Christian Aflame Ministries v Pentecostal Fellowship of Zibabwe and Another (295 of 2024) [2024] ZWHHC 295 (9 July 2024)

1 HH 295-24 HC 7948/23 CHRISTIAN AFLAME MINISTRIES versus PENTECOSTAL FELLOWSHIP OF ZIMBABWE and CITY OF HARARE HIGH COURT OF ZIMBABWE MHURI & MAMBARA JJ HARARE, 5 & 9 July 2024 Application for a Joinder Mr T Gombiro with Ms P Tavirai, for the applicant Mr J Marange, for the 1st respondent No appearance for the 2nd respondent MAMBARA J: This is an application for a joinder in terms of Rule 32(12)(b) of the High Court Rule, SI 202/2021. The applicant intends the City of Harare to be joined to the proceedings in case number HC 6412/22. Rule 32(12)(b) upon which this application is grounded provides as follows: “At any stage of the proceedings in any case or matter the court may on such terms as it thinks just and either on its own initiative or on application- (a) …… (b) Order any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, to be added as a party.” The applicant, Christian Aflame Ministries, entered into a lease agreement with the second respondent, City of Harare, on 1 December 2009 for Stand 645 Musasa Avenue, Marimba Park, Harare, for a period of 30 years, set to expire on 30th November 2039. Relying on this lease, the applicant occupied the land and erected a church. The second respondent assured the applicant that it owned the land, which led the applicant to proceed with its plans. The first respondent, Pentecostal Fellowship of Zimbabwe, later claimed ownership of Stand 645 and issued summons for eviction under case number HCH 5650/22. In response, the applicant sought to join the second respondent to these proceedings (case number HCH 6412/22), but this application was dismissed. The first respondent then filed for holding HH 295-24 HC 7948/23 over damages under case number HCH 1683/23 and again the applicant sought to join the second respondent, which the first respondent opposed. Issues for Determination 1. Whether the second respondent has a legal and direct interest in the matter. 2. Whether the first respondent suffers any prejudice if the second respondent is joined. 3. Whether it is in the interests of justice to join the second respondent. At the commencement of the hearing the first respondent who had raised the issue of res judicata as a preliminary point abandoned it. As stated above, for a joinder application, r 32 (12)(b) of the High Court Rules, 2021 requires that a party be joined if their presence is necessary for the effective and complete determination of the matter. The party seeking joinder must demonstrate a direct and substantial interest in the proceedings (MBCA Bank Limited v The Reserve Bank of Zimbabwe & Anor HH 482/15; Maxwell Matsvimbo Sibanda v Gwynne Ann Stevenson & 7 Ors HH 474/18). A critical examination of whether the second respondent has a legal and direct interest in the matter is required. The legal test for joinder demands that the party to be joined must have a direct and substantial interest in the proceedings. This interest must be more than a mere financial interest; it must be a legal interest that could be affected by the court's decision (Matsvimbo v Stevenson & Ors S–123-20; Zimbabwe Alloys Limited and Zimbabwe Alloys Chrome (Private) Limited v Balasore Alloys Limited & Ors HH 597/19. For reasons unknown, second respondent did not file any papers in response to this application for its joinder. It is noted however in its opposition to the earlier application it indicated that it had no direct or substantial interest in the matter. The second respondent’s interest would be primarily financial, stemming from the receipt of rentals from the applicant. This financial interest does not constitute a direct and substantial legal interest in the subject matter of the holding over damages claim. The legal and substantial interest required for joinder pertains to legal rights that might be prejudiced by the court’s decision. The second respondent’s interest would not meet this threshold. During the course of the hearing the applicant raised new issues that had not been pleaded in the founding affidavit. The issues related to the description of the property that was leased to it by the second respondent against the description of the property that is reflected in the Certificate of Registered Title that is in favour of the first respondent. Reference was also made to the sizes of the properties and that, perhaps, parties were fighting HH 295-24 HC 7948/23 over two completely different pieces of land and that there was thus need to join the second respondent to the present proceedings. It was further argued that the court should also consider the fact that hire comes before a sale. In Milrite Farming (Private) Limited v Porusingazi & Ors, HH 82/2010 HLATSHWAYO J (as he then was) stated as follows: “The basic rule pertaining to application procedures is that the applicant‘s case stands or falls on averments made in the founding affidavit and not upon subsequent pleadings. The rational for the rule is quite clear. It is to avoid the undesirable effect of litigation assuming a snowballing character, with fresh allegations being made at every turn of pleadings. Thus, the fresh allegation contained in the answering affidavit must be ignored, leaving the same cause of action and substantially the same facts in both the first and second applications.” In view of the above principle we were left with no choice but to decline to consider the fresh issues raised by the applicant in its oral submissions. The applicant is required to make its case in the founding affidavit and not in the replying affidavit or through oral evidence during the hearing. The rule is based on the procedural requirements of the motion proceedings which requires that the applicant should set out the cause of action in both the notice of motion and the supporting affidavit. The first respondent has argued that the application for joinder is unmeritorious and would be prejudicial. Raising new issues at this stage would complicate and potentially delay the proceedings. The legal principle that joinder should not cause embarrassment or prejudice to the existing parties is well-established (Takafuma v Takafuma 1994 (2) ZLR 103). In this case, the first respondent’s opposition to the joinder is grounded in the assertion that the second respondent has no substantial legal interest in the matter and that its inclusion would not contribute to resolving the primary issue of holding over damages. Thus, joining the second respondent would likely cause unnecessary complication and prejudice to the first respondent without offering any significant benefit to the resolution of the case. As provided in High Court Rule 32(12)(b) above, the interests of justice require that all relevant parties be present in a matter to ensure a fair and comprehensive adjudication. However, this does not extend to parties who do not possess a direct and substantial legal interest in the matter at hand. The inclusion of the second respondent in the current proceedings is unnecessary for resolving the primary issue of holding over damages. The second respondent does not have a legal interest that would be affected by the outcome of these proceedings. The Applicant argues that the second respondent’s inclusion is necessary to clarify ownership and rights over Stand 645. However, the primary dispute in the current HH 295-24 HC 7948/23 case is about holding over damages, which can be adjudicated without the second respondent’s involvement. The court’s decision on holding over damages pertains to the applicant’s continued occupation of the land and any related financial claims, which do not require the second respondent’s participation. In light of the above analysis and the legal principles established in the cited authorities, the court finds that the second respondent, City of Harare, does not have a direct and substantial legal interest in the matter. The application for joinder is therefore ill- conceived and is to be dismissed. It must be noted that this is a second application for a joinder that is being brought by the applicant in the same matter involving the same parties and the same subject matter. The applicant cannot repeatedly seek the joinder of the second respondent on similar grounds after a prior application was dismissed by the same court in HC 5650/22 as this constitutes an abuse of court process. In any case, in the previous application the second respondent had clearly indicated that it had no interest in the matter and there is no reason to assume that it could now have interest in the present matter. The court’s decision on holding over damages can be made without involving the second respondent, and the exclusion of the second respondent will not result in a miscarriage of justice. The primary dispute concerns the financial claims related to the applicant’s continued occupation of the land, which does not require the second respondent’s participation. In the result, it is ordered that: The application for the joinder of the second respondent to case number HCH 1683/23 is dismissed with costs. Chimwamurombe Legal Practice, applicant’s legal practitioners Mberi Tagwireyi & Associates, respondents’ legal practitioners