Katsimberis and Another v Sharpe and 5 Others (842 of 2022) [2022] ZWHHC 842 (16 November 2022)

1 HH842/22 HC4544/20 GEORGE KATSIMBERIS and COOLFITCH INVESTMENTS (PVT) LTD versus KENNETH RAYDON SHARPE and KENNETH RAYDON SHARPE N. O. in his capacity as trustee of: THE KILIMANJARO TRUST THE PORCUPINE TRUST THE HAMSTER TRUST and CASTLETHORPE INVESTMENTS (PVT) LTD and POKUGARA ECOFRIENDLY ESTATE (PVT) LTD and POKUGARA PROPERTIES (PVT) LTD and THE REGISTRAR OF DEEDS HIGH COURT OF ZIMBABWE MANZUNZU J HARARE, 8 July & 16 November 2022 COURT APPLICATION Adv E Mubaiwa, for the applicants Adv T Zhuwarara, for the 1st to 5th respondents INTRODUCTION: MANZUNZU J: This matter is decided on the papers without the benefit of oral submissions as agreed to by counsels. This is an opposed application for an interdict in which the applicant seeks an order in the following terms; “IT IS ORDERED AND DECLARED THAT: 1. The 1st and 5th respondents and all those claiming through the same, be and are hereby interdicted from selling any stand or land or subdivision of a certain piece of land situate in the district of Salisbury measuring 20,8438 hectares called stand 19828 Harare Township of Salisbury Township Lands, held by the 5th defendant (sic) under HH842/22 HC4544/20 Deed of Transfer No. 4762/2012 until such time as case No. 3810/2020 has been disposed of by the High Court or Supreme Court of Zimbabwe. 2. That the 1st and 5th respondents jointly and severally each paying the other to be absolved pay cost of suit on a scale calculated as between attorney and client.” FACTS George Katsimberis and Kenneth Raydon Sharpe have been at each other’s throat for a while. They have become regular customers of the courts. Their dispute is born out of the same set of facts which were aptly summarized by Mafusire J in Katsimberis and Another v Sharpe and Others HH 771/20 as follows: “In June 2016 Katsimberis and Sharpe associated themselves together in business for mutual benefit. They put up a document. They called it a Joint Venture Agreement [“the JVA”]. In terms of it, they would float a company as a vehicle to realise their dream. That dream was to develop pieces of land into housing units and apartments for renting out for profit. The contributions of each of the parties to the JVA were spelt out. In a nutshell Sharpe would, through a nominee company, provide the land. Katsimberis, also through a nominee company, would inject the cash or its equivalent. [5] Regrettably, the association soon collapsed. The dream became a legal nightmare. Sharpe maintains the JVA was, and is a complete nullity. Katsimberis maintains it was, and still is valid, only requiring little rectification. Sharpe cancelled, or purported to cancel the JVA in January 2018. He maintained, and still does, that the proxy companies nominated and chosen by each one of them as the actual parties to the JVA were non-existent. He says they had not been incorporated. For him, the nominee company that he put forward was called Pokugara Estate (Private) Limited (“Pokugara Estate”). For Katsimberis, it was G K Properties (Private) Limited, or any other nominee company represented by him. [6] Katsimberis maintains that the fact that those nominee companies had not yet been floated at the time of the JVA, in June 2016, or of the purported cancellation, in January 2018, did not void the JVA. He maintains he performed, and would still perform, his side of the bargain in terms of the JVA. Sharpe did not agree. It is said Sharpe offered to put Katsimberis back to the position he would have been in but for the JVA. However, his offer would be subject to certain considerations and adjustments given that, among other things, Katsimberis’ alleged performance, in putting up certain structures on a certain portion of the joint venture land, was defective. Those structures would have to be demolished. Sharpe said the City of Harare HH842/22 HC4544/20 had condemned them on account of the fact they that had been put up without approval. They were eventually destroyed, but not without a fight. [7] There was an impasse. Litigation was inevitable. Katsimberis filed an urgent chamber application. It was for an interdict against Sharpe; Pokugara Properties; City of Harare; and several other respondents, to restrain them from demolishing the condemned structures. He also sought, in that same application, an interdict to restrain the selling, disposal, alienation or transfer of certain subdivisions of the property. Those interdicts were sought pending the finalisation of the proceedings the applicants intended to institute within a period of 10 days, either by way of arbitration, or through an action to this court, to resolve those disputes that had erupted in terms of the JVA. [8] The urgent chamber application was filed in October 2018. It was under the case reference No HC 8943/18. It did not go far. It did not go beyond preliminary objections. It was struck off the roll, per MUZENDA J. There were three preliminary points raised successfully by the respondents, namely: ➢ that the application was defective for want of form in that it was accompanied by neither Form 29 nor Form 29B as directed by r 241(1) of the High Court Rules, 1971; ➢ that the matter was not urgent in the sense that the applicants had refrained from taking action when the need to do so had arisen on several occasions, and ➢ that the relief sought was the same, or had the same effect as the final relief sought, with the result that the applicants were seeking final relief designed as interim relief which, unlike final relief, is granted just upon prima facie proof, as opposed to proof on a balance of probabilities. [9] Katsimberis appealed to the Supreme Court. The appeal was dismissed in March 2019. There was no further legal development until July 2020. Under HC 3810/20, Katsimberis issued a summons against several defendants, including Sharpe and the current third respondent, Pokugara Properties (Private) Limited (“Pokugara Properties”). He sought several remedies. Pokugara Properties is at all times the company under which