those wasted costs were to be paid before the next date of set down. Appellant did not obey the court order. On the date of hearing an application was made by the respondent to the court a quo to declare the appellant to be in contempt of court for failure to pay the costs as per the court a quo’s directive and also to deny the appellant an opportunity to be heard. The appellant’s legal practitioner did not oppose the application nor make any contrary submission. Appellant did not seek the indulgence of the court a quo to further postpone the trial or use its discretion to afford appellant an opportunity to purge its contempt by being given time to pay the wasted costs. The appellant waived its own right to be heard. The appellant admitted in its own heads of argument (paragraph 7) that a litigant can properly be denied the court’s audience if it is guilty of failing to comply with the court’s orders. This is squarely what the appellant did in this case. I agree with the respondent’s submission that the right to be heard is not an absolute immutable rule of law, it can be waived or forfeited when the beneficiary is at fault. As clearly summarised by Professor G Feltoe.

“Clearly when a person is offered the chance to exercise one of the rights recognised as being part of the principles of natural justice and he declines to avail himself of this right, then he has waived his right.”

The appellant was legally represented and invariably aware of its rights but surprisingly those rights were not asserted appropriately and chose to raise them belatedly on appeal. I see no fault nor misdirection on the part of the trial court in these circumstances. The appellant was alerted by both the court and the respondent. The court a quo properly in any view exercised its discretion pertaining to postponements as well as on the issue of doctrine or concept of a party approaching a court with dirty hands. I discern no misdirection and the first ground of appeal is dismissed.

WHETHER THE COURT A QUO MISDIRECTED ITSELF BY GRANTING AN ORDER FOR THE EJECTMENT OF THE APPELLANT WHEN SUCH RELIEF HAD NOT BEEN CLAIMED IN THE SUMMONS?

The appellant’s legal practitioner submitted that the relief sought ex facie the summons a quo is that the respondent sought the removal of the appellant’s property from the leased premises. Eviction was not therefore prayed for and yet the court a quo proceeded to order eviction forthwith, by so doing, it was contended by the appellant that the court a quo raised an issue mero motu and made a finding on it without hearing counsel on that issue. The appellant impugned the court a quo’s conduct and equalled that conduct as being tantamount to a court descending into the arena and arguing a case on behalf of one of the parties. Counsel for the appellant cited the matter of Muzuva v United Bottlers (Pvt) Ltd, National Foods Ltd v Mugadza Mpumela v Berger Paints (Pvt) Ltd. As such, appellant added in its submission, the court may not grant a relief mero motu even if it appears equitable under the circumstances. The court is required to bring up the relief and give the parties an opportunity to ventilate on the issue. Appellant submitted that the court erred in determining a matter not placed before it and went contrary to the appellant’s right to be heard.

The respondent concedes that the court must determine the dispute placed before it by the parties through their pleadings evidence and submissions. However the summons prepared by the respondent spoke of removal of property from respondent’s premises. The further particulars which form part of the respondent’s pleadings, the pre-trial conference minute, are all explicit that the issue of ejectment was at the core of the summons commencing action, it was submitted on behalf of the respondent. In any case the respondent submits this ground of appeal when compared with appellant’s plea, the conclusion is completely opposite where the plea reads

“The plaintiff has no legal or just cause to evict and remove the defendant from the premises” The respondent on page 28 of the record of proceedings prayed for an order to evict the appellant from Mudzviti Bus Terminus”

Looking at the submissions of the parties it is apparent that if the appellant had any problems with respondent’s summons commencing action, it should have excepted to the summons. It did not. It went on further to prepare a plea which is in principle not one but a bare denial. The appellant’s own plea prays that plaintiff/respondent’s claim for eviction be dismissed where had the appellant discerned this ejectment if it had not derived it from respondent’s pleadings? The alleged misdirection on the part of the trial court is unfounded in my view. I am fortified by the fact that on the date of hearing respondent applied for an order of ejectment of appellant from the premises and appellant ought to have leapt up in court and advise the trial court that the relief being sought by the respondent was off the record. Appellant’s legal practitioners sat on the laurels comfortably and chose not to say anything in response. I am satisfied that the court a quo granted an order stipulated in the proceedings and applied for by the respondent in his submission on the date of hearing which submissions went unchallenged. The second ground of appeal is dismissed for having no merit.

