Innocent Okani v Cycle Trek Investments and Messenger of Court Harare N.O

### Preamble
1
HH 468-23
HC 4513
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INNOCENT OKANI

versus

CYCLE TREK INVESTMENTS

and

MESSENGER OF COURT HARARE N.O

HIGH COURT OF ZIMBABWE

MUREMBA J

HARARE, 14 July & 2 August 2023

Urgent Chamber Application

K Gama, for the applicant

J Marange, for the 1st respondent

No appearance for the 2nd respondent

MUREMBA J:  When I was allocated this matter on 10 July 2023, I perused it and came to the conclusion that the matter was not urgent. This was communicated to the applicant’s counsel. However, Mr. Gama for the applicant wrote to the registrar seeking to be granted audience to make submissions on the issue of urgency. I granted the request and set down the matter for hearing on 14 July 2023.

The facts of the matter are that the applicant and the first respondent are involved in a trial in the Magistrates Court. The first respondent which is the plaintiff in the matter sued the applicant who is the defendant for eviction from Shop no. 11 Corner 40 Cameron Street Harare. It is common cause that on 7 July 2023, the applicant arrived late for continuation of trial and found the court having issued a default judgment.  It is on this basis that the applicant prepared and filed the present urgent chamber application for stay of execution of the default judgment pending appeal and review on the next day, 8 July 2023.  The orders sought are couched as follows.

“TERMS OF FINAL ORDER SOUGHT

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

Pending determination by the High Court of the applicant’s appeal case number HC CIV “A” 196/23, and the applicant’s application for review case number HC….., execution of any order granted to the 1st respondent in case number HREC-CG 221/23 shall be stayed.

The first respondent shall pay costs of suit.

INTERIM RELIEF GRANTED

Pending determination of this matter, the applicant is hereby granted the following relief:

The execution of the default judgment that was granted to the 1st respondent on 7 July 2023 in case number HREC-CG 221/23 be and is hereby stayed.”

The applicant is seeking stay of execution of the default judgment pending determination of an appeal that he filed on 5 July 2023 under case number HC CIV “A” 196/23. The appeal was thus filed 2 days before the default judgment was granted on 7 July 2023.  The appeal relates to a ruling that was granted on 20 June 2023 that dismissed some points of law that the applicant had raised intending to stop the trial.  The appeal attacks the court’s dismissal of the points of law.  It is therefore common cause that the appeal is not related to the default judgment that was later granted on 7 July 2023.  After the dismissal of the points of law on 20 June 2023, it took the applicant two weeks to file his appeal and meanwhile the trial was continuing.  Even after filing the appeal on 5 July 2023, the applicant continued with the trail notwithstanding that he had filed an appeal. He never made an application to stay the proceedings pending the determination of the appeal. When the present application was filed, the application for review had not yet been filed.  It was only filed on 11 July 2023, after I had already decided that the matter was not urgent.

When I granted the applicant’s request to be heard and set down the matter for hearing on 14 July 2023, I asked Mr Gama to address me on specific issues relating to urgency.  He submitted that if the default judgment had not been granted on 7 July 2023, the applicant would not have filed the present application for stay of execution.  He submitted that the need to act arose on 7 July 2023 when the default judgment was granted.  He further submitted that there would be irreparable harm if the matter was not dealt with urgently. He also submitted that the applicant had since filed the application for review.  Mr Marange for the first respondent submitted that there is no urgency in the matter as the pending appeal is not related to the default judgment whose execution the applicant is seeking to stay.  He further submitted that at the time the present application was filed, the application for review had not been filed.  It was only filed three days later, on 11 July 2023.  Mr Marange submitted that the urgent chamber application is a nullity as it was hinged on nothing as there was no review that was pending when it was filed.  He prayed that the matter be struck off the roll.

In Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 @ p 193F-G chatikobo J said,

“What constitutes urgency is not only the imminent arrival of the day of reckoning, a matter is urgent if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules.”

