Mohamed Zakariya Patel v Ismail Moosa Lunat

### Preamble
1
HB 196.19
HC 2489/19
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MOHAMED ZAKARIYA PATEL

Versus

ISMAIL MOOSA LUNAT

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 6& 12 DECEMBER 2019

Opposed Application

E Samukange, for the applicant

G Nyoni for the Respondent

MAKONESE J:		This is an application for Summary Judgment in terms of order 10 Rule 64 of the High Court Rules, 1971.  The application is opposed by the respondent.   Applicant contends that the respondent has no bona fide defence to his claims.  As is common with most debtors in this jurisdiction and beyond, the respondent has raised illusory defences, feigned coercion and seeks not to be bound by an acknowledgement of debt.

The facts giving rise to this application are largely common cause and not contested.  On the 11th of January 2019, the respondent acknowledged his indebtedness to the applicant in the sum of USD$ 384 177-00.  Respondent admits signing the acknowledgment of debt in the presence of a witness, Hetnesh Patel.  In terms of the acknowledgment of debt, the respondent renounced the benefits of all the legal exceptions, non cuasa debiti, non numerataepecuniae,error calculi, revision of accounts, no value received and any other exception which might or could be taken.  Respondent acknowledged that he was fully acquainted with the full meaning and effect of the instrument before appending his signature thereto.  The acknowledgment of debt provides that the document constitutes the entire contract between the parties and that no variations, stipulations, warranties or representations not signed by the parties had no force or effect.  The applicant has sued on the acknowledgment of debt.  In appropriate circumstances an acknowledgment of debt shall found a cause of action.  It is apparent from a close scrutiny of the acknowledgment of debt that the original debt was for USD$449 000.  This amount was reduced by the respondent leaving an unpaid balance of USD$ 384 177.  The respondent duly signed the document reflecting the reduction in the amount of the original debt.

As a result of the respondent’s failure to settle the debt, applicant instituted legal action under case number HC 762/19 on the 3rd of April 2019.  The summons and declaration was served on the respondent on 4th April 2019.  Respondent entered appearance to defend on 15th April 2019.  Respondent filed his plea on the 10th May 2019.  The respondent denied liability and avers in his plea as follows:

“It is not denied that the defendant signed the acknowledgment of debt as alleged by the plaintiff, however the same was not signed out of defendant’s own free will and volition.  Defendant signed the acknowledgment of debt after the plaintiff hadthreatened to sell properties belonging to companies owned by defendant’s relatives whose title deeds are in possession of the plaintiff. The said title deeds had gone intoplaintiff’s possession on completely unrelated circumstances.”( emphasis added)

The respondent further contends that the amounts claimed related to monies paid to third parties.  Respondent avers that he signed the acknowledgment of debt out of fear that plaintiff was going to sell properties whose title deeds he was holding on to.  In essence, the respondent avers that he was coerced into signing the acknowledgment of debt.

It is essential to observe that from the 11th of January 2019 up to the 3rd of April when the summons was served, the respondent made no protestations or complaints.  Respondent made no reports to the police or anywhere else about the coercion until demand was made for payment of the debt.  It is curious to note that in his plea, respondent cites undue pressure and coercion as his main defence.  In the opposing affidavit to the application for Summary Judgment, respondent makes a fresh assertion that in fact applicant wanted cash in United States Dollars in exchange for RTGS payments.  Respondent claims that he only acted as a middle man.  The amount claimed is equivalent to sums of money paid to several third parties.  The respondent alleges that this claim arose out of an alleged foreign currency deal that went horribly wrong.  For that reason, respondent avers, this court must, not be used to enforce an illegal transaction.

The requirements for a Summary Judgment application are well traversed in this jurisdiction.    The law is fairly settled.  In Ndebele v Local Authority Pension Fund HB 168-18 at page 5 of the cyclostyled judgment, MATHONSI J (as he then was) stated that:

“What an applicant for Summary judgment is required to do is set out in Rule 64 (2) and (3) which provide:

(2)	Acourt application in terms of sub rule (1) shall be supported by an affidavit made by the plaintiff or by any other person who can swear positively to the facts set out therein, verifying the cause of action and the amount claimed, if any, and stating that in his belief there is no bona fide defence to the action.

(3)	No deponents may attach to his affidavit filed in terms of sub rule (2) documents which verify the plaintiff’s cause of action or his belief that there is no bona fide defence to the action.

That is what an application for Summary Judgment does.”

See also: Chrisma v Stutchbury & Another 1973 (1) RLR 277 (SR) and Jena v Nechipote 1986 (1) ZLR 29(S).

In this matter what has been placed before the court is an acknowledgment of debt.  It is accepted by the respondent that he signed the acknowledgment of debt.  He alleges that he was coerced into signing the document.  The defence raised is cursory and curious.  Respondent alleges the following:

that the signature and the amount appearing on the document are not in issue.

that he was pressured as a result of threats that properties belonging to unnamed relatives would be sold.

the properties that would be sold are not disclosed.

respondent states that the title deeds belonging to his relatives had been surrendered to applicant in completely unrelated circumstances.

