Court name
Supreme Court of Zimbabwe
Case number
SC 35 of 2003
Civil Appeal 298 of 2002

Chioza v Sawyer and Another (98/02) (SC 35 of 2003, Civil Appeal 298 of 2002) [2003] ZWSC 35 (05 November 2003);

Law report citations
Media neutral citation
[2003] ZWSC 35













DISTRIBUTABLE
(27)


Judgment
No. SC 35/03


Civil
Appeal No. 298/02








AGSON
MAFUTA CHIOZA v





(1) JOHN
LEWIS SAWYER (2) THE REGISTRAR OF DEEDS








SUPREME
COURT OF ZIMBABWE


SANDURA  JA,
CHEDA JA & GWAUNZA JA


HARARE,
OCTOBER 14 & NOVEMBER 6, 2003








J
Wood
,
for the appellant





A
M Gijima
,
for the first respondent





No
appearance for the second respondent





SANDURA  JA:
This is an appeal against a judgment of the High Court, in terms of
which several applications which had
been heard together were decided
in favour of the first respondent (“Sawyer”). Dissatisfied with
that result, the appellant
(“Chioza”) appealed to this Court.





The
factual background in the matter is as follows –






1. On 1 November 1994 Chioza
and Sawyer concluded a lease agreement, in terms of which Chioza
leased Rothbury Farm (“the farm”)
to Sawyer. Clause 14 of
the agreement, in relevant part, provided as follows:







“… the
Lessor agrees that the Lessee shall have the right of first refusal
to purchase Rothbury at a price no greater than the Seller
would be
prepared to accept from any other
bona
fide

third party purchaser …”.







2. In July 1997 Chioza, without
ascertaining whether Sawyer wished to purchase the farm in terms of
clause 14, sold and transferred
the farm to Neville Mujikwa
(“Mujikwa”) for two million dollars. When Sawyer became aware
of the sale, he filed a court application
in the High Court, case no.
HC 4787/98, seeking an order setting aside the sale, authorising
the Registrar of Deeds to cancel
the registration of the farm in
Mujikwa’s name and directing that he be given an opportunity to
purchase the farm for two million
dollars in terms of clause 14.
In his founding affidavit he averred that he would certainly have
wished to purchase the farm
had he been given the chance to do so.
The application was successful and Sawyer was given fourteen days
within which to exercise
the option to purchase the farm. That was
on 3 March 1999.







3. When Sawyer failed to exercise
the option within the fourteen day period, he filed an urgent chamber
application in the High Court
(case no. HC 4468/99) seeking an
extension of time within which the option had to be exercised. The
application was placed
before the learned judge who had granted the
order in case no. HC 4787/98, but it was dismissed. However,
about four months
later, a similar application, case no. HC 5459/99,
was placed before another judge of the High Court and, on 29 July
1999,
Sawyer was granted the extension which he had sought. From
the record, the circumstances in which this application was made and
granted are not clear. What is clear, however, is that when the
application was heard both parties were legally represented, and
that
no appeal was ever noted against the order that was made. In the
circumstances, Chioza’s complaint about this order cannot
be
entertained by this Court.







4. Immediately after the
extension of the time within which the option to purchase the farm
was to be exercised, Sawyer informed Chioza
in writing that it was
his intention to purchase the farm for two million dollars.
Thereafter, in October 1999 Chioza filed a court
application in the
High Court, case no. HC 15214/99, seeking an order releasing him
from the obligation to transfer the farm
to Sawyer on the ground that
Sawyer had breached the order granted in case no. HC 4787/98.
The application was dismissed with
costs on 13 January 2000.
The court found that Sawyer had not breached the order when he
directed that the farm be registered,
not in his name, but in his
company’s name. No appeal was noted against that decision.







5. On 28 March 2000 Chioza
filed another court application in the High Court, case no.
HC 4111/2000, seeking an order cancelling
the sale of the farm
to Sawyer on the ground that he wanted payment of the sum of two
million dollars by means of a bank cheque and
not by means of a bank
guarantee provided by Standard Chartered Bank. He alleged that in
the circumstances Sawyer had failed to
comply with the order issued
in case no. HC 4787/98.







6. On 18 May 2000, before
case no. HC 4111/2000 was heard, and after Chioza had refused to
sign the transfer documents,
Sawyer’s lawyers, who had already been
granted the necessary power of attorney by the Deputy Sheriff on
30 March 2000, transferred
the farm to their client in
accordance with the order issued in case no. HC 4787/98. When
Chioza became aware of the transfer,
he filed an urgent chamber
application in the High Court, case no. HC 6582/2000, on 13 June
2000, seeking a provisional
order calling upon Sawyer to show cause
why the transfer of the farm to him should not be cancelled. The
provisional order sought
was granted on 15 June 2000 and was
served on Sawyer’s lawyers on 16 June 2000. When the urgent
chamber application
was filed, Chioza was aware that his court
application, case no. HC 4111/2000, in which he sought an order
cancelling the sale
of the farm to Sawyer, would be heard on 22 June
2000.