In casu the applicant is seeking stay of execution of a default judgment pending determination of a pending appeal and review. He did not sit on his laurels when the default judgment was granted on 7 July 2023.  He prepared and filed the present urgent chamber application to stay execution on the next day, 8 July 2023.  The applicant did not waste time. He acted when the need to act arose because he knew that execution was now imminent following the granting of the default judgment.  If the matter is not dealt with now on an urgent basis, dealing with it later as an ordinary court application will not serve any useful purpose as execution of the default judgment would have been done. The relief sought in this application will be irrelevant. In Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) ZLR 240 (H) MAKARAU JP (as she then was) said,

“In my view, urgent applications are those where if the courts fail to act, the applicants may well be within their rights to dismissively suggest to the court that it should not bother to act subsequently as the position would have become irreversible and irreversibly so to the prejudice of the applicant.

It is my further view that the issue of urgency is not tested subjectively. Most litigants would like to see their disputes resolved as soon as they approach the courts. The test to be employed appears to me to be an objective one where the court has to be satisfied that the relief sought is such that it cannot wait without irreparably prejudicing the legal interest concerned.”

If the matter is not dealt with on an urgent basis there is a possibility of the applicant suffering irreparable harm as the first respondent will proceed to execute the default judgment. Mr Marange for the first respondent did not dispute that there would be irreparable harm to the applicant if execution was to proceed.  He also did not dispute the submission by Mr Gama that the eviction of the applicant was due to take place on the date the matter was being heard, 14 July 2023.  I will thus treat the matter as urgent.

The first respondent also raised a point in limine attacking the certificate of urgency saying that it is defective for failure to give valid reasons for urgency and for the legal practitioner’s failure to properly apply his mind to the issues.  It was submitted that if the legal practitioner had properly applied his mind to the matter, he would have made a finding that the matter is not urgent.  For the reasons discussed above, I have already made a finding that the matter is urgent. I will thus dismiss this point in limine.

The first respondent raised a further point in limine to the effect that this court lacks jurisdiction and that the application is improperly before this court. It was submitted on behalf of the first respondent that the applicant after filing the present application in this court, had since approached the Magistrates Court with a similar application for stay of execution of the same default judgment.  The only difference is that in the Magistrates Court the application for stay was made pending determination of an application for rescission of the default judgment. Mr. Marange submitted that this shows that the applicant is highly litigious.  He further submitted that where a litigant has recourse in the lower court or where the same issues are pending in the lower court, this court must decline jurisdiction. I found the submission confusing because lacking jurisdiction and declining jurisdiction are two different things. When a court lacks jurisdiction it means that the court lacks power or authority to act in a particular manner or to give a particular kind of relief. This refers to a court’s total lack of power or authority to entertain a case. The reason for lack of jurisdiction may be failure on the part of the parties to comply with conditions essential for exercise of jurisdiction or that the matter falls outside the territorial limits of a court. https://definition.uslegal.com/l/lack-of-jurisdiction, accessed on 18 July 2023. If a court has no jurisdiction of the subject matter its pretended judgment is a nullity.  On the other hand, declining jurisdiction refers to a court's discretionary power to decline to exercise its jurisdiction where another court or forum may more conveniently hear a case. https://www.law.cornell.edu/wex/forum_non_conveniens, accessed on 18 July 2023.  In other words, the court refuses to take jurisdiction of a matter it is empowered to determine on the basis that another court or forum has jurisdiction to deal with the matter.

I do not agree with Mr Marange that this court lacks jurisdiction and that this matter is improperly before it. This is because this court is a court of original and inherent jurisdiction. In terms of s 171 (1) (a) of the Constitution, the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.  Original jurisdiction is the right of a court to hear a case for the first time.  In terms of s 176 of the Constitution, the High Court has inherent power to protect and regulate its own process and to develop the common law or the customary law, taking into account the interests of justice and the provisions of this Constitution. Inherent power is that power that is not derived from legislative grant or specific constitutional provision which allows a court to do whatever is reasonably necessary to prevent abuse of the process of the court or to secure the ends of justice. Inherent power consists of all power reasonably required to enable a court to perform efficiently its judicial functions, to protect its dignity, independence and integrity, and to make its lawful actions effective. I can do no better than quote the words of Dube J in the case of Derdale Investments (Pvt) Ltd v Econet Wireless (Pvt) Ltd & Others 2014 (2) ZLR 662 (H) which words I fully associate with. She said,

The High Court is a superior court of record and has original jurisdiction in all civil and criminal matters. It has unlimited original jurisdiction which it exercises unless its jurisdiction is specifically ousted.

