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Green Gables wrangle continues

06 Apr, 2014 - 08:04 0 Views

The Sunday News

Sunday News Reporter
FORMER proprietor of Elite High School Mr Maxwell Shumba has filed a High Court application seeking leave to execute a provisional order granted in his favour to evict the Apostolic Faith Mission of Portland Oregon from Green Gables Farm, pending determination of the church’s Supreme Court appeal against eviction.

Mr Shumba earlier this month obtained a provisional order from the High Court directing AFM to move out of the farm which is situated on the outskirts of Bulawayo.

However, AFM, represented by Mr Sindiso Shepherd Mazibisa of Cheda and Partners, appealed against the provisional order to the Supreme Court, a move that automatically suspended the order.

Mr Shumba through his lawyers, Job Sibanda and Associates last Friday filed a request with the High Court, seeking leave to execute the provisional order to evict AFM from the farm, pending determination of the church’s Supreme Court appeal against the order.

In his affidavit filed at the High Court, Mr Shumba prayed that the court allows him to evict AFM from Green Gables Farm, also known as the remaining extent of Subdivision B of Dustal Farm, while the church’s appeal was being heard.

“This is an application for an order directing that, despite a purported appeal to the Supreme Court  noted by the respondent in case No HC 499/14, I be granted leave to execute the provisional order granted in my favour, pending determination of such appeal.”

In its appeal, seeking to have the High Court judgment set aside, AFM argues that Justice Kamocha erred in granting the provisional order without any notice on Green Gables which has been occupying the property for five years.

The church further describes the provisional for their eviction as ill gotten accusing Mr Shumba of lying to and misleading the courts of law, by concealing previous court orders that evicted him from the property on grounds of flouting terms of the lease agreement.

“The court a quo erred at law in granting an order for the eviction of Green Gables High School without any notice on the school which has been operating on the premises for five years.

“The court a quo erred in granting an order to restore the respondent to Green Gables Farm when the respondent never occupied the farm at all and does not have a lease agreement or lawful right to occupy same,” reads part of the appeal.

However, Mr Shumba, in his application for leave to execute the provisional order, denied that his provisional order was ill gotten and also shot down AFM’s appeal to the Supreme Court which he described as trite, fatally defective and a ploy to delay justice on the matter.

Mr Shumba argued that it was not possible for AFM to appeal against an interlocutory order as at law only full judgments could be appealed against.

“The respondent (AFM) purported to appeal against the whole judgment of the High Court. There is no judgment in the matter appealed against, just a provisional order. In short, no reasons were given for the order made and without those reasons I wonder how the respondent was able to frame an appeal.

“It is trite that an appeal is noted against the reasons for any order or judgment.
“Consequently for the reason that respondent purported to note an appeal without knowing the reasons for the order made, or requesting any such an appeal is clearly meant to delay the day of reckoning and has not been genuinely made,” argued Mr Shumba.

Apostolic Faith Mission is also seized with a $183 million lawsuit from Mr Shumba who is claiming damages and losses suffered during the period between 2009 and 2013 when AFM repossessed the farm where he was running Elite High School.

Shumba is also claiming $5 million from AFM as compensation for the developments he made at the farm since 1999 when he entered into a lease agreement with the church to run a school at the property.

The two parties have been involved in a protracted legal battle spanning over five years which started when Mr Shumba was evicted from Green Gables Farm where he was running Elite High School, for non-payment of rent.

AFM cancelled the lease agreement with Mr Shumba, after obtaining an eviction order that was granted in 2009 by Justice Maphios Cheda.
Acting Bulawayo High Court judge (as he was then) Justice Misheck Cheda, however, set aside the ruling for Mr Shumba’s eviction, which automatically meant Mr Shumba should have returned to the property.

However AFM continued to occupy the property resulting in a protracted battle which saw the two parties in and out of court.

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