Godfrey Nzuma v Misheck Gororo and Others

### Preamble
1
HH 471-23
HC 6649/21
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HC 6353/21

MISHECK GORORO

And

GODTREV INVESTMENTS (PVT) LTD

And

TAVAZIVA MUGADZA

And

GODFREY NZUMA

HC 6649/21

GODFREY NZUMA

Versus

MISHECK GORORO

And

TAVAZIVA MUGADZA

And

GODTREV INVESTMENTS (PVT) LTD

And

REGISTRAR OF COMPANIES N.O

HIGH COURT OF ZIMBABWE

CHILIMBE J

HARARE  3 March and 31 July 2023

Opposed application

R.G. Zhuwarara for applicant

H. Madzongwe for first respondent

S.T. Mutema for second and third respondent

No appearance by fourth respondent

CHILIMBE J

BACKGROUND

[1] The two matters HC 6353/21 and 6649/21 were consolidated with the consent of the parties. I invited the parties to file supplementary heads of argument addressing the opposition under HC 6649/21.

[2] The inquiry was triggered by the fact that papers filed in opposition by second and third respondents essentially supported in material respects, the application and relied sought by applicant under HC 6649/21. I will thus focus on that part of the dispute in the ruling herein.

THE DISPUTES BEFORE THE COURT

[3] The background goes thus; -at the centre of the parties` disputes under both case numbers is third respondent company (“Godtrev Investments”) whose ownership and control is in issue. The main or leading contestants over that asset are basically applicant and first respondent, referred to herein as Mr Nzuma and Mr. Gororo respectively.

[4] From the papers before me, second respondent Mr. Mugadza has basically associated himself with Mr. Nzuma. The board resolution authorising Mr. Mugadza to represent Godtrev Investments herein was issued by one Godfree Nzuma. This person purported to be a director and secretary of Godtrev Investments.

[5] It is not clear whether Godfree Nzuma is the same Godfrey Nzuma, the applicant herein. The likelihood is high. As noted, Mr. Mugadza is not opposing the relief sought. He proceeded, to fully support and attest to the correctness of the cause of Mr. Nzuma herein.

[6] For completeness, applicant herein seeks an order under HC 6649/21directing the fourth respondent to cancel share certificates allotted to second respondent. The relief is pursued under the aegis of s 62 of the Companies and Other Businesses Act [ Chapter 24:31] (Coba).

IS THERE A VALID OPPOSITION BY SECOND AND THIRD RESPONDENTS?

[7] In the supplementary written submissions filed by the parties, the arguments went as follows. Firstly, applicant stated in paragraph 35 of its written submissions (filed on 20 February 2023) that; -

“Having considered the submissions advanced by the 2nd and 3rd Respondents, the Applicant can do no better than simply abiding by the submissions advanced therein.”

[ 8] Secondly, the arguments on behalf of second and third respondent were that their opposition was valid. It was not disputed that Mr. Tavaziva and Godtrev did not oppose the relief sought. It was contended that as parties cited in legal proceedings, the two had a right to present a position addressing their interest.

[ 9] My attention was drawn to r 58 of the High Court Rules, 2021.The argument being that second and third respondent met the requirements of that rule. and the requirements therein of a valid opposition. It was further contended that a party cited in legal proceedings must be accorded an opportunity, as part of the right to be heard, to make representations.

[10] Cited in support of this conclusion were; Peter Valentine v Mydale International Marketing (Pvt) Ltd and Anor HH 233-17; Dhliwayo v Warman Zimbabwe (Pvt) Ltd and 2 Ors HB 12-22; Drum City (Pvt) Ltd v Garudzo SC 57-18 and Parkham v Adhesive Products SC 100-21. I will return to these authorities shortly.

[11] Finally, second and third respondents distinguished the circumstances of present matter from those in the Constitutional Court decision of Chamisa v Mnangagwa & 24 Ors CC 21/19. To begin with, Chamisa v Mnangagwa dealt with the specific and explicit requirements of r 17 (2) of the Constitutional Court Rules which provide that; -

(2) The notice of opposition shall be supported by affidavit deposed by a person who can swear positively to the facts, which details the facts and the basis on which the respondent opposes the application, together with any supporting documents which are relevant.

