CBZ Bank Limited v Bashir Ziya Quddusi & 6 Ors

### Preamble
1
HH 643-18
HC 8771/18
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CBZ BANK LIMITED

versus

BASHIR ZIYA QUDDUSI

and

MARINA BASHIR QUDDUSI

and

ESTATE LATE DAVID C. KAMUNHU

and

ASTON ALOIS MUSUNGA

and

MUSUNGA AND ASSOCIATES LEGAL PRACTITIONERS

and

THE MASTER OF THE HIGH COURT N.O.

and

THE REGISTRAR OF DEEDS N.O.

and

THE SHERIFF OF ZIMBABWE N.O.

HIGH COURT OF ZIMBABWE

MANZUNZU J

HARARE, 27, 28 September & 11 October 2018

Urgent chamber application

T Bhatarasa, for the applicant

J Samkange, for the 1st & 2nd respondents

L Rufu, for the 3rd respondent

E Makaka, for the 4th & 5th respondents

MANZUNZU J: This is an urgent application in which the applicant seeks a provisional order in the following terms:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the 	following terms:

That pending the determination of an appeal in SC 697/18 the 1st, 2nd, 7th and 8th respondents or their agents or anyone taking instruction from them be and are hereby interdicted from initiating or proceeding with the process of executing the court order in HC 5328/17 including the transfer of rights and title to anyone in respect of stand number 12900 Salisbury Township of Salisbury Township lands.

The 1st and 2nd respondents are to pay costs of suit.

INTERIM RELEF GRANTED

That pending the determination of this matter, the applicant is granted the following 	relief:

The 1st and 2nd respondents be and are hereby interdicted from initiating, processing and proceeding with the execution and transfer of title pursuant to the court order in HC 5328/17.

The 8th respondent is interdicted from accepting, signing, approving any execution documents, writ or instructions from the 1st and 2nd respondents or their agents.

The 7th respondent is interdicted from accepting, signing, approving any transfer of title in respect of stand number 12900 Salisbury Township of Salisbury Township lands or any execution documents, writ or instructions from the 1st, 2nd and 8th respondents or their agents.”

Despite service the sixth, seventh and eighth respondents did not respond to the application. This is usually the case for the obvious reasons that they are not interested parties and will ordinarily abide by the decision of the court. The third, fourth and fifth respondents expressed that they were not opposed to the relief sought by the applicant. The first and second respondents opposed the application.

The background to this application is fairly very simple. The applicant who was the plaintiff in Case No. HC 3959/16, obtained judgment against the first and second defendants who were Davecon Morots Pvt Ltd and Estate Late David C Kamunhu. The second defendant in that case is the third respondent in the current application. The order which was by consent was in the following terms:

“1. The 1st and 2nd defendant shall jointly and severally the one paying for the other to be 	absolved pay to the plaintiff the sum of $388 053.20 being the capital debts.

The 1st defendant shall pay interest on the above sum, calculated at the rate of 5% per annum 	from the date of judgment to the date of full and final payment.

The first defendant shall pay costs of suit in the sum of $5 000.00”

This was the order granted in favour of the applicant on 3 August 2016. Stand No. 12900 Salisbury Township (hereafter referred to as “the property”) is now the centre of the dispute between the parties.  The applicant says despite the judgment being granted in its favour it could not execute on this property, which is mortgaged in its favour, because it forms part of the deceased estate.

In another turn of events this court has on 19 September 2018 in Case No. HC 5228/17 granted judgment in favour of the first and second respondents, as the plaintiffs, against the applicant and the third, fourth, fifth and sixth respondents who were defendants in that case. The order of the court in HC 5328/17 reads as follows:

“It is ordered that:

Judgment is entered in favour of the plaintiffs in the following terms:

First, 2nd and 3rd defendants are hereby ordered to effect transfer of title of Stand No. 12900 Salisbury Township of Salisbury Township lands otherwise known as No 18 Thompson Drive, Gunhill, Harare in favour of the plaintiffs.

Failing compliance with paragraph (a) above, the Sheriff of the High Court be and is hereby authorised to sign all the necessary documents for the conveyancing of title into plaintiffs names.

2nd and 3rd defendants are to pay the plaintiffs’ costs of suit.”

Following this judgment of 19 September 2018, there was communication by the fourth and fifth respondents (who were second and third defendants in HC 5328/17) requesting for title deeds to the property in order to comply with the order of the court.

Gripped by the fear of loss of security to the debt the applicant brought this application on 25 September 2018. This was after an appeal had been noted with the Supreme Court on 24 September 2018 against the decision in HC 5328/17.

