Apostolic Faith Mission in Zimbabwe v Chinyemba and 6 Others (103 of 2024) [2024] ZWHHC 103 (13 March 2024)

Key Facts

Issues

• Whether material factual disputes exist that cannot be resolved on the papers, particularly regarding the applicant's ownership claims, the respondents' use of the property, and the legal status of the Hillside Unlimited Grace Assembly.
• Addressing the respondents' defense of non-joinder of the Hillside Unlimited Grace Assembly and City of Harare as necessary parties to the litigation.
• Determining the ownership of Stand 19839 Harare Township and two motor vehicles (Toyota Hilux and Toyota Coaster) between the applicant Apostolic Faith Mission in Zimbabwe and the respondents, including the Hillside Unlimited Grace Assembly.
• Assessing the applicant's legal standing and authority to represent the Apostolic Faith Mission in Zimbabwe, including challenges to its constitution and the deponent's representation rights.

Holdings

• The applicant must file and serve its declaration within 10 days of the order. This ensures procedural compliance and provides clarity on the applicant's legal position before trial.
• The application is referred for determination under the trial procedure. The court found material disputes of fact that cannot be resolved without oral evidence, necessitating a trial to address ownership of the property and vehicles, and to clarify the legal status of the applicant and respondents.
• The founding affidavit shall stand as the summons, and the opposing papers as the appearance to defend. This streamlines the procedural transition to trial by adopting existing pleadings as formal court documents.
• Costs of the application and aborted hearing are to be costs in the cause, to be determined at the end of the trial. The court reserved discretion to allocate costs fairly once the matter is fully resolved.
• Further proceedings shall follow court rules. The court emphasized adherence to procedural regulations to ensure a fair and structured trial process.

Remedies

• 1st-7th respondents ordered to return Toyota Hilux (ACI 8670) and Toyota Coaster (ACJ 5356) to the applicant within 24 hours.
• 1st-7th respondents ordered to pay the costs of the application, jointly and severally, on the attorney-client scale.
• Respondents ordered to pay $609,927.62 in outstanding rates to the City of Harare and any cumulative arrears upon departure.
• The costs of this application and the aborted hearing are to be costs in the cause, determined at the end of proceedings.
• Sheriff of Zimbabwe or Zimbabwe Republic Police authorized to enforce the order if respondents fail to comply with paragraphs 1 and 2.
• All further proceedings and processes shall be regulated by and follow the court rules.
• The applicant must file and serve its declaration within 10 days of the date of this order.
• 1st – 7th respondents and all those acting through them are interdicted from entering, accessing, or taking possession of the applicant's property at Stand 19839 Harare Township.
• The founding affidavit shall stand as the summons, and opposing papers as the appearance to defend.
• The application is referred for determination under the trial procedure as material disputes of fact cannot be resolved without viva voce evidence.

Legal Principles

• The court applied the principle that material disputes of fact cannot be resolved without viva voce evidence, leading to the referral of the application for trial. This is based on the definition from Sup Plant Investments Ltd v Chidavaenzi (2009) and the discretion under Rule 59(26)(b) to refer matters to trial.
• The court applied Rule 32(11) of the High Court Rules 2021, which states that misjoinder or non-joinder of parties does not defeat a case, and instead allows the court to determine issues affecting the parties' rights. The respondents were advised to apply for joinder rather than object to the case.
• The court emphasized the necessity of proper legal documentation (e.g., constitutions, specific resolutions) to establish the legal standing and authority of parties to litigate, citing cases like Madzivire v Zvarivadza and Beach Consultancy v Makanya.

Precedent Name

• Apostolic Faith Mission in Zimbabwe v Apostolic Faith Mission of Zimbabwe & Ors
• Cossam Chiangwa & Ors v Apostolic Faith Mission in Zimbabwe & Ors
• Madzivire & Ors v Zvarivadza & Ors

Cited Statute

Judge Name

Passage Text

• "A material dispute of facts arises when material facts alleged by the applicant are and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of evidence"
• "Resultantly I make the following orders: 1. The application is referred for determination under the trial procedure... 5. The costs of this application and the aborted hearing shall be costs in the cause."
• "Having found that there are material disputes of fact which I cannot resolve without viva voce evidence the application stands to be dismissed or referred for trial... I considered dismissing the application but was of the view that to do so would result in an injustice..."