[12] And on that point, it was submitted that the Constitutional Court in Chamisa v Mnangagwa made a specific finding based on r 17 (2) above in the following terms [ at page 27]; -

“When a person acts as a respondent in terms of r 17(2) of the Rules, he or she does so for the specific purpose of opposing the granting of the relief sought by the applicant and challenging the veracity of the grounds on which the application is based. He or she must meet the procedural and substantive requirements, compliance with which confers on a respondent the right to appear before the Court and be heard in his or her own cause”.

[ 13] It may also be added, for completeness, that the Constitutional Court in Chamisa v Mnangagwa was concerned with a challenge, in terms of s 93(1) of the Constitution of Zimbabwe Amendment (No. 20) 2013 (“the Constitution”), to the validity of the election of the first respondent therein as President. I will return to this point in due course.

THE HIGH COURT RULES ON OPPOSITION

[14] The High Court Rules do not have a corresponding provision in the exact terms of r 17(2) of the Constitutional Court Rules. What in indisputable however is that they do provide, whenever reference is made to “opposition”, to the need for a notice of opposition and opposing affidavit.

[15] The word “opposition” recurs a total of 45 times in the rules. It is not necessary to refer to each and every instance where such reference is made. Relevant to the present discourse are rules 58(1) and (2) which set an application and its opposition as the two sides to a dispute. Then r 58 (8) which requires a respondent to an application to attach an opposing affidavit and annexures in support of its position. Rules 59 (6), (7), (8), (9), (10) then (14) and (15) all make reference to a notice of opposition and opposing affidavit.

[16] Quite clearly, the rules require a party cited as respondent in an application is required, in simple terms, to resist the relief sought via a notice of opposition, opposing affidavit and documentary annexures where necessary.

[17] At this stage I revert to the argument by second and third respondents that once a party is cited in proceedings, it must by right, file its opinion. It matters not, so it was argued, that the respondent has no quarrel with the relief sought.

[ 18] I must state that having considered the authorities cited by second and third respondents, my conclusion is that those decisions were misplaced. It was never the carte blanche prescription by the court that respondents file papers where the relief sought was not controverted. In Peter Valentine v Mydale International Marketing (Pvt) Ltd and Anor, (supra), the court was confronted with a civil imprisonment matter. In fact, the court was swayed into accommodating the applicant principally because it would have been grossly unfair to deprive him of an opportunity to avert a 100-day jail term.

[ 19] In fact CHITAKUNYE JA remarked as follows on the matter; -[ at page 1 of the unreported version ] , “I took the above decision based on the circumstances of the case which in my view, makes for sad reading in the administration of justice.”

[ 20] Dhliwayo v Warman Zimbabwe (Pvt) Ltd and 2 Ors, (supra), this court per DUBE-BANDA J dealt with a simple principle. It was incorrect for an applicant to appropriate to itself, the conditions upon which a respondent could oppose the application.

[ 21] The following excerpt at [15] in Drum City (Pvt) Ltd v Garudzo(supra) will clearly distinguish the matters that concerned the Supreme Court therein. The court`s dictum is clear. It exhorted the labour dispute framework to include the right of affected persons to be included in proceedings affecting their interest.

[ 22] It cannot, by whatever stretch of imagination, be taken as a blanket approval for respondents who have no quarrel with an applicant`s claim to persist in opposing applications where they are cited. It was stated thus at [15]; -

“It is beyond dispute that such an employee has a direct and substantial interest in the confirmation proceedings before the Labour Court. He or she has the right to be heard in proceedings that may fundamentally affect their interests. Even if the nature of the hearing mentioned in ss (5b) is not clear, one may safely assume that like in any hearing, all interested parties must be afforded the opportunity to be heard, unless they choose not to be heard. Only then would the Labour Court be in a position to fully determine the matter and render a judgment that meets the justice of the case.”

[23] Likewise, I was not certain as to the persuasive value of citing Parkham v Adhesive Products (supra). This was a matter in which a party had persisted in ill-advice against a clear bar. The very party who capped it all by appealing against a default judgment.