It seems to me that the respondent’s defence is clearly manufactured and designed to deceive the court.  I have already indicated that from the 11th January 2019 when the acknowledgment of debt was executed up to the filing of his plea on 10th May 2019, no step was taken by the respondent to challenge the acknowledgment of debt.  The respondent does not challenge the affidavit of Hetnesh Patel who witnessed the signing of the acknowledgment of debt.  The respondent has not obtained any affidavits from the alleged relatives to support the averment that applicant was in such   position to that he could sell their properties.  No list of the alleged properties has been placed before the court.

In similar circumstances, in Nyamanindi v Chivhurawa HB 236-16, MATHONSI J (as he then was) held page 3 as follows:

“Little wonder the court a quo was not impressed by that defence.  It reasoned thus:

“The acknowledgment was signed on 7 May 2015 and commissioned by a legal practitioner from Danziger & Partners, Patience Takayendesa.  Since then respondent (appellant therein) has neither reported the alleged threat to police nor approached the courts seeking the invalidation of the affidavit.  She does not say what will or has become of the fear of reprisals by the ZIMRA official now that she has decided to oppose the application and allege she was forced to sign.  Respondent therefore has not raised a plausible cause.  Her affidavit lacks clarity and completeness to enable the court determine whether the affidavit disclosed a bona fide defence.  Respondent cannot just sign a document and six months later when demand is made based on the document suddenly allege that she was forced to sign.

The caveat subscripto rule demands that she must be bound by her signature.”

I am unable to discern any misdirection in that reasoning.  The court a quo applied

the correct legal principles which  govern an application for summary judgment, and concluded correctly, in our view that the appellant had failed to show plausible defence.”

In this present case, the respondent is relying upon duress in order to impugn an acknowledgment of debt that he signed.  The author RH Christie, inBusiness Law inZimbabwe, 2nd Edition at page 83 states the position as follows:

“the threat must be of an imminent or inevitable evil, meaning that it cannot be 	averted otherwise than by agreeing to the contract.”

This cannot be said of the respondent.  He could have avoided signing the agreement.  The nature of the coercion is vague and remote.  The threatened sale of properties belonging to respondent’s relatives sounds improbable and utterly ridiculous.  It is difficult to comprehend how the applicant could effect of the sale of properties belonging to third parties.  Respondent asserts that the title deeds were held by applicant for entirely separate transactions.  The allegation of threats and coercion is clearly illusory.

In Kingstons LTD v LD Ineson (PVT) LTD2006 (1) ZLR 451 (S) at 458 F-G, ZIYAMBIJA remarked as follows:

“Not every defence raised by a defendant will succeed in defeating plaintiff’s claim for summary judgment.  Thus what the defendant must do is to raise a bona fide defence – a plausible case – with sufficient clarity and completeness to enable the court to determine whether the affidavit discloses a bona fide defence.  He must allege facts which if established would entitle him to succeed.”(emphasis added)

Mr Samkange, appearing for the applicant urged the court to enter summary judgment and reiterated the fact that an acknowledgment of debt may found a cause of action.  For that proposition he relied on the case of Rural Electrification Fund v Lomagundi Poles (Pvt) Ltd 2016 (1) ZLR 403 (H)

Advocate G Nyoni, appearing for the respondent conceded that an acknowledgment of debt may indeed found a cause of action in appropriate circumstances.  He however invited the court to look behind the document which he argued was based on an alleged illegality and duress.  He went further to argue that there was no need for the applicant to approach the matter with haste.  He contended that the respondent has raised a bona fide defence and the matter should proceed to trial.

There can be no doubt that the acknowledgment of debt in this matter is the exclusive memorial of the transaction between the parties.  The signed document has not been challenged in court by the respondent.  The document contains a “whole contract” clause.  This court is being invited to impugn the document on the basis of a defence that is raised for the first time after a period of five months from the execution of such document, and when demand for payment is made.  Curiously, the respondent has not taken the court into its confidence by placing before the court any supporting affidavits from persons, whose property was under threat of sale by the applicant.  The court will not take every defence as plausible unless it is consistent with all the facts surrounding the execution of an  acknowledgement of debt. An acknowledgement of debt is what it is. It is an indication by the debtor that he owes the creditor a specific sum of money.   Business transactions would be seriously impended if valid legal contracts were to be unenforceable on tenuous defences being raised by defaulting debtors.  The maxim caveat subscriptomust be applied on the facts of this matter.

In the circumstances, and accordingly I would make the following order:

1.	Summary Judgment be and is hereby entered in favour of the applicant for payment of the sum of (USD) Three Hundred and Eighty Four Thousand one hundred and seventy seven dollars (US$384 177) or its equivalent at the

prevailing interbank rate.

2.	Respondent to pay the costs of suit.

Samukange Hungwe Attorneys, applicant’s legal practitioners

Venturas And Samukange c/o Dube-Banda Nzarayapenga & Partners, respondent’s legal practitioners