Al Shams Global BVI Limited v Equity Properties (Pvt) Ltd

### Preamble
1
HH 237-13
HC 13977/12 &
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AL SHAMS GLOBAL BVI LIMITED

versus

EQUITY PROPERTIES (PVT) LTD

HIGH COURT OF ZIMBABWE

ZHOU J

HARARE, 13 February 2013 & 29 July 2013

Unopposed Matter

T. Mpofu for the plaintiff

A. P. de Bourbon for the defendant

ZHOU J:  There are two matters in respect of which the applicant instituted proceedings for provisional sentence against the defendant.  In the first matter, Case No. HC 13730/12, the summons for provisional sentence was issued on 28 November 2012.  The second summons, in Case No. HC 13977/12, was issued on 5 December 2012.

In Case No. HC13730/12 the plaintiff’s claim for provisional sentence in a sum of US$200 000.00 is founded upon a banker’s acceptance number LN12/0112 executed by the defendant in favour of Interfin Banking Corporation Limited.  According to the summons “the plaintiff purchased, paid for and took delivery of the  banker’s acceptance from Interfin Banking Corporation Limited on 12 April 2012, but it was dishonoured by that bank when it was presented for payment. In HC 13977/12 the claim is for US$300 000-00.  The defendant filed opposing papers in both cases.  The plaintiff filed answering affidavits in the two cases.  The respondent filed heads of argument in Case No. HC 13977/12.  The two cases were set down on the unopposed roll on 19 December 2012.  The result sheet for Case No. 13730/12 shows that the matter was removed from the roll while that for HC13977/12 states that the matter was postponed sine die.  The matters were again set down for hearing on 30 January 2013.  The result sheets show that the two matters were struck off the roll.  In both records the Learned Judge commented that the two matters were opposed and should be referred to the opposed roll, as arguable defences were raised in the opposing papers.

Somehow the matters still found their way to the unopposed roll on 13 February 2013.  Both Mr Mpofu for the plaintiff and Mr de Bourbon for the defendant made submissions on the merits.

Of late there are many contested cases for provisional sentence which are set down on the unopposed roll.

Order 4 of the rules of this court deals with claims for provisional sentence.  A summons for provisional sentence is issued where a plaintiff is the holder of a valid acknowledgment in writing of a debt or a liquid document.  The summonses may be in one or the other of two forms- Form No. 4 and Form No.5.  The rules prescribe the contents of a summons for provisional sentence.  Among other things, the summons must “call upon the defendant to satisfy the plaintiff’s claim, or in default to appear before the court at the hour and on the day and at the place stated in the summons to show why he has not done so, and to acknowledge or deny the signature to the said liquid document or the validity of the said claim”.  Rule 22 provides, inter alia, that the “provisions of rules 10, 11, 14, 15, 16, 17, 18 and 19 shall be observed in a summons for provisional sentence”.  Rule 25(1) provides that a defendant cited in a provisional summons may file a notice of opposition and supporting affidavit prior to the date stated in the summons.  I have highlighted the word “may” as it shows that the provision is not couched in peremptory terms.  It therefore means that the defendant has an election as regards whether or not to file a notice of opposition and opposing affidavit.  Subrule (2) of r 25 provides that Order 32 shall apply, mutatis mutandis, to the service of a notice of opposition and the filing and service of answering or further affidavits which may be filed by the parties subsequent to the filing of the opposing affidavit.

The issue of the fate of opposed provisional sentences has previously arisen in this court.  In the case of Zimbank v Interfin Merchant Bank of Zimbabwe Ltd 2005 (1) ZLR 114(H) at 116F-117A MAKARAU J (as she then was) stated the following:

“The position as to what happens when opposition to provisional sentence is manifested in the form of opposing affidavits or the defendant appearing on the floor of the court has thus become blurred through the disuse of the procedure.  It is therefore, in my view, necessary to recall that the procedure of provisional sentence allows a creditor armed with a liquid document, to obtain payment of the debt without having to wait for the final determination of the dispute between the parties.  Whilst a speedy remedy, provisional sentence is an extra-ordinary remedy based on the presumption of indebtedness created by the liquid document.  It is a brisk and robust remedy granted by the court in appropriate cases, on the date of the hearing endorsed on the face of the summons, after the court has satisfied itself that the defendant has no probability of success in the principal case.  Although opposed, the matter cannot wait to be determined on the opposed roll in accordance with the provisions of Order 32 of the High Court Rules 1971, although the filing of further affidavits after the opposing affidavit are to be in terms of the provisions of Order 32.

