Baba Vedu Vari Kudenga Apostolic Church v Joshua Nkomo Housing Co-operative Society Limited

### Preamble
1
HH397-13
HC 8582/13
---------


BABA VEDU VARI KUDENGA APOSTOLIC CHURCH

versus

JOSHUA NKOMO HOUSING CO-OPERATIVE SOCIETY LIMITED

And

JOSHUA NKOMO HOUSING CO-OPERATIVE SOCIETY LIMITED

versus

KONONO KONONO

and

PARDON SHONHIWA

and

GEORGE MANYIKA

and

LEONARD REMWA

and

ANYWHERE TANYANYIWA

and

SHEPHERD CHINYOKA

HIGH COURT OF ZIMBABWE

BERE J

HARARE, 28 and 31 OCTOBER, 2013

CROSS URGENT CHAMBER APPLICATIONS

E. Hamunakwadi, for the first applicant and second respondents

T.G. Mboko, for the second applicant and first respondent

BERE J: 	As if in serious and desperate effort to get the attention of the court the two parties in these two cases filed cross urgent applications in this court on 14 October and 17 October 2013.

Initially I was seized with one of the urgent applications but when my attention was brought to the existence of an almost similar application before my brother judge MAFUSIRE J, it was deemed appropriate that the two matters be heard at the same time and before the same judge. I did not hear of any serious objection from counsel to the consolidation of these matters despite the existence of a letter of 21 October 2013 originating from Messrs Hamunakwadi, Nyandoro and Nyambuya legal practitioners which seemed in my view to labour under a mistaken view of the legal position as I perceive it.

I propose to deal with the two applications in the manner they are captured in the citation. In doing so I am proceeding on the basis that all the deponents are properly before the court and having been so empowered in terms of their respective constitutions which were tendered during submissions and upon my request. In passing I wish to mention that the founding affidavits by both parties could have been neater if they had strictly complied with the dictates of the parties respective constitutions. However I shall not allow these omissions to cloud the real issues confronting the parties and screaming for determination by this court.

URGENCY OR NON URGENCY

A common thread that runs through both applications is the alleged urgency or lack of it depending on who the applicant is.

There has been competing positions taken by both parties with both of them trying to patronize the issue of urgency of their applications and down playing its existence in the other’s application.

I feel more inclined to adopt a more robust approach on the question of urgency. I have no doubt in my mind that the mere fact that both parties have filed these cross urgent applications is in itself a clear demonstration that both cases cannot wait. There is need for the court to intervene and pronounce the appropriate interim remedy that must be in place before the substantive issues desired by the parties are determined at an appropriate forum. I am therefore proceeding on the basis that the existence of urgency is beyond reproach.

CASE NO HC 8582/13

In this application the applicant who is cited as Baba Vedu Varikudenga Apostolic Church filed and urgent chamber application in this court seeking a provisional order calculated to bar the respondent from interfering in any way in the construction activities at a school situated at number 1193 of stand 48 Aspindale, Kambuzuma, Harare pending the determination of action under case number 847/13 initiated by the applicant to lay its claim on this school.

Apparently it is the ownership of this school which is at the centre of the dispute between the parties.

In case no HC 847/13 the applicant has initiated action seeking to be declared the sole owner of the school in question.

The applicant through its representative Pardon Shonhiwa alleged in this urgent application that the basis of the applicant’s claim to the school in question is that through its Bishop, Mr Konono Konono the applicant applied to the Council of Churches Association of Zimbabwe to build a school at number 1193 of 49 Aspindale, Kambuzuma, Harare. Pursuant to this application the applicant commenced the construction of the school up to the stage it is today.

It was the applicant’s case that on 10th October 2013 the respondents through some of its members visited the school and seriously interfered with the smooth construction of the school thereby prompting the applicant to immediately file this application claiming among other things that it has a prima facie right to the school.

I must hasten to mention that the legal position is clear where an interim interdict is sought. In this regard I can do no better than borrow the impressive position re-stated by MALABA JA in the Airfield Investments Private Limited case where he put the position as follows;

“It must be borne in mind that an interim interdict is an extraordinary remedy, the granting of which is at the discretion of the court hearing the application for the relief. There are however requirements which the applicant for interim relief must satisfy before it can be granted. In L.F. Boshoff Investments (Pvt) Ltd v Cape Town Municipality 1969 (2) SA 256 (c) at 267 A – F, CORBETT J (as he then was) said an applicant for such a temporary relief must show:

‘(a) 	that the rights which is the subject matter of the main action and which he seeks to protect by means of interim relief is clear as, if not clear, it prima facie established though open to some doubt;

(b)	that if the right is only prima facie established, there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right;

(c)	that the balance of convenience favours the granting of interim relief; and

(d)	that the applicant has no other satisfactory remedy.”

It is significant that in this case the applicant has not furnished the court with any evidence to show its entitlement or right to the school in question. The best the applicant did was to allege through its legal practitioner in submissions that some unidentified politician had “allocated” the land to the applicant. Therein lies the problem.

