Augustine Tanaye DUBE V Barclays BANK OF Zimbabwe LTD Staff Pension FUND

### Preamble
1
HB 78/22
HC 218/21
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AUGUSTINE TANAYE DUBE

Versus

BARCLAYS BANK OF ZIMBABWE LTD

STAFF PENSION FUND

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 28 FEBRUARY & 17 MARCH 2022

Opposed Application

M. E. P. Moyo for the plaintiff

Ms E. Bhebhe for defendant

MOYO J:	This is a special plea.  The plaintiff issued summons against the defendant claiming damages for injuries allegedly sustained by plaintiff at an occasion held at the defendant’s property.  The claim is couched as follows:

Wherefore plaintiff claims against the defendant:

The payment of the sum of ZWL$300 001,00 being damages for pain and suffering arising from a slip and fall accident which occurred on 13 March 2019.

The payment of US$2 000,00 or the bank rate equivalent in ZWL, being damages for future medical expenses arising from a slip and fall accident on 13 March 2019.

Interest at the prescribed rate from the date of summons.

Costs of suit.

Defendant raised a special plea to the effect that;

The summons fatally defective as it does not comply with the High Court (Civil) Rules SI 202 of 2021 in that it must contain defendant’s business and residential addresses as well as that it therefore does not comply with form1 of the High Court (Civil) Rules 2021.  In terms of Rule 12 (5).

“Before issue, every summons shall set forth;

the surname and first names or initials of the defendant by which the defendant is known to the plaintiff, the defendant’s residence or place of business and where known, the defendant’s occupation and employment address, and, if the defendant is sued in any representative capacity, the capacity in which defendant is sued.”

Defendant contends that because the defendant’s address is not on the face of the summons in compliance with the new rules, then the summons is fatally defective for want of compliance with a peremptory statute.  The summons in this matter was issued on 25 March 2021, this court takes judicial notice of the fact that the New High Court (Civil), Rules where promulgated sometime in July 2021.  Neither party has made submissions on the aspect of what came first between the summons and the rules but clearly the summons came first.  It therefore follows that if defendant wanted to challenge the validity of the summons for compliance or otherwise with the rules, defendant should have cited the rules relevant at the material time of issue of summons as obviously plaintiff would not have complied with rules yet to be promulgated.  Without any further issues on this point the special plea in this regard fails.

Defendant also raised another objection, that of ownership of the building.  Defendant pleads that it is not the owner of the building hence a wrong defendant has been brought to court.  Unfortunately I am unable again to resolve this issue which is not common cause between the parties.  Neither party has provided the court with proof of ownership of the building and hence this point remains one party’s word against the other’s word.  I actually hold the view that this is a point on the merits as evidence has to be lead and documents in the form of title deeds as well in order to establish the ownership of the building and consequently whether or not the correct defendant is before the court.  I am therefore not able to find that a wrong defendant has been brought to court on the mere say so of the defendant without proof.  It is for those reasons again that I will dismiss the 2nd objectione in the special plea.

The special plea is accordingly dismissed with costs being in the cause.

Mathonsi-Ncube Law Chambers, plaintiff’s legal practitioners

Messrs Coghlan & Welsh defendant’s legal practitioners