Chigami 2 Syndicate & 2 Others v Cleo Brand Investments (Pvt) Ltd

The parties entered into a "Memorandum of an Option Agreement" in January 2019, whereby the applicants (Chigami 2 Syndicate & 2 others) permitted the respondent (Cleo Brand Investments) to work on three of their mining claims (Antelope Mine 1, 2, and 2) in return for monthly payments. The agreement provided for USD 3,000 monthly for the first 6 months (with January and February paid as a lump sum of USD 6,000 upon signature), and thereafter USD 10,000 monthly after commissioning the mine. The relationship deteriorated and disputes arose over the validity and interpretation of the contract. The respondent had previously instituted action proceedings in Harare (HC 8171/19) seeking a declaration that the agreement was valid and binding. The applicants entered appearance to defend that action but had not yet filed their plea. Subsequently, the applicants instituted the current application in Masvingo seeking a declaration that the same agreement was invalid and unenforceable, and an order evicting the respondent from the mining claims.

• Whether the plea of lis alibi pendens (matter pending elsewhere) should be upheld where parallel proceedings involving the same parties, same subject matter, and same cause of action were pending before another court of competent jurisdiction
• Whether the court should exercise its discretion to stay the current proceedings or allow them to proceed despite the pendency of the earlier action
• Whether the applicants had discharged the onus of proving that the parallel proceedings were not vexatious

The application was dismissed on the basis of lis alibi pendens. The court indicated that the proper order should have been to stay the proceedings pending the decision in HC 8171/19 rather than a dismissal with costs, but this could only be corrected by the Appeal Court following the notice of appeal filed by the applicants.

Where proceedings are pending before a court of competent jurisdiction between the same parties, concerning the same subject matter, and founded on the same cause of action, a subsequent application seeking converse relief on the identical issues constitutes lis alibi pendens and should be stayed. A party who institutes parallel proceedings bears the onus of establishing that they are not vexatious by satisfying the court that, despite all elements of lis pendens being present, justice, equity, and the balance of convenience favour allowing those proceedings to proceed. Mere convenience, perceived congestion of court rolls, or preference for application proceedings over action proceedings do not justify parallel litigation where adequate procedural mechanisms exist within the existing proceedings to expedite resolution of the dispute.

The court observed that the contract between the parties raised serious questions about its nature and validity, including whether it was truly an option agreement or a tribute agreement under the Mines and Minerals Act [Chapter 21:05], and whether its terms were sufficiently certain. However, these substantive issues were not determined as the matter was decided on the preliminary point. The court also commented that the wording of orders is important to accurately reflect the basis of the decision, particularly to avoid creating unintended res judicata effects where a matter is stayed on procedural grounds rather than dismissed on the merits. The court noted it would have invoked Rule 449 to correct the anomaly in the original order had an appeal not been noted.

This case is significant in Zimbabwean civil procedure law for its application of the doctrine of lis alibi pendens and the principles governing parallel proceedings. It establishes that: (1) courts will not countenance the institution of parallel proceedings between the same parties on the same subject matter merely because one forum is perceived to be more convenient or less congested than another; (2) parties who institute parallel proceedings bear the onus of proving they are not vexatious; (3) the plea of lis alibi pendens can be raised by a plaintiff in earlier proceedings who is sued as a defendant in later proceedings; (4) the rules of court provide adequate mechanisms (such as stated case procedure under Rule 199 and procedures to curtail proceedings under Order 126) to expedite matters without resorting to duplicative litigation. The case reinforces the policy against forum shopping and emphasizes judicial economy and finality in litigation.