Ashanti Goldfields t/a Freda Rebecca Mine v Bold Pak (Pvt) Ltd & Anor (HH 109 of 2004) [2004] ZWHHC 109 (11 May 2004)

HH 109 - 2004 HC 5261/04 ASHANTI GOLDFIELDS T/A FREDA REBECCA MINE versus BOLD PAK (PRIVATE) LIMITED and THE DEPUTY SHERIFF BINDURA HIGH COURT OF ZIMBABWE HUNGWE J HARARE 7 MAY 2004 AND 12 MAY 2004 Urgent Chamber Application HUNGWE J: Applicant operates a gold mine in Bindura. The 1st respondent is a supplier of mining gear. First respondent issued summons against applicant for the sum of $110 261 630.72 for goods sold and delivered at applicant's instance and request which amount had remained unpaid despite demand. Summons in that case i.e. HC 01/04 was served on its financial controller one Simba Ngirazi at the applicants place of business in Bindura. Applicant did not act on the summons. As a sequel to that respondent obtained judgement by default on 14 April 2004 (UCHENA J) for the capital sum of $110 261 630.72 together with interest at the prescribed rate calculated form the date of summons to date payment as well as with costs of suit. On 29 April 2004 1st respondent caused notice of attachment to be issued, served and executed upon the property belonging to the applicant. As a result applicant's property comprising a mini bus, a Mazda pick-up truck and a Mercedes Benz private motor vehicle were removed by the 2nd respondent, under judicial attachment. By then 1st respondent claimed in the notice of removal, that the capital sum was $222 442 913.66. Applicant then sprung into action. It hastily filed the present application for an interdict, on an urgent basis, preventing 1st respondent from proceeding with a sale in execution of the attached goods until an application for rescission of judgement to be filed by applicant in this court was determined. HH 109 - 2004 HC 5261/04 It sought the following relief couched as follows: "TERMS OF THE FINAL ORDER SOUGHT That the respondents show cause to this honourable court why a final order should not be granted in the following terms:- 1a. That the execution of the judgement granted by this honourable court on the 21st of January 2004 be and is hereby stayed pending the outcome of a court application for rescission of judgement which shall be filed in terms of the clause 2 hereof. b. The respondents shall pay the costs of this suit jointly and severally the one paying the others to be absolved. TERMS OF THE INTERIM RELIEF GRANTED Pending the determination of this matter on the return day, the applicant is hereby granted the following relief:- 2a. b. the execution of the judgement granted by this honourable court on the 21st of January 2004 be and is hereby stayed and the 2nd respondent is ordered to restore to the supplicant all movable property attached and removed into execution on the 29th of April 2004. the application for rescission of the judgement referred to in clause 2(a) above within ten days of the granting of this order following which this order shall lapse and cease to be of any force or effect." It will be noted that the order erroneously refer to the judgement as having been granted by this court on 21 January 2004. The papers reflect that default judgement was entered for 1st respondent on 14 April 2004. Secondly, paragraph 2(b) of the "Terms of Interim Relief granted" speaks of an application for rescission of judgement which does not exist. To make sense this paragraph can only have been intended to state that within ten days of the grant of the order applicant is to file its application for rescission of judgement entered in Case No. HC 01/04 on 14 April 2004, failing which the order lapsed. This application as I understood it, was predicated in the premise that the capital sum claimed could not have doubled between the date of service HH 109 - 2004 HC 5261/04 of summons and the issuance of the writ of execution. The claim was therefore fraudulent. In any event, attachment was illegal as the removal of the goods attached was not preceded by a notice of attachment. Thirdly, applicant say that it was not in willful default and will certainly succeed in its application for rescission which is to be lodged within 10 days of the date of this judgement. It says that the circumstances of the failure to act are that the financial controller who was served with these summons went on sick leave immediately afterwards without drawing senior management's attention to it. It was not therefore in willful default. It points too, to the obvious discrepancy between the sum claimed in the summons and the capital sum for which the writ was issued as another ground upon which its success is guaranteed in that the application. It relies on a reconciliation statement it drew to illustrate the point. The application was vigorously opposed by the first respondent. First respondent pointed to the failure by applicant to file an affidavit by the financial controller, Simba Ngirazi or to state precisely when the said Simba Ngirazi went on sick leave and returned. It doubted whether he is not part of senior management. First respondent disputed the computation of the applicant's reconciliation statement but admitted an error in the capital sum claimed in the notice of removal. It contended that there was no urgency in the matter and prayed for the dismissal of the application. The issue in the present matter is whether an applicant debtor whose property has been attached qualifies by that factor alone, to be given the preference of getting his case dealt with ahead of others, simply because of the attachment. I say this because, had not applicant's property been attached, it could not have acted at the time it did. It would not have resorted to this procedure. The question to ask is whether this matter is so urgent in the sense that it cannot wait in the sense that to wait another day will result in irreparable ham to the applicant. Both parties, counsel addressed me on this point. Clearly applicant's HH 109 - 2004 HC 5261/04 case was predicated on the urgency as created or arisen out of the attachment and removal of its goods. That it has bright prospects of success in the application for rescission is beside the point. In fact that argument, in view of the absence of such an application before this court, could not be pressed too far hereof. This to me shows applicant's attitude. By the time it learnt of the attachment, it had neither attempted to file an appearance to defend nor an application for rescission. Applicant in other words is pursuing this application not the one for rescission as in terms of to the relief sought, that would be filed within ten days of this judgement. What I understand this to mean is that applicant is not worried about an order against it as long as it is not executed. If it is executed applicant resorts to this procedure. Otherwise how does it explains the failure to disclose the date when it became aware of the summons after Simba Ngirazi went on leave. In order to get the grant of an interdict on an urgent basis, the applicant has to satisfy the court that the prejudice that the applicant will or is likely to suffer by having to wait for a hearing in the ordinary course far outweighs the prejudice that other litigants might suffer if the applicant is given preference over them, and the prejudice the respondents might suffer by an abridgement of the prescribed times and an early hearing. I am satisfied in this case that applicant relies on self created urgency in order to get the relief it seeks. That, without more cannot be allowed. Urgency which will qualify a case being given preference over others in terms of set down is that cannot wait. No prejudice is suffered by applicant should this case be ordered to proceed in the normal way. No such prejudice was claimed. There is no application for rescission filed. Had this been the case, one would have pointed it as an indication of the seriousness with which it regards and arranges its affairs. Further, although the respondent has not relied on this point applicant has not demonstrated its good faith by paying that which it admits is owed to HH 109 - 2004 HC 5261/04 first respondent. An offer of payment into court would have demonstrated its bona fides in challenging the capital sum as claimed in the summons. In the premises I am not persuaded that this matter qualifies to be treated on an urgent basis. The application to treat the matter on an urgent basis is declined. It is referred to registry to be dealt with in terms of the rules. There will be no order as to costs. Magwaliba, Matutu & Kwiriria, applicant's legal practitioners Mtombeni Mukwesha & Associates, respondent's legal practitioners