Prosper Dembedza Court Correspondent
A High Court application by Harare North legislator Allan Markham has been opposed and described by the defendant’s lawyers as having no recognisable basis in law.
Markham filed founding affidavits against seven respondents who are Augur Investments, businessman Kenneth Sharpe, Tatiana Aleshina, Michael Van Blerk, Doorex Properties, City of Harare and the Local Government Ministry.
This is after Markharm last year placed a legal challenge regarding stand 654 Pomona Township measuring 273, 2 hectares of land, which was transferred to the 7th respondent.
Through their lawyers Scanlen and Holderness and advocate Zhuwarara, the respondents argued that clearly no valid proceedings ever came into being before the court and for that reason the present application must be dismissed.
“The 1st applicant purports to be suing in a representative capacity as well as in his own individual right.
“The said applicant again does not relate to his direct interest in stand number 654 Pomona Township meassuring 273,2933 ha,” reads the opposing heads of arguments.
The respondents further stated that it is an old- age truism that a person who approaches the court for relief must at least have an interest in the sense of personally adversely affected.
They said for proper proceedings to actuate all the applicants must have outlined how they were adversely affected by the transfer of land from the 9th to the 7th respondent.
“The applicants do not profess a direct interest in the land in issue.
“As a result, the present application should fail on account of the applicant’s lack of standing to sue for the invalidation of a deed of settlement, which deed was validly entered into and recorded by the Supreme Court and immortalized in a High Court order,” said the respondents.
They further stated that knowing that their whole cause would be disputed, the applicants gambled and proceeded.
” This conduct is prescribed by law and must see the summary dismissal of the present application.
“The application should therefore fail as adjudged to be the correct manner of dealing with a litigant who brings an application knowing that there are material disputes of fact,” reads the opposing heads of arguments.
The respondents argued that the present disputation cannot be resolved on the papers and the applicants from their lengthy and speculative founding papers ought to have known that they could not sustain their cause without resorting to trial.
“Our law is clear, parties who are not privy to a contract cannot sue or be sued on it. In the present matter the the applicants being 3rd parties are barred at law from seeking the no annulment of the contractual arrangements that actuated and subsist in and among the respondents,” said the respondents.
They are saying that the applicant’s claim that the deed of settlement is a nullity beacuse no requisite authority was obtained by Hebert Gomba who signed on behalf of the 5th respondent.
“This argument is illusory. In paragraph 6.1 of the deed of settlement the 5th respondent specifically warrants that the requisite authority to sign had been obtained. Even if the authority had not been obtained the deed of settlement would still bind the 5th respondent on account of the turquand rule,” reads the heads of arguments.
The respondents went further stating that the court cannot be called to negate the arrangement concluded in the Supreme Court and immortalized in the High Court order by parties that were never privy to the dispute or attendant litigation.
“The law is clear an order of this court must be obeyed or given effect to unless it has been varied or set aside given this court, and not even by consent can parties vary or depart there from,” argued the respondents.
The respondents further argued that failure and refusal to comply with order rule 18 render the present proceedings still-born.
“There is nothing illegal or fradulent in setting a matter in fact, the courts encourage parties to settle.
The respondents, fully aware of their legal positions, proceeded to negotiate and agree in a compromise, which compromise was lodged with the Supreme Court and then registered as a court order of the High Court,” said the respondents.