Chegutu Municipality v Phineas Mariyapera

### Preamble
1
HH 229-21
HC 6085/19
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CHEGUTU MUNICIPALITY

versus

PHINEAS MARIYAPERA

HIGH COURT OF ZIMBABWE

FOROMA J

HARARE, 9 January 2020 & 6 May 2021

Opposed Matter

C. Warara, for the applicant

Ms V.C. Maramba, for the respondent

FOROMA J: This is an application for rescission of judgment in terms of Order 49, Rule 449 of the High Court Rules, 1971.  The basis of the application is that the Court which granted Summary Judgment in case number HC 11563/18 did so in error and in the absence of the applicant.

Briefly the facts are that, the current respondent sued the applicant for certain relief as is apparent from HC 11563/18. After summons were duly served on the applicant, the applicant filed an appearance to defend. The respondent, satisfied that the applicant had no valid defence, filed an application for summary judgment which it duly served on the applicant, who timeously filed a notice of opposition, but unfortunately under a wrong case number.

Mr Gijima who was representing the respondent at the time used the firm Mapaya & Partners of 51 Selous Avenue, Harare as his address of service in this matter, that is in the matter in which the respondent had sued applicant.  The applicant’s notice of opposition to the summary judgment application was filed on 3 June 2019 and as I said above timeously and served on the respondent’s correspondent legal practitioners on 5 June 2019.  It is not clear exactly when Messrs Mapaya passed on the document to E. Gijima Attorneys.  E Gijima Attorneys proceeded to apply for Summary Judgment after receiving applicant’s plea and served the applicant who in turn filed a notice  of opposition under case number HC 4180/19.  The notice of opposition to the application for summary judgment does quote the correct case number under which the respondent applied for summary judgment.  A mistake was made in the Civil Registry in that the application for summary judgment was allocated a new case number which was different from the one allocated to the summons commencing action namely HC 1156/18. Applicant duly served respondent with the notice of opposition on 5 March 2019 at the respondent’s address of service. The notice of opposition had a new case No. namely HC 4180/19 and the correct case number HC 11563/18 as a reference number. E Gijima Attorneys proceeded to obtain summary judgment on the unopposed roll against the applicant which matter was set down under case No. 11563/18 and not HC 4180/19.

At the hearing of the application for summary judgment the Court was not advised of the notice of opposition to the application for summary judgment which had been filed under case number HC 4180/19.  When applicant got to know that a default judgment had been obtained it approached the Court with the current application seeking to have a rescission of the summary judgment granted in default.  For reasons that are not clear, this application was opposed even though there is no dispute of facts as to exactly what transpired, namely that there was indeed an error in the grant of the summary judgment application in default as the application for summary judgment had infact been opposed.

Mr Gijima in a letter dated 17 July, 2019, addressed to Warara & Associates made the following misleading point,

“Please note reference being drawn to a letter dated 3 July 2019.  Please not that as of the 3rd of 	June 2019, the date a notice of opposition was supposed to be filed and served and up to the date 	of the order, no opposing papers had been filed.  As you are very much aware, an order was issued 	in open Court on the 26th of June 2019, see attached roll.” This appears on page 48 of the bound 	record.

The only truth from the quoted passage is that an order was obtained in open court, the rest is totally misleading.  I have made reference to this for purposes of disposing of the order of costs prayed for by the applicant, because Miss Maramba properly abandoned opposition to the relief sought after a brief exchange with the Court.  The applicant has moved the court to grant an Order rescinding the judgment with costs on a punitive scale to be borne de bonis propriis by respondent’s counsel. This request for a punitive order was made initially when the application for rescission of judgment was made and I refer specifically to paragraph 18 on page 4 of the papers where the applicant says the Respondent legal practitioner’s conduct of obtaining a Court Order in bad faith must be punished with costs de bonis propriis as a mark of displeasure of the Court on such conduct.

Despite this warning, respondent’s counsel persisted with advice to his client that the application for rescission of judgment should be opposed causing further costs to be incurred unnecessarily.  When the applicant’s counsel filed applicant’s heads of argument, it persisted with the prayer for cost on the punitive scale de bonis propriis.  Despite this, respondent’s counsel (Mr E Gijima) proceeded to file heads of argument in which he sought to buttress respondent’s opposition to the applicant’s application for rescission of judgment, implying wrongly, that there was no merit in the Court application for rescission of judgment.

This is clearly a case where the Court has been abused by respondent’s Counsel, who despite being aware of an error that had been made, did not advise the Court hearing the application for summary judgment that he was in possession of a notice of opposition, albeit filed under a wrong case number.  Instead respondent’s counsel pretended that no opposition to the application for summary judgment had been filed and that the Court was to proceed on the basis that this was an unopposed application for summary judgment.

The Court is further abused by the respondent’s counsel Mr Gijima who, despite an application for rescission of the judgment which he had caused to be obtained in error being filed, improperly persisted in advising his client that they were on safe ground to oppose the application for rescission of judgment, when clearly the respondent had no basis for opposing such an application as confirmed by the abandonment of the opposition at the hearing of the application for rescission of judgment.

The respondent’s counsel has had more than ample opportunity to reflect on the risk he was taking for his client and himself for persisting with opposition in this matter, especially against the background that he had himself deliberately misled the Court at the time he moved for the grant of summary judgment on the unopposed roll.  He had an obligation to advise the Court that he was in possession of a notice of opposition which may not have been in the Court’s file because it was filed under a wrong case number, so that the Court would have been able to determine whether or not it would be proper in the circumstances to grant the relief of the summary judgment that it was being moved to grant.

This conduct is clearly and deliberately dishonest on the part of the legal practitioner who has a duty to always be truthful to the Court.  I find that the attitude adopted by the applicant’s counsel that is seeking a punitive Order of costs to be borne de bonis propriis against Mr Gijima to be totally justified in the circumstances. There was no excuse for the persistence in opposing this application when at various stages an opportunity would have presented for the respondent to appreciate that it could not possibly get any court to save the judgment which the applicant was seeking rescission of.

In the circumstances, I find that the punitive order of costs prayed for by the applicant against MR Gijima is one which the respondent’s counsel has earned for himself in light of the concession made by Miss Maramba.

I therefore hand down the following order:

It is ordered that

(1) 	The default judgment granting summary judgment to the respondent handed down 		by this honourable Court on the 26th of June, in favour of the respondent in HC 			11563/18 be and is hereby rescinded.

(2) 	The applicant’s legal practitioner Mr E Gijima is to bear the applicant’s costs on a 		legal practitioner and client scale de bonis propriis.

Warara and Associates, applicant’s legal practitioners

E Gijima Attorneys, respondent’s legal practitioners