Compare the applicant’s haze claim of right to the school with the respondent’s position as outlined in its notice of opposition and supported by annexures ‘C’, ‘D’ and ‘E’ of that notice. Add to this the production of the master plan for stand 48 Aspindale Township, Harare during submissions in court, which plan tended to show that stand 1193 might be an intergral part of stand 48.

It seems to me the only basis of the applicant’s claim to the school is its undocumented allocation to it by some unknown politician and its alleged “wholly” financing of the construction of the school.

In my view, this does not come anywhere nearer to satisfying the basic requirements of the relief desired by the applicant and I entertain not the slightest hesitation in dismissing the applicant’s urgent application.

CASE NO. HC 8704/13

This case was lodged by Joshua Nkomo Housing Co-operative Society Limited seeking a provisional order barring the cited respondents from interfering with the administration of the school and conducting meetings that are detrimental to the smooth management of the school pending the determination of case number HC 7174/13.

Apparently the applicant in this case instituted action in case HC 7174/13 seeking to have the ownership of the school in question determined.

In the instant application and to justify its right to the school the applicant attached annexures ‘A’, ‘B’ and ‘C’ as the basis upon which its claim to the school is pivoted.

In their notices of opposition, the respondents re-stated their vague claim to the school with no documentary evidence produced.

Of importance the respondents raised two issues in limine one of which was the issue of urgency which I have already dealt with.

The other preliminary point raised by the respondent was that case number HC 8704/13 was improperly before this court. The basis of this argument was that this same case was earlier on bought to court as an urgent application and placed before my brother judge ZHOU J who dismissed it on 17 October 2013 on the basis that he deemed it not to be urgent.

It was the respondent’s counsel’s view that once the matter had been so dismissed on such a technicality it could not be brought to the same court as the court had become functus officio in this case.

Respondent’s counsel passionately argued that the matter was now res judicata and urged the court to dismiss the application with costs on a punitive scale.

IS CASE HC 8704/13 PROPERLY BEFORE THE COURT?

I am relieved in that the argument raised by counsel on this issue is not new to this court. It has been dealt with before.

A similar argument was presented to my sister judge, MAVANGIRA J in the case of Church of the Province of Central Africa v Diocesan Trustees, Diocese of Harare . The head note to this case reads as follows:

“Upon perusal of the papers in respect of an urgent chamber application, the judge was of the view that no urgency was disclosed and endorsed the papers accordingly. Thereafter the applicant sought leave to present oral argument before her n the point. This was granted. During subsequent argument the respondent submitted that the judge was functus officio on the urgency point as the applicant failed to establish any urgency, outside what was already contained therein.

Held, that the endorsement that the matter was not urgent reflected the prima facie view of the court on the papers, without hearing oral argument from the parties. In these circumstances, the court cannot be functus officio. Had the matter been fully argued orally and a determination made thereafter, the court would have been functus officio.”

The same approach was adopted by MAKARAU JP (as she then was) in the case of Document Support Centre (Pvt) Ltd vs. Mapuvire  where the learned judge reasoned that the mere fact that another judged had formed the opinion that the matter was not urgent was no bar to her in dealing with the same matter in which certain other developments had taken place ever since urgency had initially been declined.

I draw an analogy with the two cases cited above with this matter that I am seized with.

It is clear to me that when ZHOU J declined urgency of the matter which was placed before him under HC 1262/13, he did not deal with the matter on merits. Because of this technical dismissal, the now applicant was within its rights to bring the same but amended application either before the same judge or any other Judge of this court.  It could therefore not possibly be successfully argued that this court was functus officio.

With due respect I do not accept that the position adopted by Mr Hamunakwadi, firstly through his letter of 21 October 2013 to the Registrar and through his related submissions in court on 28 October 2013 was a correct position of the law.

I accept that the dismissal of the same application by ZHOU J. was on a technicality which did not bar the reinstating of the same case as corrected or amended before the same judge or any other judge of this court.

On merits, the applicant in this case has done more through annexures A, B and C to show the existence of the applicant’s prima facie right to stand 1193 Aspindale Township, Harare.

It is tempting to say that there may be doubts as to the propriety of the building of the school as opposed to residential structures but I do not believe that that doubt should prejudice the applicants as it is recognized, that such a prima facie right might be open to some doubt.

If I were to choose between the applicant in this case and the respondents cited therein as well as the applicant in HC 8582/13 I would naturally be more inclined to find in favour of the applicant in case HC 8704/13 as having established their case on a balance of probabilities.

The balance of convenience favours the applicant and the respondents in this case as well as the applicant in case HC 8582/13 clearly have other remedies available to them including but not limited to the recovery of any moneys they may have injected in anticipation of what might turn out to be an elusive claim to the school in question.

I conclude by making an all-embracing order on the two cases.

IT IS ORDERED AS FOLLOWS;

That the applicant’s application in case HC 8582/13 be and is hereby dismissed with costs.

The interim order sought by the applicant under case number HC 8704/13 be and is hereby granted with costs to be determined upon confirmation or discharge of this order.

Messrs Hamunakwadi, Nyandoro & Nyambuya, legal practitioners for applicant in case number HC 8582/13

Messrs Donsa-Nkomo & Mutangi Legal Practice, legal practitioners for the applicant under case number HC 8704/13