7. On 22 June 2000 case no.
HC 4111/2000 was heard and dismissed with costs on the legal
practitioner and client scale.
The learned judge who heard the
matter observed that Sawyer had complied with the order issued in
case no. HC 4787/98 as he
had exercised the option to purchase
the farm within the time provided in the order, and was able and
willing to pay the purchase
price of two million dollars.
Thereafter, Chioza collected the sum of $1 800 000.00 from
Sawyer’s lawyers, which was
the balance of the purchase price after
capital gains tax had been deducted.







8. On 27 July 2000 Sawyer
filed a court application in the High Court, case no. HC 8261/2000,
seeking an order barring Chioza
from instituting any court
proceedings against him concerning the farm without the leave of the
court. The application was opposed
and is one of the applications
which the learned judge in the court
a quo
determined.







9. After the dismissal of
Chioza’s court application in case no. HC 4111/2000, Chioza’s
legal practitioner renounced agency
in case no. HC 6582/2000
which, as already stated, was an urgent chamber application in which
Chioza sought the cancellation
of the transfer of the farm to Sawyer,
alleging that the transfer had been fraudulent. The legal
practitioner renounced agency
because he was not prepared to persist
with case no. HC 6582/2000, bearing in mind the decision in case
no. HC 4111/2000.
However, as Chioza intended persisting with
case no. HC 6582/2000, he briefed another legal practitioner
who, on 1 August
2000, wrote to Sawyer’s lawyers as follows:






“Be
advised that we now act for Mr Chioza. We have been instructed
to file an appeal in case number HC 4111/2000 and await
the
reasons for judgment and confirmation that you are acting for
Mr Sawyer in this ma
tter
and in HC 6582/00 before we file and serve our client’s notice
of appeal. Please confirm.






We understand the above quoted
cases are the only ones outstanding between the parties. If there
are others please advise us.
We intend to do our best to resolve
this dispute which we understand goes back for some years now.”






10. On 9 August 2000
Sawyer’s lawyer replied as follows:






“Thank
you for your letter dated the 1
st
of August 2000. …





We
… can safely state that the only matters outstanding
vis-à-vis
your client and my client are case no. HC 6582/00 and case no.
HC 8261/00. As far as we are concerned case no. HC 4111/00
was dealt with and is concluded.






Given the judgment received in
case no. HC 4111/00, we felt that your client’s application
under (case no. HC) 6582/00 fell
away. However, you seem to want to
pursue the matter. We now request for further time in which to file
our opposing papers as
we are out of time. Kindly afford us
sufficient time to brief (an) advocate and get our papers in order. …







In the light of the above, we now
look forward to your consent to afford us further time to get our
papers in order in respect of
(case no. HC) 6582/00.”






The record does not indicate that
there was a reply to this letter.






11. On 23 August 2000 the
provisional order granted in case no. HC 6582/2000 on 15 June
2000 was confirmed. Sawyer’s
lawyers had not filed any papers
opposing the confirmation of the provisional order because Chioza’s
former legal practitioner
had indicated that in view of the decision
in case no. HC 4111/2000 he would urge Chioza not to pursue the
matter. A default
judgment was, therefore, granted.







12. On 5 September 2000
Sawyer filed a court application in the High Court, case no.
HC 9558/2000, seeking the rescission
of the default judgment
granted in case no. HC 6582/2000. About a week later, he filed
an urgent chamber application for stay
of execution, case no.
HC 9559/2000, seeking a provisional order calling upon Chioza to
show cause why the cancellation of the
transfer of the farm to him
(i.e. Sawyer), which had been ordered in case no. HC 6582/2000,
should not be stayed. The order
sought was granted on 13 September
2000.







13. On 11 January 2001
Chioza’s appeal in case no. HC 4111/2000 was heard by this Court
and was dismissed with costs on the
legal practitioner and client
scale. See
Agson
Mafuta Chioza v John Lewis Sawyer

judgment no. SC 29/2001 (not yet reported).







14. In December 2001 Chioza filed
a chamber application in the High Court, case no. HC 9558/2000,
seeking the dismissal of Sawyer’s
court application in case no.
HC 9558/2000 for want of prosecution. The chamber application
was given the same case number
as the court application. As already
indicated, in that court application Sawyer sought the rescission of
the default judgment
granted against him in case no. HC 6582/2000.







