Kamangira v Chitungwiza Municapality (HC 5351 of 2013; HH 739 of 2015) [2015] ZWHHC 739 (23 September 2015)

1 HH 739-15 HC 5351/13 KINGDOM KAMANGIRA versus CHITUNGWIZA MUNICIPALITY HIGH COURT OF ZIMBABWE MATHONSI J HARARE, 15 September 2015 and 23 September 2015 Opposed Application Applicant in default Ms S Nyagura, for the respondent MATHONSI J: Kingdom Kamangira desires to benefit from his own breach of a contract entered into with the Municipality of Chitungwiza in July 2006 involving the development of a vacant stand being number 17036 Zengeza Township. He was required by clause 5 of the written agreement to commence the erection of buildings on the stand within 9 months of the date of commencement of what was termed a lease agreement. He did not even commence any development content only to submit a development plan to the local authority and then do nothing thereafter. In terms of clause 5 of that agreement, in the event of his failure to commence or complete the erection of the buildings, the Municipality was entitled “forthwith to declare this agreement terminated and to take possession of the stand.” Clause 21 provides: “That the lessee’s domicilium citandi et executandi is stand 17036 and that of the lessor is Stand 6004 Chitungwiza Municipality.” It is common cause as I have stated that the stand was vacant and one assumes that its choice as domicilium citandi was in anticipation of the applicant moving in to develop it as evinced by clause 5 of the agreement. The applicant does not appear to have provided any other address for service. By letter dated 3 August 2011 addressed to the applicant at his address for service the respondent repossessed the stand as follows: “Kingdom Kamangira 17036 Zengeza 4 CHITUNWGIZA HH 739-15 HC 5351/13 Dear Sir RE: CQANCELLATION OF LEASE: STAND NUMBER 17036 ZENGEZA 4 DUE TO NON-DEVELOPMENT AND NON-PAYMENT OF US$ 432-98 The above matter refers. Following your non-payment of the above stand allocated to you in 2006. Council is hereby repossessing the stand with immediate effect. Yours faithfully, J GUMBO DIRECTOR OF ESTATES, EDUCATION, HOUSING AND COMMUNITY services FOR TOWN CLERK.” Subsequent to that the Municipality went on to allocate the vacant stand to a third party, not cited in these proceedings, one Ottilia Chakanaka, who put it to good use managing to commence construction of a dwelling such that when the applicant awakened from his slumber 4 years later in January 2012, he discovered that “Ottilia Chanakira was occupying and developing the stand.” The applicant must have accepted the reality that he has lost the stand because in this application he does not seek to recover it from Chanakira, neither does he seek to enforce the agreement he entered into with the Municipality. Instead, the relief that he seeks is strange indeed. He craves a declaratory order that the lease agreement between him and the respondent entered into in 2006 is binding between the parties, even when he accepts that the subject matter of that agreement is no longer available. He would like the court to order the Municipality to allocate him a stand “similar to stand no. 17036 Zengeza 4 (infill) Chitungwiza” and costs of suit on a legal practitioner and client scale. Mystery surrounds the prayer for the allocation of a similar stand because there is no agreement providing for “a stand similar to stand No 17036 Zengeza 4.” The suit can therefore not be an effort to enforce an agreement. If it is a claim for damages arising out of a breach of contract, it does not say so. The applicant gracefully concedes that he breached the terms of the agreement by failing to commence the erection of buildings on the stand but blames it on the unfavourable economic situation prevailing in the country “between 2007 and 2010.” He recognises the respondent’s right, owing to that breach, to declare the agreement terminated. He does not dispute that such a letter was written and directed to his domicilium citandi but maintains that HH 739-15 HC 5351/13 he never received it as he did not reside at that address. He does not explain why he chose that address in the first place. According to the applicant the agreement remains valid and effectual because no notice was given. For that reason he should be allocated another stand following a declaratur that the agreement remains valid. The point was made in Johnsen v AFC 1995 (1) 65 (H) 72 E-F that: “The condition precedent to the grant of a declaratory order under s 14 of the High Court of Zimbabwe Act 1981 is that the applicant must be an ‘interested person’, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The interest must concern an existing future or contingent right. The court will not decide abstract, academic or