Judge berated for 'incompetent order'

IN an unprecedented move, Supreme Court judges have berated High Court Justice Tawanda Chitapi (pictured) for alleged incompetence and passing an irregular default judgement in a long-standing land ownership dispute involving Bariadie Investments (Private) Limited and a Harare lawyer.

Deputy Chief Justice Elizabeth Gwaunza, in a 16 February 2022 ruling with Justices Antonia Guvava and Chinembiri Bhunu on the matter between Bariadie Investments (Private) Limited and Puwayi Chiutsi (first respondent), Tendai Mashamhanda (second respondent), the Registrar of Deeds (third respondent), the Sheriff of the High Court (fourth respondent) and Elliot Rodgers (fifth respondent), castigated Chitapi and effectively set aside his December 2019 default order that was granted "without anyone seeking it."

Bariadie Investments (Private) Limited appealed to the Supreme Court against Chitapi's September 2021 judgement that dismissed with costs an application to have a deed of transfer for the Mt Pleasant property which was purchased by Mashamhanda cancelled.

Mathonsi had dismissed Chiutsi's applications for the order to set aside the confirmation of the sale of the house in pursuance of a court judgement granted on 4 November 2014 in favour of Rodgers following a wrangle over US$70 000 trust money.

Chiutsi had also sought an application for declaratur brought by Rodgers against the Sheriff (as the first respondent) while Rodgers, Registrar of Deeds and Bariadie Investments (Pvt) Ltd were the second, third and fourth respondents respectively.  

All the applications were dismissed by Justice Mathonsi.

The company in 2017 bought the Mt Pleasant property following a High Court ruling by Justice Mathonsi, but the previous owner, Chiutsi, allegedly fraudulently resold the property.

However, the Supreme Court cancelled Justice Chitapi's order, but not before blasting him over several irregularities.

"This is because the matter before Mathonsi was a consolidation of two applications, 0one by the first respondent and the other by the fifth respondent in casu. The latter application sought a declaratur to the effect that once the Sheriff has issued a determination in terms of the High Court rules, he was obliged to pass transfer in terms of rule 361. Mathonsi specifically dismissed both applications," Gwaunza's ruling read in part.

"Chitapi's default order in HH477/21, by wholesomely and quite improperly setting aside the judgement of Mathonsi, also set aside his order in the application filed by the fifth respondent. In the main application before Chitapi, the first respondent could not have sought the setting aside of an order that, in its effect, was actually in his favour."

Deputy Chief Justice Gwaunza said Justice Chitapi ended up with his "default order" after the counsel did not show up on the day of the ruling.

"Thus the first respondent, who was a respondent in the application for leave to appeal, ended up with a judgement in his favour in the application he filed in terms of rule 449 without the matter being heard and determined on merits," she said.

On other "patent but minor irregularities" in Chitapi's order, Gwaunza said, the judgement in question added to the concern by the Supreme Court.

"Apart from citing the parties as cited in the main application, the following anomalous notation is evident on the first page of the judgement. The anomaly in question arises from the fact that all three counsel cited (Thembinkosi Magwaliba for the applicant, T Mapuranga, for the 2nd respondent, D Kwenda for the 3rd respondent) were not present at the hearing of the application, a circumstance that the learned Judge himself mentioned and roundly condemned insofar as it is related to counsel for the second and third respondents in that matter.

"What caused serious concern, however, was the manner the proceedings before Chitapi were then conducted. Firstly, the judge noted in his judgement that Advocate  Magwaliba, counsel for the applicant, (respondent in casu) had requested that the matter be stood down because he was otherwise engaged with a case before the Supreme Court.

"This information was conveyed to the court by the first respondent. While noting this fact, the judge did not indicate what his reaction to the request was. Instead, he mentioned that following the established default judgement of the two other counsels in the matter, the ‘applicant' before him, that is the first respondent in casu, applied for judgement in default of appearance of the second and third respondents.

"In the absence of his legal representation, there is no indication that his counsel of choice had renounced agency. Quite to the contrary, since the latter had requested for the standing down of the matter until he was able to present himself. It is a matter of procedure that legally represented litigant does not casually address and seek relief from the court unless and until his or her legal practitioners have renounced agency," Gwaunza said.