WHETHER THE COURT A QUO MISDIRECTED ITSELF ON THE FACTS, WHICH MISDIRECTION AMOUNTS TO A MISDIRECTION ON THE LAW, IN FINDING THAT THE DEFENDANT HAD SOUGHT NUMEROUS POSTPONEMENT AS A DELAYING TACTIC WHEN THE DEFENDANT HAD NEITHER SOUGHT SUCH POSTPONEMENT NOR RESORTED TO ANY DELAYING TACTICS?

It was submitted on behalf of the appellant that the Learned Magistrate found that the appellant had sought numerous postponements purely as a delaying tactic which prompted the trial court to summarily hand down a ruling on the matter dispensing the need for hearing oral evidence. According to the appellant all the postponements that were granted were by consent except one. Appellant found it difficult therefore why it could have been adjudged to employ dilatory tactics. To the appellant generally postponements are not given upon mere asking, the court is requested for a postponement and using its discretion it is required to deliberate into the preferred reasons for such a deferment and in addition analyse the aspect of prejudice that the other party is likely to suffer if a postponement is granted. Appellant referred the court to a number of cases for such a submission. As such if a court subsequently make a finding that that the postponement was a dilatory tactic it would be contradicting itself, it was argued.

The respondent in turn submitted that the court a quo was correct when it held that the appellant was employing delaying tactics. It was further contended on behalf of the respondent that the general rule is that there must be finality to litigation. The respondent added that the respondent issued summons on 7 August 2018 and a year later the matter was still not resolved. On the very first date of hearing the appellant applied for a postponement to allow negotiation for a possible settlement. Two further postponements were made for the same reason for an out of court resolution of the matter and on 18 September 2019, it was further submitted, a postponement was granted on the basis that the appellant would pay wasted costs of the respondent, incidentally that was ordered to be the last postponement. On the last date of hearing preceding the order appealed against, the appellant was not ready to proceed with the trial. The trial court was placed in a mere difficult position even if appellant could have applied for a further postponement for on 18 September 2019 and it had indicated that, that was the last postponement.

It can be gleaned from the reading of the record that appellant, right from the outset, especially after entry of appearance to defend, was lethargic in its approach to the matter. Two requests for further particulars were filed by the appellant. The respondent supplied them. After such provision of further and better particulars, the appellant filed typically a bare denial to respondent’s claim which plea could safely be concluded to be scanty and devoid of a defence. The matter of Ndebele v Ncube is relevant to the ongoing analysis. The Learned Judge of appeal remarked as follows:

“It is the policy of the law that there should be finality in litigation. On the other hand one does not want to do injustice to litigants. We are bombarded with excuses for failure to act. We are beginning to hear more appeals for charity than justice. Incompetence is becoming a growth industry. Petty disputes are argued and then re-argued until the costs for exceed the capital amount in dispute. The time has come to remind the legal profession of the old adage, vigilant-

bus non dormienti-bus  jura subveniunt – roughly translated – the law will help the vigilant but not the sluggard.”

The appellant was ordered to pay costs of the postponement by the court a quo which it did not contest. The costs were as a result of the request for a postponement made by the appellant itself. It was the appellant who wanted to engage the respondent for a resettlement not vice versa, I can conclude that because of these factors all the postponements were at the instance of the appellant, although the respondent consented. The trial court was addressed by the respondent on the dilatory conduct of the appellant, on its own part. It examined the background of the matter and made deductions to the effect that indeed the appellant was to blame for the lackadaisical approach to the proceedings and concluded that the matter ought to have been brought to an end. In my view there is no misdirection on his part, he was managing the proceedings and one of the tasks endowed on him is to ensure that litigation must be brought to finality and he unmistakenly did so. There is no basis to interfere with his exercise of his discretion in this matter. The totality of the chronology of the events and underlining facts justified the means he employed to summarily decide the matter. The third ground of appeal has equally no basis and it is dismissed.

Accordingly the following order is returned:

The appeal is dismissed with costs of suit.

MWAYERA J agrees__________________

Mugadza Chinzamba and Partners, respondent’s legal practitioners

Matizanadzo and Warhurst, appellant’s legal practitioners