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Fidelis Munyoro Chief Court Reporter
The Supreme Court has dismissed an appeal by Tetrad Investment Bank in a dispute with Bindura University of Science Education involving more than US$500 000, which the university had invested in the troubled bank.
Tetrad had asked the superior court to decide whether it was proper for the lower court to dismiss as not being urgent its application to stop the attachment and sale of its assets by the university.

Deputy Chief Justice Luke Malaba agreed with the lower court that the matter was not urgent, but said it should not have been dismissed but struck off the roll.

“The unanimous decision of this court is that the appeal is without merit,” said Deputy Chief Justice Malaba in his ruling on Monday.

Justice Paddington Garwe and Acting Judge of Appeal Justice George Chiweshe concurred.

Advocate Thabani Mpofu, who argued for Tetrad, implored the court to allow the appeal arguing that having found that matter was not urgent, the lower court should not have dismissed it but simply struck it off the roll.

But Adv Sylvester Hashiti disagreed arguing the bank had itself to blame because it never treated the matter as urgent and asked the court to throw out the appeal.

In his ruling, Deputy Chief Justice Malaba accepted Adv Hashiti’s submission that when the lower court came to the conclusion that the matter was not urgent it had taken into account the conduct of the bank, which did nothing to show that it was treating the matter with a sense of urgency.

He said the fact that the lower court dismissed the application for lack of urgency this did not stop the case from being heard in the High Court.

The lower court, said the judge, should have declined to hear the matter and removed it from the roll.

He then amended the lower court’s order to reflect the correct position of the effect of its decision.

“There is therefore no proper appeal before us,” said Chief Justice Malaba. “Accordingly . . . the order of the court a quo is amended to read ‘the matter is not urgent. It is removed from the roll’. The matter before this court is struck off the roll with costs.”

This means the case is still pending in the High Court.

Tetrad made an urgent chamber application for rescission of a provisional sentence at the High Court after the Deputy Sheriff had moved in to prepare an inventory of its assets for sale to recover nearly US$500 000 which BUSE had invested with the troubled financial institution.

The university entered into an investment deal with Tetrad in terms of which the former deposited US$550 000 with the bank and it acknowledged its obligation to pay back US$555 958,33 including interest on maturity.

The university deposited the money on October 9, 2013 with the maturity date being November 8 the same year. Tetrad failed to honour its ob- ligation.

After repeated demands by BUSE for the payment of the debt, Tetrad was only able to pay US$82 942,81. The bank failed to defend the claim resulting in a default judgment being given against it on April 2 by Justice Nicholas Mathonsi.

Adv Mpofu was instructed by Ms Sharon Maposa of Mawere and Sibanda law firm while Adv Hashiti was instructed by Mutamangira and Associates Law Practice in the matter.