The above is my view in answer to the second argument raised by Mrs Zindi that the matter be referred to the opposed roll.  It has always been the practice of this court to determine provisional sentence matters on the date appearing on the face of the summons.  Issues of convenience to the court, which is essentially sitting as an unopposed court, can effectively be overcome by the presiding judge standing the matter down to the end of the roll for counsel to make their submission to court.  I have not been able to conceive of any interpretation of the rules of this court that would tend to suggest that this is not the proper way of proceeding.  I have further failed to conceive of any possible reason why the practice of this court should be changed to refer contested provisional sentences to the opposed roll as that course will effectively rob the ‘quick’ remedy of its efficacy and thereby weaken the whole machinery of provisional sentence.”

It seems to me, however, that the rules do have provision as regards the setting down of cases for provisional sentence, at least in relation to the unopposed roll.  Order 32 r 223(1)(a) provides for the setting down of uncontested cases for provisional sentence on the roll for unopposed matters. There is no provision in the rules for contested cases for provisional sentence to be set down on the same roll.  The setting down of contested cases for provisional sentence on the “unopposed” roll is, therefore, not in accordance with the provisions of the Rules.  I am mindful of the fact that the issue of the stage at which the court (and, indeed, the plaintiff) becomes aware that a matter for provisional sentence is opposed presents difficulties. That is so because Forms No. 4 and 5 make no provision for the dies induciae within which the defendant must file a notice of opposition and opposing affidavits other than that it should be before the date of the hearing inserted in the summons.  Yet in the same Forms the defendant is warned:  “If you do not take the action described in the previous paragraph, a provisional sentence may be given against you.”  The three courses of action available to the defendant are to satisfy the claim or to file opposing affidavits or to appear in court on the date stated in the summons to admit or deny the claim.  Where a defendant chooses to appear in court on the date of the hearing to deny liability then the court only becomes aware that the matter is contested on that date.

In the two cases before me opposing papers were filed prior to the date of the hearing.  Thus, the plaintiff knew then that in the two matters provisional sentence was being contested.  The matters should not, therefore, have been set down on the unopposed roll.  Contested cases for provisional sentence have previously been heard as opposed applications as shown by some judgments of this court. See Mavindidze & Anor v Mukonoweshuro 2010 (1) ZLR 191(H);  Sibanda v Mushapaidze 2010 (1) ZLR 216(H).  The attention of litigants is therefore directed to the provisions of the Rules regarding the setting down of contested cases for provisional sentence.

In the instant cases I heard argument on the merits albeit the plaintiff had not filed heads of argument, principally because the matter was set down on the unopposed roll.  In opposition to the claim for provisional sentence the defendant contends that the plaintiff is not a holder of the instruments upon which the claims are founded.  The plaintiff seems to believe that it became a holder of the bankers’ acceptances by the mere fact of having paid for and taken delivery of the instruments. That is not necessarily so. Delivery of the instrument without more merely makes the plaintiff a possessor of the instrument.  Since the bankers acceptances in casu were not bearer instruments the plaintiff did not necessarily become the holder thereof by merely taking physical delivery of them without further evidence that the instruments were negotiated in its favour.  Ex facie the instruments, Interfin Banking Corporation is the holder.  In the premises, this to me is not an appropriate case for provisional sentence to be granted.

In the result, it is ordered that:

Provisional sentence be and is hereby refused.

The case is hereby ordered to stand over for trial and the summons shall stand as the summons in an ordinary action.

The defendant shall enter appearance to defend within five days of the date of this judgment.

The costs shall be costs in the cause.

Atherstone & Cook, plaintiff’s legal practitioners

Gill Godlonton & Gerrans, defendant’s legal practitioners