[24] I come to Chamisa v Mnangagwa. A reading of both the court`s dictum and ratio on the propriety of a notice of opposition and its affidavits reveals one matter. That despite the distinctions noted by applicant in its argument, there are two indelible precepts applicable to the present matter. A respondent`s notice of opposition and opposing affidavit must firstly controvert the application and its causa and secondly, resist the relief sought by such application. There must be a controversy between the parties.

DEFINITION OF CONTROVERSY

[25] It is a trite position that the purpose of courts is to resolve real disputes between parties by application of the law. So fundamental is this principle that in whatever direction in the wide spectrum of legal principles one may seek to look, the proposition keeps cropping up. From jurisdiction of the court, clarity of pleadings, principles of mootness, or essentials of a valid judgment. Judicial endeavour in litigation is aimed at extending legal remedies to address parties` conflicts.

[ 26] In the present matter, what investigation will the court need to conduct as between second and third respondents on one hand, and applicant on the other?  In closing this point, I refer to a quotation by MALABA JC in a paper presented at a recent forum which went thus; -

“A judgment is a decision given by a court or tribunal on the relief claimed, which resolves a controversy and determines the rights and obligations of the parties in accordance with the applicable law. It is the final act in a case by which a court accomplishes the purpose of its creation. A valid judgment resolves or settles the contested issues submitted to the court in an action or proceeding, and fixes the rights and liabilities of the parties. The lawsuit is ended by a judgment, since it is regarded as the court’s official pronouncement of the law on the action that was pending before it. It states who wins the case, and what remedies the winner is awarded. In other words, it is a determination by a court that on matters submitted to it for decision, a legal duty or liability does, or does not, exist, or that, with respect to a claim in suit, no cause of action exists or that no defence exists. In that sense, a judgment signifies the end of the court’s jurisdiction in the case. It is a means of achieving an objective that is universal: the just resolution of conflict which is the core business of every court of law.” [Underlined for emphasis]

THE HISTORY OF THIS DISPUTE

[27] As observed above, this matter evolves from the disaffection that blighted shareholders and other associates to third respondent entity Godtrev Enterprises. There has been a flurry of litigation associated with the parties` interest in Godtrev Enterprises.  This led this court per MUNANGATI-MANONGWA J to attempt a rationalisation of the turbulence by an order dated 12 January 2022.

[28] What this ebullience demonstrates is the inability or unwillingness of parties to reflect on the cause of their dispute and logically approach its resolution. By whatever means. The matters which troubled the parties could possibly be addressed by the Registrar of Companies under his or her powers in terms of Part II of Chapter II of the

[29] That aside, even where parties elect to pursue remedies in the courts, surely, they should craft some basic strategy as to how to go about it? Who are foes? Who are our allies? Who shall associate with us in the legal proceedings? Who shall file supporting affidavits?  How shall we approach the courts? What exactly is the relief we require?

[ 30] My firm conviction is that had the parties considered the above matters, as they were obliged to have done, then the present predicament would have been averted. Where there are respondents who have filed opposing papers to a cause they are supportive of.

DISPOSITION

[31] The point taken in limine by applicant raising the fatal defects in the notice of opposition its opposing affidavit filed on by and on behalf of second and third respondent must succeed. The papers are improperly before the court and must be expunged. On the question of costs, I am inclined to let each party bear its own for two reasons.

[32] Firstly, the parties engaged in this exercise to ventilate a query in assisting the court. Secondly, the applicant subsequently raised a number of extraneous arguments which strayed away from the court`s inquiry. For clarity, those submissions will be disregarded and expunged as well. A number of them seek to reopen argument and without following the proper route prescribed by the rules of court.

It is ordered; -

1.That second and third respondents notice of opposition and opposing affidavit be and are hereby ruled improperly before the court in case number HC 6649/21 and expunged from the record.

John Mugogo Attorneys-applicant`s legal practitioners

Mufari and Paradzayi-first respondent`s legal practitioners

Stancilous and Asspociates-second and third respondents` legal practitioners

CHILIMBE J_____31/7/23