"Seemingly disregarding these considerations, the judge a quo proceeded to strongly berate counsel for the appellant and the fifth respondent for so disrespecting the court as to be in default of appearance on a date that all parties had agreed to. Of the request from the first respondent's counsel to stand the matter down, nothing was said. The judge instead saw nothing irregular in allowing a hitherto represented litigant to address a court as a self-actor and apply for default judgement against appellant and the fifth respondent. The fact that the litigant in question was a senior legal practitioner who clearly sought to use his knowledge of court procedures to snatch a judgement did not deter the court," the judgement further stated.

"It is further not clear from the judgement whether or not the default judgement sought by the first respondent related to the main or the interlocutory application.

"In any case, the first respondent in the interlocutory application could only have sought the dismissal or striking off, of that application. For their part, the two counsel representing the applicant and the fifth respondent in casu could only have been in default in relation to the interlocutory application for leave to appeal that, with their consent, had been set down for hearing on the day in question. However, the order that was then granted leaves no doubt that the court a quo took the legally incompetent view that the circumstances that had called for the default order effectively striking down the respondent's defense in the main application and granting the relief sought by the applicant therein."

Gwaunza lashed Chitapi again, saying: "It is astonishing and, in the court's view, patently irregular that the judge a quo disregarded the reality of what was property before the court on the date in question, that is the application for leave to appeal, and proceeded to determine the substantive issue between the parties.

The judge's extreme disapproval of the perceived conduct of the senior counsel representing the appellant and fifth respondent in casu for failing to appear on the date of hearing could not be an excuse for flouting the law both in substance and in terms of procedure. For quite clearly, the court a quo ruled on a matter that was not yet before it."

Gwaunza said apart from citing on the first page of the default judgement the parties as they were cited in the main application, evidently, the court a quo conflated the two applications in other respects.

"The learned judge seems to have taken the view that the default by the counsel concerned, in respect of the interlocutory application, also constituted default by them in relation to the main application which  in the judge's words was ‘vehemently opposed' by respondents therein. After clearly stating that what was to be determined in the main application was the veracity of the applicant's averment as to whether Mathonsi's judgement was granted in error and whether there was merit in the application, the judge then stated as follows…'the application has however, ended up determined on the basis of default judgement because of how the parties and particularly counsel for the second and fifth respondent conducted themselves'."

"The conduct of the second and third respondents referred to, was their failure to attend court for hearing of the application for leave to appeal set down for July 20, 2021. It was not, as the Judge suggests, for the hearing of the main application."

"Another indication of improper conflation of the two applications is the default order granted by the court on the basis that the counsel concerned were in ‘willful default' and therefore that the default judgement was deserved. The court reached backwards to the relief sought by the first respondent in the main application and granted it without amendment. The legal fate of the application for leave to appeal to the Supreme Court remains in limbo. The court was enjoined to, but did not make a determination one way or the other in the face of the default by those who were domini litis in the interlocutory application before it.

"One may note in this respect that even where all parties to a matter properly set down absent themselves from the hearing, the court would still be required to make an application order. In the circumstances of this case, it is that type of order which would have defined the process to be followed in the eventual setting down of the main application properly and on notice to all concerned parties. Leaving undetermined matters that are on the court roll would clearly not be in the interests of efficient case management nor finality in litigation."

"As it is, the respondents in the main application who presumably filed full pleadings in that respect and were looking to argue the matter on the merits whether or not their application for leave to appeal against some points in limine was granted, woke up to a situation where judgement had been granted against them in the substantive dispute between the parties.

"A compounding factor in the dubious procedure adopted by the Judge a quo is the fact that the default order in question was granted on the basis of what could only have been a further futile attempt by the first respondent to frustrate execution against his property. It doesn't escape notice that the ‘mistake' allegedly related to the non-consideration by Mathonsi of certain evidence that only came to light after the hearing of the matter to which the judgement related."

 "Literally, with the stroke of a pen, the court a quo set aside the judgement of equal jurisdiction through the agency, a default judgement granted in a matter not before it."

"Equally damning is the fact that in setting aside Mathonsi's judgement, the court a quo did not differentiate between the order pertaining to the first respondent's case and that pertaining to the fifth respondent's case.

"The latter order could only have been properly overturned at the instance of the losing party, therein, that is the fifth respondent. The Judge therefore granted a default order that had not been sought by anyone."

"The irregularity of such action needs no emphasis. It is worth mentioning in this respect that a judge is required to address his or her mind to every order that he or she makes, even in circumstances where such order is granted in default of appearance by a party to the proceedings."

The Supreme Court then vacated Chitapi's order, saying: "Accordingly, both proceedings in the matter and the resultant default order granted by the court in HH 477/21 stand to be vacated."