At the commencement of the hearing of this matter Mr Samkange who appeared for the first and second respondents raised 3 points in limine, that there was collusion between the applicant and respondents, secondly that the deponent to the founding affidavit had not filed any resolution authorizing him to represent the applicant and lastly that the matter was not urgent. After hearing argument by counsels on these three points in limine I dismissed them.

My short reasons for dismissing the points in limine were that:

There was no evidence to support the alleged collusion between the applicant and any of the respondents

The applicant filed a supplementary affidavit attaching the company resolution. Although its admissibility was challenged I allowed it on the basis that courts do not adhere to strict application of the rules in urgent applications. In any event the circumstances of this matter give rise to an inference of authority in that this application is born out of existing cases in which such resolution was exhibited.

On urgency, I ruled that the matter was urgent. The applicant acted timeously when the need to act arose. Although an appeal suspends the execution of the decision of the court a quo, it was the communication between the first and second respondents with third and fourth respondents which made the applicant to believe that transfer of the property was going to pass to first and second respondents.  The argument by Mr Samukange that the applicant sat on a judgment in its favour since 2016 was not relevant to the issue of urgency.

On the merits, the applicant seeks a temporary prohibitory interdict to stop transfer of stand no. 12900 Salisbury township to the first and second respondents pending the confirmation or discharge of the provisional order.

The requirements for granting an interim interdict are established:

These are:

A Prima facie right

For one to obtain an interim interdict it is necessary to establish a prima facie right.  In the present case the mere fact that the applicant holds a mortgage bond over the property is sufficient enough to establish such right.  It is neither here nor there that the property may or may not form part of the deceased estate. Not only that, applicant holds a judgment in its favour against third respondent.

A reasonable apprehension of irreparable harm if the interim interdict is not granted

There is already a judgment in favour of the first and second respondent to transfer the property into their names.  If transferred, the two acquire real rights.  As of now the first and second respondents have personal rights over this property.  Interim interdict will only be granted if the harm to the applicant is likely to be irreparable.If title passes to the first and second respondents, it will be difficult if not impossible, to restore the status quo.  This is because once the first and second respondent acquire real rights over the property they can deal with it as they wish which may include disposal to a third party.  The applicant has shown that there is likelihood of irreparable harm.  Transfer fees were already paid and there is correspondence to initiate such transfer.

Absence of alternative satisfactory remedy available to the applicant

Mr Bhatasara who appeared for the applicant said the estate of the late David 	Kamunhu was insolvent save this property. There was therefore no satisfactory 	alternative for the applicant if this property was to let go. I agree given the facts 	before me, first and second respondents have not shown that there was a satisfactory 	remedy available to the applicant such as a claim for damages that would adequately 	compensate any loss applicant was likely to suffer.

The balance of convenience whether it favours the applicant or respondents

Mr Bhatasara relied on the 2016 judgment in favour of the applicant as a justification that the balance of convenience leans in favour of the applicant. On the other hand Mr Samukange, while accepting that an appeal suspends the execution of the trial court’s judgment, argued that the balance of convenience favours first and second respondents in that the property does not form part of the deceased estate. Furthermore, he argued, the decision to file the application was not necessary because all applicant should have done was to seek the respondents’ undertaking that they will not proceed with execution of the judgment in the face of an appeal. In other words what Mr Samukange was saying was that applicant could still achieve what he prays in his application through dialogue.  I did not understand this to mean that the application has no merit.

The circumstances of this matter shows that the balance of convenience leans in favour of the applicant more than it does for the respondents. This is so because, not only is the applicant the holder of a real right, though limited over the property in the form of a mortgage bond but has judgment in its favour against the third respondent. On the other hand the first and second respondents are holders of a personal right in the form of an agreement of sale though the purchase price has been paid and have taken occupation but that alone does not change their position.

Thirdly, the applicant has lodged an appeal against the decision of this court which order gives right to the transfer of the property to the first and second respondents. Under common law, an appeal suspends the execution of the judgment appealed against.

These are factors which favour the applicant more than the respondents.

The court, in the exercise of its judicial discretion, finds that the applicant has made a good case warranting the granting of a provisional order as prayed.

IT IS ORDERED THAT:

The application is hereby granted.

First and second respondents to pay applicant’s costs.

Mupanga Bhatasara Attorneys, applicant’s legal practitioners

Venturas & Samukange, 1st & 2nd respondent’s legal practitioners

Rufu-Makoni, 3rd respondent’s legal practitioners

Musunga & Mukaka, 4th & 5th respondent’s legal practitioners