the disputed property has always been registered. But the name put forward by Sharpe as the one party to the JVA was Pokugara Estate, not Pokugara Properties. So, the one remedy sought by HH842/22 HC4544/20 Katsimberis in HC 3810/20 was a declaration that despite the JVA referring to Pokugara Estate, the true party was in fact Pokugara Properties. The other remedy sought in that application was specific performance against Pokugara Properties. There was also ancillary relief sought, or in the alternative, damages for breach. The action was defended. It is still pending. [10] Katsimberis filed the next set of proceedings in August 2020 under the case reference No HC 4544/20. He sought an interim interdict against, among others, Sharpe and his companies, including Pokugara Properties. The interim interdict was to restrain the sale of the disputed property, or any subdivision of it, pending the disposal of HC 3810/20. The application was opposed. It is also still pending. [11] In the present application, under interim relief, Katsimberis seeks an interdict barring the transfer of the disputed property, or a subdivision of it, to anyone, including Chindove. On the return day, Katsimberis seeks as final relief, an interdict barring the respondents from selling any stands or stand on a subdivision of the disputed property pending the determination of the interdict application under HC 4544/2020 above.” ISSUE ESTOPPEL The respondents have raised a defence of res judicata in that when the applicants brought an urgent application under HC 8943/18 which was struck off the roll-on 12 October 2018, they failed to rectify the attendant defects within 30 days and hence the matter was deemed abandoned. The respondents have also raised other preliminary points which are not intended to be dealt with for now. I allowed counsels to file supplementary heads to deal with the effect of Mafusire J’s judgment in Katsimberis & Anor v Sharpe & Others HH 771/20 on the current proceedings. It must be pointed out that this is a third matter in which the applicants seek an interdict against the respondents barring them from selling certain stands of the property in dispute. In the applications HC 8943/18 (before Muzenda J) and HC 6202/20 (before Mafusire J) the applicants failed to get the relief sought. Both applications were filed on urgency but were struck off the roll. In HH 771/20 the court had this to say about the cause of action by the applicants; HH842/22 HC4544/20 “[17] I agree with the respondents. Before MUZENDA J in October 2018 Katsimberis wanted an interdict to bar the demolition of the structures that he had erected on a portion of the disputed property. But he also wanted an interdict to bar the selling, disposal, alienation or transfer of the property, or any portion of it.” While the court admitted in its judgment that the merits of the case before Muzenda J were not determined it went further to say; “[18] However in the present case, I believe res judicata is available to the respondents as a ground of objection in the form of issue estoppel. Issue estoppel is a species of res judicata. It applies where an issue that was a necessary ingredient in a previous cause of action decided upon is presented to the court again. Before MUZENDA J, whether Katsimberis had, among other things, the right to stop Sharpe or his proxy companies from selling or disposing of, transferring or alienating the disputed property, or subdivisions of it, was a necessary ingredient in his cause of action. The court said it could not relate to that cause of action because it was not properly before it. It was struck off the roll. That means that without taking any such further steps as are permitted by our rules of court or rules of practice to regularise the irregularities, Katsimberis cannot just bring back the same cause to the same court that refused to relate to it before. It is issue estoppel. The court had in fact, effectively decreed that it would not sit in judgment over that particular issue…” The court went further to explain the effect of a matter being struck off the roll thus, “[20] Katsimberis had 30 days within which to rectify any such of the defects as might have disqualified his case from being heard on the merits. He did not. Instead, he appealed. But the appeal failed… The fact is that he did nothing further after the dismissal. So, he was deemed by law to have abandoned his cause: see Bindura Municipality v Mugogo SC 32-15. He cannot bring the same cause again now… [21 By the decision of MUZENDA J aforesaid, this court decreed that given what had transpired since January 2018 when Sharpe cancelled the JVA, and certain of the events subsequent thereto, it was no longer possible for Katsimberis to question the right by Sharpe and his companies to sell, alienate, dispose of or transfer the property or the subdivisions because of the time lapse. Therefore, the aspect of the inordinate delay for which Katsimberis was penalised is issue estoppel… The point is: back in 2018 the court had already made a decision in relation to the subject of the dispute, i.e. the disputed land… HH842/22 HC4544/20 [22] Therefore, I uphold the respondents’ points in limine that the matter…. is issue estoppel.” (emphasis is mine). It is clear from the above pronouncements in the judgment that the court made certain findings. Such findings unless upset by the Supreme court are issue estoppel. The applicant has argued this matter as if it were appeal proceedings. A lot was said about how the court erred in that judgment. I will not bother to go into the details of such argument. This is simply because the court cannot sit as an appeal or review court over its own judgment. I uphold the respondents’ point in limine that this matter is issue estoppel. The position stands even if there are some respondents who did not oppose the application as alleged by the applicants. DISPOSITION 1. The application be and is hereby dismissed with costs. Tendai Biti Law, Applicant’s Legal Practitioners Scanlen and Holderness, 1st -5th Respondents’ Legal Practitioners