The ManicaPost
Liberty Dube
Post Correspondent
DESTINY for Afrika Network National Housing Projects Development Trust’s trustees have scoffed at their suspension, arguing that their founding president, Reverend Obedia Msindo has no power to do so.
Appearing before Mutare magistrate, Ms Purity Gumbo at Mutare Civil Courts on Wednesday where Destiny for Afrika Network National Housing Projects Development Trust through another trustee, Mr Gerald Mabika applied for a spoliation and ancillary relief order against Messrs Wilson Masokovere and Temba Sauramba, the latter argued that the applicants had no right or powers to suspend them.
Before this week’s court appearance, Destiny for Afrika Network National Housing Projects Development Trust was granted an order on an urgent basis for Messrs Masokovere and Sauramba to vacate the Mutare offices, and they defied it.
Messrs Masokovere and Sauramba, who are being represented by Mr Chris Ndlovu of Ndlovu and Gonese Legal Practitioners further argued that they had not been in undisturbed possession of the Mutare offices, and that the applicants were trying to muscle them through the spoliation order application.
Destiny of Afrika Network National Housing Projects Development Trust is represented by Mr Passmore Nyakureba of Maunga and Maanda and Associates.
Mr Nyakureba told the court that the respondents were approaching the courts with “dirty hands”.
He said there was no requirement under the law that a trustee must be authorised by a board resolution before he acts.
“The courts should naturally decline to exercise its jurisdiction to hear Messrs Maskovere and Sauramba until they have complied with its order first. Thus upon making a finding that a litigant’s hands are dirty, the court has no discretion, but to decline its jurisdiction until such a time when the litigant complies with the law or court order as the case maybe. The entire cocktail of objections taken by Messrs Masokovere and Sauramba are not sustainable and a misplaced placement of the rules of this honourable court,” argued Mr Nyakureba.
He further stated: “Messrs Masokovere and Sauramba admitted in their Notice of Opposition that they are still occupying the premises at Number 29, 5th Street, Mutare despite them being ordered to return peaceful and undisturbed possession to the Applicant by this honourable court, and being served with the said order by the Messenger of Court.”
On the powers of Reverend Msindo to suspend Messrs Masokovere and Sauramba, Mr Nyakureba argued: “The respondents in one breath challenge outright the authority of the deponent (Mr Mabika) to the Applicant’s founding affidavit and in another breath, they seem to accept that it is indeed the Applicant (Reverend Msindo) who is the applicant in this matter. What is plainly clear, however, is that, it is the Applicant himself who has approached this honourable court for relief, and not the deponent in his individual capacity.”
He added: “The legal principle which can be deduced from the above cases is that, a trustee does not need the authority of other trustees to institute legal proceedings on behalf of the Trust. In fact, there is no requirement under our law that a Trustee must be authorised by a board resolution before he so acts.”
Mr Ndlovu said Reverend Musindo, through the applicant, Mr Mabika had no powers to suspend the respondents from employment.
“The Applicant has alluded to the fact that the first and second respondents have been using the offices since their appointment as trustees, and also doubling as non-executive employees of the Trust. The incorrigible fact is therefore that the first and second respondents, and not the applicants have been in undisturbed possession of the offices, and the applicants are trying to muscle them out through this application.
“The Applicant argues that a certain team from Harare was denied access to the offices by Messrs Masokovere and Sauramba. The first and second respondents dispute that, and even if it was to be accepted that they blocked the audit team that is not spoliation. You cannot be despoiled of something you never had physical control of.
“The first and second respondents have demonstrated that the Applicant never had possession of the offices in issue. The founder of the Trust operates from Harare as the documents shows. The control of the Mutare offices was by the first and second respondents. Spoliation has nothing to do with ownership. There is a difference between being an owner and being a possessor. The Applicant was never in possession of the offices,” said Mr Ndlovu.
He also dismissed the letter written by Reverend Msindo appointing Mr Mabika to sign affidavits on his behalf.
“The letter that was written by Obedia Msindo appointing Mabika to sign affidavits on his behalf cannot be used to cloud his legal status, and authority to represent the Applicant. Obedia Msindo seating alone in his office has no authority acting alone to bind other trustees.
‘‘It was improper for Msindo to singlehandedly appoint Mabika because the Trust rules commands that all decisions or business of the Trust are to be conducted by the majority vote of trustees. Unfortunately Obedia Msindo is not the majority, and does not represent the majority. He thought he had the authority, yet he did not. The papers here are a legal nullity and the Applicant’s application should be dismissed,” argued Mr Ndlovu.
The matter was adjourned to a later date.