At p 670 she went on to say,

Inherent power is unwritten power which superior courts are endowed with.

Inherent power gives the court wide ranging and all embracing powers to deal with any matter that may be placed before them. This means that a court of inherent jurisdiction has default powers which it can exercise in the absence of express power and can deal with all areas of the law and all procedural matters involving the administration of justice.

By virtue of having original and inherent jurisdiction this court has jurisdiction to deal with the present matter. I do not agree with Mr Marange’s submission that where a litigant has recourse in the lower court or where the same issues are pending in the lower court, this court must decline jurisdiction. He did not refer me to any statute or rule of law which specifically ousts the jurisdiction of this court in such instances. Dube J in Derdale Investments (Pvt) Ltd v Econet Wireless (Pvt) Ltd & Others 2014 (2) ZLR 662 (H) said, “The High Court … has concurrent jurisdiction and may exercise its jurisdiction over matters which other courts have jurisdiction. At page 670 she went on to say,

If a litigant chooses to go to the High Court, the court can assume jurisdiction over that person. It can hear any matter that comes before it. It can also review all proceedings of all inferior courts.

The High Court will refrain from exercising its inherent jurisdiction only where its jurisdiction is specifically excluded or ousted by a statute or other law.

Because the High Court has inherent jurisdiction, its jurisdiction cannot be excluded by implication.

An example of express exclusion of the jurisdiction of the High Court is found in s 89(6) of the Labour Court Act [Chapter 28:01] which expressly excludes the jurisdiction of any other court in labour matters in the first instance.

In view of the foregoing, I do not see why I should decline jurisdiction. Declining jurisdiction in such matters is discretionary and the discretion must be exercised judiciously. In the circumstances of this case, the matter that is before this court is different from the matter that is before the Magistrates Court. What is before this court is an application for stay of execution of the default judgment pending appeal and review, whereas what is before the Magistrates Court is an application for stay of execution of the default judgment pending rescission of the default judgment.  An appeal and a review are pending determination in this court, whereas an application for rescission is pending determination in the Magistrates Court. The circumstances under which stay of execution is being sought in the two courts are therefore different. The application for stay of execution that is pending in the Magistrates Court cannot be used to protect matters that are pending before this court.  What if the application in the Magistrates Court fails? As was correctly submitted by Mr Gama, in terms of s 176 of the Constitution this court has the inherent jurisdiction to protect and regulate its own process. It is therefore entitled to do whatever is reasonably necessary to prevent abuse of its process and to secure the ends of justice. The provision is meant to enable this court to perform efficiently its judicial functions, to protect its dignity, independence and integrity, and to make its lawful actions effective. This court cannot therefore decline jurisdiction in the present matter given that it is seized with an appeal and a review. It is entitled to do that which is reasonably necessary to protect the two matters and ensure that the ends of justice are secured.

Mr Marange made a further submission to the effect that this court lacks jurisdiction because a default judgment cannot be reviewed or appealed against. His submission was misplaced because the application does not say that it is the default judgment which is being appealed against and neither does it say that it is the default judgment which is being brought for review.  The applicant simply wants execution of the default judgment stayed pending determination of an appeal relating to different matters and a review of the whole proceedings. I however do agree with him that a default judgment is not appealable unless and until it has become a final judgment. The recourse by the party affected by the default judgment is to apply for its rescission in terms of Order 30 r 1 (1) of the Magistrates Court (Civil) Rules, 2019 which provides that “any party against whom a default judgment is given may, not later than one month after he or she has knowledge thereof, apply to the court to rescind or vary such judgment.” The default judgment only becomes a final judgment if the application for rescission is dismissed. See Order 30 r 2 (3) of the same rules. That is when it becomes appealable. See s 40 (2) of the Magistrates Court Act [Chapter 7:10].  The default judgment in the present matter is not yet a final judgment and yes, as was submitted by Mr Marange it is not yet appealable. However, as I have stated above, it is not the default judgment which is being appealed against. There is therefore no merit in the point in limine by Mr Marange that this court lacks jurisdiction because a default judgment cannot be appealed against.