hypothetical questions unrelated thereto. But the presence of an actual dispute or controversy between the parties interested is not a prerequisite to the exercise of jurisdiction: see Exp Chief Immigration Officer 1993 (1) ZLR 122 (S) at 129 F-G; 1994 (1) SA 370 (ZS) at 376 G-H; Munn Publishing (Pvt) Ltd v ZBC 1994 (1) ZLR 337 (S) and the cases cited.” The court went on to deal with the circumstances where discretion would be exercised remarking: “Two issues arise. The first issue is whether or not this is a proper case of a declaratory order. The second issue is, if this is a proper case for a declaratory order, whether the applicant and fellow farmers are entitled to the declaratory order sought ... The question of whether or not a declaratory order should be made in terms of the above provision should be examined in two stages. Firstly the applicant must satisfy the court that he is a person interested in an existing, future or contingent right or obligation. If satisfied on that point, the court then decides a further question of whether the case is a proper one for the exercise of the discretion conferred on itself: RK Footwear Manufacturing (Ptv) Ltd v Boka Booksales (Pvt) Ltd 1986 (2) ZLR 2009 (H) and Bulawayo Bottlers (Pvt) Ltd v Minister of Labour, Manpower Planning and Social Welfare and Ors 1988 (2) ZLR 129 (H).” Relating to the issues at hand the applicant would want the court to decide abtract, hypothetical and academic questions of the binding nature of an agreement that ceased to exist several years ago as a result of his own failure to abide by it. By his own admission he failed to develop the stand. By his own admission even before he embarked on this application, the stand had already been repossessed and allocated to Chanakira who developed it and took occupation. By his own admission notification of the repossession of the stand was sent to his domicilium citandi which he chose with his eyes open and out of his own free will. I do not find it necessary to relate to the case authorities relied upon in the applicant’s heads of argument on service of a summons on a vacant stand. This is because that is not the only determining factor. The parties contracted over stand 17036 Zengeza 4 Chitungwiza which stand is no longer available it having been taken over by an innocent third party following the applicant’s HH 739-15 HC 5351/13 failure to develop it, an eventuality which the applicant not only accepts but also embraces. The agreement can therefore no longer be enforced. The applicant realises that and therefore seeks the enforcement of a new “contract” not agreed upon by the parties, that of “a stand similar to stand No 17036 Zengeza 4.” He cannot enforce a nonexistent contract neither can the court make a contract for the parties. The doctrine of sanctity of contract and the right of parties to make a contract for themselves is sacrosanct. What the applicant seeks is therefore at best a new contract not concluded by the parties and at worst a claim for damages. Regrettably he can get neither. He has not pleaded any case for damages and has adopted the wrong procedure for it. Whichever way there can be no relief for the applicant on the present papers. He must suffer grief. Although the applicant did not appear in court even after his legal practitioners were served with the notice of set down for the hearing and did not even renounce agency, I told counsel for the respondent that in dismissing the application I would have to give reasons for doing so. That was informed by the fact that I regard this as a case in which the applicant should be made to pay costs on a higher scale. Parties who have no reason to come to court should not be allowed to do so just to cause confusion and anxiety on others and when the day of reckoning comes, to then run away and hide leaving the other party not only to prepare the court papers and apply for a set down date but also to incur sheriff costs for service of process. I have shown how this application was ill-conceived from the very start by an applicant who hoped to benefit from his own default, how it lacked merit in the sense that it does not even identify any cause of action upon which it was made and indeed how the applicant hoped to enforce a clearly non-existent clause in a contract that long ceased to exist as a result of his own fault. For that reason the applicant must still suffer the consequences of his tardiness. An award of admonitory costs is clearly the appropriate dose he badly needs. In the result, the application is hereby dismissed with costs on a legal practitioner and client scale. Ms Chiwaridzo Attorneys –at-Law, applicant’s legal practitioners Matsikidze and Mucheche, respondent’s legal practitioners