According to the disposition, Chiutsi fraudulently sold property that had already been sold to the appellant through a confirmed Sheriff's sale by public auction and proceeded to perjure himself and thereby facilitated transfer of the property into the second respondent's name.

"The confirmation by the Sheriff of the sale by auction remains extant despite the incompetent default order granted in HH477/21.

"The default judgement by Chitapi has failed to withstand review scrutiny as outlined and must be set aside. Consequently, Mathonsi's judgement HH604/18 remains extant."

The Supreme Court ordered that deed of transfer, number 708/19, issued by the third respondent in favour of second respondent, to be cancelled.

"The deeds under which land in question or any real right therefore was held prior to the registration of the cancelled deed of transfer be and are hereby revived," the Supreme Court ordered.

The Supreme Court also ordered that the land in question be transferred into the applicant's name.

In overturning the Chitapi ruling, Gwaunza expressed disquiet.

"The matter, however, does not end there. This is because of a worrying development in that dispute that was brought to the court's attention on the very day this appeal was heard," the Supreme Court ruling read out by Gwaunza read in part.

"Counsel for the first respondent (Chiutsi) produced a judgement (HH 477/21) granted in default by Chitapi J, the same judge whose judgement is the subject of this appeal. The judgement was handed down a day before the hearing of this appeal. Counsel for both the appellant and the fifth respondent expressed some disquiet at this turn of events and expressed the view, shared by the court, that the default judgement in question should not deter hearing of the appeal before the court," the judgement further read.

"The dispositive part of the judgement in question purported to set aside the judgement of Mathonsi J which endorsed the confirmation of the sale of the contested property by the Sheriff, to the appellant. In light of the pignus judiciale  created by the attachment of the property in question, which attachment (and subsequent sale of the property) remained extant, the setting aside of Mathonsi's judgement per se would not, in any case, have validated the sale and transfer of the disputed property by the first respondent to the second respondent."

According to the court papers, the matter began sometime in 2012 when Rogers, the fifth respondent in the matter, obtained judgement under HC 3331/14 against Chiutsi, who is first respondent, after the latter had failed to pay the balance of US$116 000 after he sold, on instruction, Rogers' piece of land in Mt Pleasant.

Consequently, the court ordered the sale in the execution of Chiutsi's property known as the remainder of subdivision C of Lot 6 of Lots 190, 191, 192, 193, 194 and 195 Highlands Estate of Welmoed.

It emerged that in 2017, Bariadie Investments (Private) Limited participated in the Sherriff's sale by public auction of Chiutsi's property and was declared the highest bidder after offering to pay US$270 000.

However, Chiutsi later lodged objection to the confirmation of the sale by the Sheriff of the High Court but his objection was dismissed.

Chiutsi however, appealed Justice Mathonsi's judgement but was dismissed on the basis that his conduct before the courts was dishonourable and also in view of his "unworthy manner by misappropriating trust funds" and that "he had employed every trick in the book to avoid paying his debt" to Rogers.

Undaunted, Chiutsi appealed the judgement and also tried without success to file an urgent chamber application for an interdict against the transfer of the property pending the outcome of the appeal that he had filed.

According to Gwaunza, Chitapi erred in treating previous judgements, in particular that of Mathonsi, as though they were irrelevant to the just determination of the dispute before it.

"There is merit in this submission. Mathonsi's judgement was clear on the point that the first respondent could not dispose of the property whose sale the court had confirmed," Gwaunza's judgement read in part.

"Mathonsi's order was extant at the time that the first respondent, in blatant violation thereof, sold the property to the second respondent. As a senior legal practitioner, he could not have failed to appreciate the fact that anything done in violation of an extant order of the court is, by that token, invalid at law."

"That first respondent fully appreciated the fact that he could not validly sell the property in the face of Mathonsi's order demonstrated by his spirited efforts through the two applications filed with this court, to secure an interdict against transfer of the property to the appellant. With one High Court and two Supreme Court orders endorsing the injunction against him to dispose of the property in question, it is mind boggling that the first respondent, a lawyer of many years' standing, proceeded to act in such open defiance of the law and judicial process. The appellant and the fifth respondent cannot be faulted for describing such conduct as being fraudulent and contemptuous."

"The court a quo accordingly erred in treating the previous judgements of the High Court and this court, whose effects was to bar the first respondent from selling the property to the second respondent, as having no effect on the case that was before it. The contrary was clearly the case."