As was correctly submitted by Mr. Gama, in terms of s 26 of the High Court Act, this court has “power, jurisdiction and authority to review all proceedings and decisions of all inferior courts of justice, tribunals and administrative authorities within Zimbabwe.” In terms of s 171 (1) (b) of the Constitution, “the High Court has jurisdiction to supervise magistrates courts and other subordinate courts and to review their decisions.” A default judgment is a decision. This means that a default judgment of the Magistrates Court is reviewable by this court. So, the default judgment that was granted in the Magistrates Court on 7 July 2023 is reviewable by this court. It was therefore incorrect for Mr Marange to submit that this court lacks jurisdiction because a default judgment cannot be reviewed.

I thus find no merit in the point in limine that this court lacks jurisdiction and that this matter is improperly before this court. It is hereby dismissed.

The merits

As I was writing this judgment and was about to proceed to the merits of the application, I then received correspondence from the first respondent’s lawyers which was addressed to the applicant and copied to the registrar.  It was to the effect that on 19 July 2023 the parties had entered into a deed of settlement in the Magistrates Court and had consented to the rescission of the default judgment of 7 July 2023.  On 21 July 2023 an order by consent for the rescission of the default judgment was granted. The first respondent’s lawyers were thus asking the applicant’s lawyers to advise me of this development so that I would not proceed to issue an order or a judgment in the present matter. I asked the registrar to invite the lawyers to come and address me on how I should dispose of the matter, but no one came. Instead, Mr Gama wrote a letter to the registrar confirming that the parties had had the default judgment rescinded by consent.  He went on state that the parties were however haggling over how the trial should proceed in the Magistrates Court.  He stated that because of this unresolved issue, the applicant in the present matter still wants to prosecute his appeal and application for review in this court. He further averred that the applicant still needs the protection that can be afforded by the present urgent chamber application pending the determination of the appeal and the review.

Mr Gama made a request that the parties be allowed to appear before me to seek guidance on how the matter should proceed. He did not make it clear which matter he wants me to give guidance on. If he is referring to the trial in the Magistrates Court, I must say that I have no powers to meddle in that trial. It is for the Magistrates Court to do that.  If he is referring to the present urgent chamber application, I must say that I need not give any guidance, but to simply proceed to finish writing this judgment since I had heard the parties and had reserved judgment.  I had only stopped writing the judgment thinking that the parties would, through their lawyers, advise me on how I should dispose of the matter since the default judgment which forms the basis of this application had been rescinded.  It is common cause that what prompted the filing of the present application was the grant of the default judgment. The present application was made in order to stay its execution pending determination of the appeal and the review that the applicant filed. I thought that it was common cause that once the default judgment was rescinded, the present application would naturally fall away. The interim relief that the applicant came seeking reads,

“Pending determination of this matter, the applicant is hereby granted the following relief:  The execution of the default judgment that was granted to the 1st respondent on 7 July 2023 in case number HREC-CG 221/23 be and is hereby stayed.”

Mr Gama should know that with rescission of the default judgment having been granted, there is no more judgment that the first respondent can execute pending appeal and review. Therefore, the present application for stay of execution can no longer be pursued as there is no longer anything to stay. The noble thing that Mr Gama should have simply done was to withdraw the present application. Since he did not do that, I will dismiss the application.

In the result, it be and is hereby ordered that the application is dismissed with costs.

Gama & Partners, applicant’s legal practitioners

Mberi Tagwirei & Associates, first respondent’s legal practitioners