15. On 10 January 2002,
Sawyer’s court application, case no. HC 9558/2000, was
dismissed for want of prosecution. What
had happened was that when
Chioza’s chamber application for the dismissal of Sawyer’s court
application was served on the firm
of legal practitioners acting for
Sawyer, the legal practitioner handling Sawyer’s case was on leave,
and the legal practitioner
who was supposed to handle her cases
whilst she was on leave did not do so owing to a mis-interpretation
of the nature of the application.
Consequently, no opposing papers
were filed on behalf of Sawyer, and a default judgment was granted in
favour of Chioza. The
learned judge who dismissed the court
application for want of prosecution granted Chioza leave to enforce
the order issued in case
no. HC 6582/2000 which directed the
Registrar of Deeds to cancel the Deed of Transfer executed in
Sawyer’s favour.







16. On 12 February 2002
Chioza instituted a civil action in the High Court, case no.
HC 1413/2002, claiming Sawyer’s eviction
from the farm and
holding over damages in the sum of $27 778 per day. After
entering appearance to defend the action, Sawyer
filed a plea in bar,
alleging that the matter was
res
judicata
.







17. On 14 February 2002, in
case no. HC 1431/2002, an urgent chamber application filed by
Sawyer, the High Court, by consent,
granted an order interdicting the
Registrar of Deeds from cancelling the Deed of Transfer executed in
Sawyer’s favour, pending
the consolidation, hearing and
determination of a number of cases between the parties.







18. On 22 February 2002
Sawyer filed a court application in the High Court, case no.
HC 1787/2002, seeking the rescission
of the default judgment
granted against him on 10 January 2002 in case no. HC 9558/2000
when his court application was
dismissed for want of prosecution.







19. On 25 February 2002
Sawyer filed an urgent chamber application in the High Court, case
no. HC 1788/2002, seeking the consolidation
of the following matters
so that they would be heard together as case no. HC 10536/2000 –
HC 6582/2000, HC 8261/2000,
HC 9558/2000,
HC 9559/2000, HC 1413/2002, HC 1431/2002 and
HC 1787/2002. Thereafter, on 4 March 2002,
the learned
judge who heard the urgent chamber application consolidated only four
of the seven matters and heard them on 10 May
2002. The cases
which were consolidated are – HC 8261/2000, HC 9559/2000,
HC 1413/2002 and HC 1787/2002.
Regrettably, there is
nothing in the record indicating why case no. HC 6582/2000 and
case no. HC 9558/2000 were not included
in the consolidation
order. It may very well be that the learned judge overlooked
including them, or did not consider it necessary
to specifically
mention them in the order because they were incorporated in case no.
HC 9559/2000 and case no. HC 1787/2002
by reference, their
files being reference files in those cases.







20. Nevertheless, the files in
both cases were before the learned judge in the court
a quo,
as part of case no. HC 10536/2000, and the issues in both of
them were extensively canvassed by the parties in the affidavits
filed by them and, obviously, at the hearing of the consolidated
matters. In addition, it is clear from a perusal of the opposing
affidavits filed by Chioza in case no. HC 9559/2000 that he
understood that application to be an application involving the
rescission
of the default judgment granted in case no. HC 6582/2000.
Accordingly, he argued that Sawyer was in wilful default when he
did not file opposing papers in case no. HC 6582/2000. In any
event, when the various cases were consolidated, the intention
was to
bring to finality, once and for all, the cases still outstanding.
That is what the learned judge did. In my view, neither
party was
prejudiced by that approach.






As
already stated, the learned judge determined all the cases before her
in Sawyer’s favour. I now wish to consider whether
that was
correct.





CASE
NO. HC 6582/2000





This
is the case which prompted the filing of several chamber applications
and court applications in the High Court by the parties
to this
appeal, after the disputes between them had been put to rest by this
Court in
Agson Mafuta
Chioza v John Lewis Sawyer supra
.






It was an urgent chamber
application filed in the High Court by Chioza on 13 June 2000
seeking a provisional order calling
upon Sawyer to show cause why the
transfer of the farm to him, which had been effected on 18 May
2000, should not be cancelled.
The provisional order was granted on
15 June 2000.







The factual background was as
follows. When Chioza refused to sign the relevant documents in
order to transfer the farm to Sawyer
in terms of the order issued in
case no. HC 4787/98 on 3 March 1999, the obligation to do
so fell on the Deputy Sheriff.
He in turn granted a power of
attorney to Sawyer’s lawyers authorising them to sign the documents
and effect transfer of the
farm to their client. That was on
30 March 2000.







