Africa-Press – Zimbabwe. IN a landmark ruling by the High Court of Zimbabwe, Assemblies of God — Back to God (AoG-BTG) has been slapped with punitive costs after it withdrew court proceedings in which it sought to evict another church, Assemblies of God — Spiritual Movement (AoG-SM), from its headquarters in Marondera.
The withdrawal was sought after the trial had started and the plaintiff’s main witness, Nathan Sethlako, had been cross-examined by defendant’s counsel, Lincoln Majogo of Mtetwa and Nyambirai Legal Practitioners.
In the eviction summons under R-HCH5359-23, AoG-SM was cited as the first defendant, while clerics Luckymore Zinyama, Phillip Zinyama and David Makwindi were cited as the other defendants, respectively.
Chipo Maphosa of Maposa-Mahlangu Attorneys represented the plaintiff.
In its summons filed in 2023, AoG-BTG, represented by Sethlako, alleged that AoG-SM had seceded from the Marondera Assembly.
The plaintiff further alleged that it had exclusive rights of occupation over the first defendant’s head office, Stand 2666T, Rujeko Township, Marondera, but did not specify the documents giving it such rights.
When the defendant requested further particulars over these details, the plaintiff responded that it had a lease agreement with the Municipality of Marondera entered into “in or about 1978-1980”.
However, on October 27, the plaintiff applied to amend its response to substitute “lease agreement” with “agreement of sale”.
Both the lease agreement and the agreement of sale were never discovered or produced in court.
In his evidence, Sethlako alleged that the plaintiff had lost its lease agreement/agreement of sale and that attempts to recover copies from the Municipality of Marondera were in vain.
However, under cross-examination, Sethlako conceded that he had not placed any evidence of correspondence with the Marondera City Council.
Parties were supposed to resume the trial on October 30 for continuation of cross-examination before the plaintiff made a surprise U-turn and advised that it was now withdrawing the summons due to “hurdles that plaintiff had encountered”.
The defendant sought costs on a higher scale.
In his ex-tempore [without preparation] ruling, Justice Regis Dembure noted that costs on a higher scale are punitive in nature and reserved only where special circumstances exist.
The judge commented that punitive costs were warranted in this matter because of the plaintiff’s conduct.
In his ruling, the judge observed that the plaintiff had been made aware in previous interlocutory judgments that they needed to have the documentation necessary to prove their rights to the property, and despite such warnings, the plaintiff had continued with the case.
The defendants argued that the withdrawal was only necessitated by the cross-examination that exposed the fundamental weaknesses of the plaintiff’s case.
The judge warned litigants not to abuse court processes by causing unnecessary waste of its time, time of other citizens, and the time of the defendants.
They further warned that church leaders should be sensible in contemplating going to court because there are costs associated with it.
In conclusion, the judge awarded punitive costs against the plaintiff.
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