Chief Court Reporter
The High Court has turned down efforts by businessman Oliver Chidawu to reverse the transfer of more than 380 million Pelhams shares from businessman Mr Jayesh Shah to TN Asset Management, saying the attempt constitutes abuse of court process. Mr Chidawu’s three firms – Broadway Investments, Danoct Investments and Dannov Investments – formerly owned the shares in Pelhams, which they lost to Mr Shah after Mr Chidawu failed to settle a $2 million debt.
Mr Shah, who was holding on to the three firms’ shares in Pelhams, sold them to TN Asset Management resulting in the firm becoming the major shareholder with about 36 percent shareholding in the furniture company.
Although the Supreme Court had previously decided the matter in favour of Mr Shah, Mr Chidawu brought a fresh application to the lower court seeking to reverse the Shah-TN Asset Management deal.
But in his ruling Justice Nicholas Mathonsi, rejected the request saying Mr Chidawu was asking him to do the impossible – to overturn the Supreme Court decision.
“We are covering ground that has already been traversed merely because the applicants think they can try their luck,” said Justice Mathonsi.
He said it should have been obvious to Mr Chidawu and his companies that the High Court was bound by the Supreme Court decision.
“When they prosecuted this application knowing what the Supreme Court had already determined without even putting forward any new facts upon which a different conclusion could be made, they were abusing the process.
“It is this kind of conduct which should be frowned upon with a good measure of punitive costs,” said Justice Mathonsi dismissing the application.
In his judgment, Justice Mathonsi also referred to the Supreme Court decision on the matter.
Chief Justice Godfrey Chidyausiku ruled that Mr Chidawu delivered the Pelhams shares to Mr Shah in negotiable form as security for the loan he received.
He also noted that Mr Chidawu freely consented to the shares being sold or negotiated in the event of his failure to repay the loan.
“For the first applicant (Mr Chidawu) to seek the assistance of the law to renege on a contract he openly and willingly entered into, smacks of duplicity and deceit. Its sounds crooked,” said the Chief Justice.
The shares were sold on the Zimbabwe Stock Exchange.
Through his lawyer, Advocate David Ochieng, Mr Chidawu brought several applications, initially trying to prevent the sale of the shares and in the latest case was trying to reverse the transfer.
He has been to the Supreme Court and back still pursuing the same issue.
In this case, Mr Chidawu was insisting that he did not authorise Mr Shah to transfer the shares and that he had given the documents known as “security interest in the shares” and that he did not pass ownership.
For that reason Mr Chidawu argued that Mr Shah had no right to sell the shares without instituting legal proceedings against him.
But Mr Innocent Chagonda, arguing the matter for Mr Shah, said his client acted lawfully and within his rights conferred upon him by the agreements of the parties.
Adv Thabani Mpofu who was acting for TN Asset Management, submitted that considering that the same issue was decided by the superior court, Mr Chidawu’s application was an abuse of the process.
The court agreed with Mr Chagonda and Adv Mpofu’s submissions and threw out Mr Chidawu’s application.