On 31 March 2000 Chioza
visited the Deputy Sheriff at his offices and informed him - (a) that
he had not refused to sign the
documents transferring the farm to
Sawyer, but had refused to sign documents transferring the farm to a
company nominated by Sawyer;
(b) that he had not been paid the
purchase price of two million dollars; and (c) that he had filed a
court application in the High
Court, case no. HC 4111/2000,
seeking an order cancelling the sale agreement.







Believing what Chioza had told
him, the Deputy Sheriff immediately telephoned Sawyer’s lawyers and
informed them that he was withdrawing
his signature on the power of
attorney and transfer papers. He confirmed that in writing on
3 April 2000, and requested Sawyer’s
lawyers to return the
signed documents to him. That request was ignored.






Thereafter,
on 18 May 2000 Sawyer’s lawyers used the power of attorney and
transfer documents signed by the Deputy Sheriff
to transfer the farm
to their client in accordance with the order issued in case no.
HC 4787/98. When Chioza became aware
of the transfer, he filed
an urgent chamber application in the High Court, case no.
HC 6582/2000, on 13 June 2000, seeking
a provisional order
calling upon Sawyer to show cause why the Deed of Transfer executed
in his favour should not be cancelled.
He alleged that the farm had
been fraudulently transferred to Sawyer because Sawyer’s lawyers
had used a power of attorney issued
to them by the Deputy Sheriff
when they knew that the Deputy Sheriff had withdrawn his signature.
As already stated, the provisional
order sought was granted on
15 June 2000, and was confirmed on 23 August 2000 in
circumstances already set out in this
judgment.






Quite clearly, the urgent
chamber application was devoid of merit. Chioza had deliberately
misled the Deputy Sheriff when he knew
the true facts in the matter.
He was under a legal obligation to transfer the farm to Sawyer in
terms of the order issued in case
no. HC 4787/98, and payment to
him of the sum of two million dollars had already been secured by
means of a bank guarantee.
By filing the urgent chamber application
he hoped to block the transfer and thereby delay the inevitable
transfer of the farm.






In
any event, the Deputy Sheriff had no power to withdraw his signature
on the power of attorney and transfer documents. In terms
of the
order issued in case no. HC 4787/98, he was obliged to transfer
the farm to Sawyer as Chioza had refused to do so.
He was not at
liberty to do otherwise. In addition, having signed the documents,
he was
functus officio
and could not undo what he had done in compliance with a court order
by which he was still bound.






In the circumstances, there was
no legal basis for the order sought by Chioza in the urgent chamber
application. As a result,
the application should not have been
granted.






That,
in fact, is the end of the matter. All subsequent applications
based on the default judgment granted in the urgent chamber
application, therefore, fall away. Nevertheless, I shall consider
them and briefly comment on them.





CASE
NO. HC 9558/2000





This
is a court application filed by Sawyer in the High Court seeking a
rescission of the default judgment granted against him when
the
provisional order issued in case no. HC 6582/2000 was confirmed
on 23 August 2000. The circumstances in which Sawyer’s
lawyers did not file affidavits opposing the confirmation of the
provisional order have already been set out in this judgment.





The
basic reason was that when Chioza’s court application in case no.
HC 4111/2000 was dismissed, they did not think that
Chioza would
pursue case no. HC 6582/2000, and had been given that impression
by Chioza’s former lawyer, because the relief
sought in both cases
had the same effect. In fact, they wrote to Chioza’s new lawyers
saying so, and requesting them to consent
to an extension of time
within which to file Sawyer’s affidavit opposing the confirmation
of the provisional order. Chioza’s
lawyers did not reply to that
letter, but instead set the matter down for the confirmation of the
provisional order on 23 August
2000 without notifying Sawyer’s
lawyers.






In the circumstances, Sawyer
gave a reasonable and satisfactory explanation for his default. In
addition, the urgent chamber application
was devoid of merit, as
already indicated. Accordingly, the default judgment was properly
rescinded.





CASE
NO. HC 9559/2000





This
is an urgent chamber application filed in the High Court by Sawyer
seeking a provisional order calling upon Chioza to show
cause why the
cancellation of the transfer of the farm to him (i.e. Sawyer), which
had been ordered in case no. HC 6582/2000,
should not be stayed.
The provisional order sought was granted on 13 September 2000.





This
is one of the matters determined by the learned judge in the court
a quo.
She confirmed the provisional order and interdicted the Registrar
of Deeds from cancelling the Deed of Transfer executed in Sawyer’s
favour, thereby in effect putting to rest case no. HC 6582/2000.






