eBusiness Weekly
Business Writer
Controversial businessman, Jayesh Shah’s Al Shams Global BVI Ltd, has suffered a another legal setback in its bid to retain possession of a title deed to a land property tendered by Equity Properties to secure a loan from Interfin Bank, but which it allegedly obtained illegally.
The Supreme Court judgement, handed down by Justice Samuel Kudya, sitting with Justice Joseph Musakwa, dismissed the appeal by Al Shams for an order to set aside a High Court judgement that went against it.
Shah’s firm had its urgent application for an order directing Equity Properties to surrender a replacement title deed it obtained in replacement of the original “illegally” held by Al Shams, dismissed with costs last year.
Al Shams application was dismissed on the grounds that it failed to seek leave of the court, for the second time in a row, before approaching the court with its appeal against the earlier High Court judgment.
The parties were already locked in a legal wrangle over who rightfully owned the title deed to certain property, Lot 3 of Bannockburn, Harare, held through Deed of Transfer 9068/2008.
Shah’s Al Shams Global also sought an order barring Equity Properties from using the replacement title deed, which the businessman’s firm was allegedly holding or obtained unprocedurally.
Respondents in the appeal case filed by Al Shams Global were the Deposit Protection Corporation (DPC), Kitumetsi Zawada (DPC company secretary), Equity Properties and the Registrar of Deeds.
Background of the facts are that DPC, the liquidator of Interfin Bank, which is under liquidation, had used a title deed tendered by Equity Properties to secure its loan from the bank, to also securitise a debt to Al Shams.
The court said matters came to head after Equity Properties fully settled its liability to Interfin Bank, which was secured by the title deed, and demanded back the collateral it had put forward.
“Indeed, the liquidator was constrained to demand the surrender of the title deed after the third responded acquitted its indebtedness to Interfin, thereby obliging the liquidator to cancel the mortgage bond.
“Following the repayment of the loan, the liquidator was also obliged to hand the title deed over to the third respondent (Equity Properties),” the court said in backgrounding the case.
“Bereft of any solution, the liquidator applied for a replacement title deed from the Registrar of Deeds, the fourth respondent herein. The fourth respondent acceded to the application and issued a replacement title deed on 7 September 2021. That triggered the present litigation.
“The appellant moved swiftly and filed an urgent application for a mandamus on 13 October 2021. As I have said, it sought in the interim, the immediate surrender to the respondent (Registrar of Deeds) of the replacement title deed and the barring of the third respondent from using it for whatever purpose,” the court said.
Al Shams however argued that not only were the respondents aware that it was in possession of the title deed, but that Equity was selling properties using the disputed title deeds, allegedly causing irreparable damage to it.
But Equity Properties and its co-accused opposed the urgent application arguing that Al Shams had not sought leave of the court to sue the liquidator of Interfin, DPC and the misjoinder of the second respondent in her personal capacity.
“The court a quo found that the application was improperly before it by reason that no leave to sue had been sought and obtained before embarking on litigation. In arriving at the conclusion the court a quo followed the case of Chikura N.O & Anor vs Al Shams Global BVI Ltd”.
The court said leave of the court was necessary in such circumstances, as a broader consideration of protecting the commercially fragile company from unnecessary litigation quite apart from merely protecting the interests of the creditors.
But Al Shams was disgruntled by that outcome, after its application was struck off the roll, and launched the appeal, which has since been dismissed by the Supreme Court, arguing on six grounds.
One of the key arguments included an attack on the conclusion of the High Court that ” leave to sue was required” before Al Shams proceeded to lodge the urgent chamber application against Equity Properties.
The Supreme Court reasoned that the judgment striking off Al Shams Global’s urgent application to the High Court for failure to seek leave of the court to sue Interfin, a company in liquidation, was interlocutory in nature.
It also said the High Court summarized the respective positions of the parties, but simply did not engage in merits at all. “It left all the issues in the dispute unresolved and it is open to the court a quo to engage and determine all the issues once leave to sue has been sought and obtained,” Justice Kudya said.
In its conclusion, the court said Al Shams Global, was in criminal procedure terms “a repeat offender” who has disregarded, not only the procedure for seeking the leave of more than once, but also trashed the advice of the same.
“It has doggedly stuck to its habit of approaching the court without leave despite the decision of the court in an earlier case that it brought. In Chikura N.O vs Al Shams Global BVI Ltd, supra, the applicant sued the liquidator without first seeking leave.
The court noted that and without commenting on the propriety of the earlier judgment of the High Court, leave was again necessary in the applicant’s second approach to court, adding it was clear the appellant sued the same liquidator once again without seeking leave.
“In my view, a conscientious litigant would have been more circumspect and proceeded with caution. Yet, despite the clear provisions of s 43 (2) of the High Court Act, that leave was required, the appellant again lodged an appeal without seeking leave to appeal.
“By so doing, it invited the sanction of the court by the only weapon available to it, the grant of costs on a higher scale, so that in future the appellant will proceed with caution.
“In the result, it is ordered as follows: the matter is struck off the roll. 2 The appellant shall bear the costs on a legal practitioner and client scale.
