Barbra Munava N.O. and Woodlane Family Trust v Francis Roland Haisaid

The applicants obtained a summary judgment in the Magistrate's Court for eviction of the respondent from the property known as remainder of Lot 3 of Lot 56A Borrowdale Estate (17 Woodlane Road, Borrowdale, Harare) and payment of holding over damages. A writ of ejectment was issued and executed on 30 December 2019, with keys handed to applicants' legal practitioners. On 31 December 2019, the respondent obtained an ex parte rule nisi from the Magistrate's Court staying the execution and ordering restoration of the property if execution had already taken place. The applicants' legal practitioner was made aware of the rule nisi on 31 December 2019 when the respondent personally handed him a copy. On 1 January 2020, the respondent re-occupied the property. On 6 January 2020, applicants filed this urgent spoliation application in the High Court, alleging that the respondent unlawfully re-occupied the property without using the Messenger of Court as required by law. The rule nisi was returnable on 14 January 2020.

• Whether the High Court should decline jurisdiction on the grounds that applicants had not exhausted internal remedies available in the Magistrate's Court
• Whether exceptional circumstances existed to exempt the applicants from the requirement to exhaust internal remedies
• Whether the respondent's re-occupation of the property constituted unlawful spoliation warranting urgent relief from the High Court
• Whether costs on an attorney and client scale were justified

The application was struck off the roll with costs of suit on an attorney and client scale.

The binding legal principles are: (1) The duty to exhaust internal remedies, although developed in administrative law, applies to all facets of civil litigation in Zimbabwe. (2) A court will decline to exercise jurisdiction where an effective, available and adequate internal remedy exists, unless exceptional circumstances are shown. (3) An internal remedy is effective if it offers a prospect of success and adequate if it is capable of redressing the complaint. (4) A High Court should not intervene as a court of first instance where a lower court is properly seized with a matter and has not yet completed its process, as this would result in contradictory orders and constitute an abuse of process. (5) Where an ex parte order has been granted, the affected party must either oppose on the return day or anticipate the return day in terms of the relevant procedural rules before approaching a higher court. (6) The High Court, despite having inherent jurisdiction to do anything not forbidden by law, may decline jurisdiction in the interests of justice where internal remedies have not been exhausted.

The court observed that the Magistrate's Court may lack jurisdiction on the grounds that the monetary value of the property exceeds its jurisdictional limits, but noted this argument should be raised before the Magistrate's Court on the return day or anticipated return day, not in the High Court as a court of first instance. The court also commented that costs on an attorney and client scale are awarded in special circumstances where the court wishes to express displeasure at reprehensible conduct, such as where an application is frivolous, vexatious, and amounts to unacceptable abuse of court procedures.

This case is significant in Zimbabwean civil procedure for affirming and extending the principle of exhaustion of internal remedies beyond administrative law to all civil litigation. It establishes clear guidelines on when a High Court will decline to exercise its inherent jurisdiction in the interests of justice, particularly where a lower court is seized with the same matter and effective internal remedies are available. The judgment reinforces the court hierarchy and the principle that higher courts should not intervene prematurely in proceedings properly before lower courts, preventing forum shopping and contradictory orders. The case also provides guidance on when costs on an attorney and client scale are appropriate in cases of abuse of process, particularly where legal practitioners proceed with applications despite having knowledge of facts that make the application inappropriate.