In my view, that decision is
correct. As already indicated, case no. HC 6582/2000 had no
merit and should not have been instituted.





CASE
NO. HC 1413/2002





This
is a civil action instituted in the High Court and in which a summons
was issued on behalf of Chioza on 12 February 2002.
In it
Chioza claimed Sawyer’s eviction from the farm and holding over
damages in the sum of $27 778 per day.





After
entering appearance to defend the action, Sawyer filed a plea in bar,
alleging that the matter was
res
judicata
. The
learned judge in the court
a quo
upheld the plea and dismissed the action. In my view, the learned
judge correctly determined the matter.





There
can be no question that since Sawyer exercised the option to purchase
the farm in accordance with the order issued in case
no. HC 4787/98,
he ceased to be a tenant. That was in July or August 1999.
Thereafter, he became the purchaser of the farm,
despite Chioza’s
repeated attempts to reverse the legal position. Sawyer’s right
to the transfer of the farm was finally settled
by this Court in
Agson Mafuta Chioza v
John Lewis Sawyer supra

on 11 January 2001. The matter is, therefore,
res
judicata
.





CASE
NO. HC 1787/2002





This
is a court application which was filed in the High Court on
22 February 2002 by Sawyer, seeking the rescission of the
default
judgment granted against him on 10 January 2002 in case
no. HC 9558/2000, a chamber application seeking the dismissal of
his court application in case no. HC 9558/2000 for want of
prosecution.







The learned judge found that the
explanation given by Sawyer for his default constituted good and
sufficient cause for the relief
sought. Accordingly, she rescinded
the default judgment.







Sawyer’s explanation for his
default was that when the chamber application was served on his
lawyers, the lawyer handling his case
was on leave, and the lawyer
who was supposed to handle her cases whilst she was on leave did not
do so because he mis-interpreted
the nature of the application. He
thought that it was an urgent chamber application in respect of which
he would later be notified
of the date of hearing by the Registrar of
the High Court. Accordingly, he returned the file to the secretary
of his colleague
who was away on leave. An affidavit from the
lawyer concerned, setting out the reason why the application was not
opposed, was
annexed to Sawyer’s founding affidavit.







Commenting on Sawyer’s
explanation for the default, the learned judge had this to say:





“Having
considered the reason for the non-opposition by the applicant and the
background to the litigation between the parties, it
is my view that
the applicant has shown good and sufficient cause for the rescission
sought. While his legal practitioners were
not as efficient and
well organised as expected of them, the explanation for the
non-action is reasonable, and the history of the
litigation between
the parties reveals that he does have a
bona
fide
defence to the
claims by the first respondent.”






I entirely agree with those
comments. In any event, I am not prepared to say that the learned
judge did not exercise her judicial
discretion properly.
Furthermore, it was conceded by counsel for the appellant that the
decision in this matter was not appealable.





CASE
NO. HC 8261/2000





This
is a court application filed in the High Court by Sawyer on 27 July
2000, seeking an order barring Chioza from instituting
any court
proceedings against him in respect of the farm without the leave of
the court having been granted. It had nothing to
do with the
default judgment granted in case no. HC 6582/2000. The
application was opposed, but the learned judge granted
the order
sought. In my view, that decision is unassailable.





As
this Court stated in
Agson
Mafuta Chioza v John Lewis Sawyer supra

at p 6 of the cyclostyled judgment:





“The
long history of this case indicates that the appellant has gone to
great lengths to unlawfully frustrate the respondent in the
transfer
of the farm. He has told untruths in his affidavits, fabricated
issues, commenced and sustained hopeless suits and generally
acted
unlawfully. This Court’s displeasure at his actions is reflected
in the order of costs awarded.”






Those comments apply to the
present appeal with equal force.






Finally,
before concluding this judgment I would like to state why, just
before the hearing of the appeal, we granted an application
by
counsel for the first respondent for the condonation of the late
filing of his heads of argument. The main reason was that we
accepted counsel’s explanation that he had been briefed late. His
instructing legal practitioner, who filed the written application
for
condonation, averred in his affidavit that he had briefed counsel
late because, prior to briefing him, he had attempted to brief
other
advocates who had declined to accept the brief because of the large
number of files involved. He added that by the time he
approached
counsel it was already late. Accordingly, the application for
condonation was granted.






In the circumstances, the
appeal is dismissed with costs on the legal practitioner and client
scale.















CHEDA JA: I agree.















GWAUNZA JA: I agree.














Manase
& Manase
,
appellant's legal practitioners



Gollop & Blank,
first respondent's legal practitioners