Chirumhanzi Rural District Council v Trvestroom Farm

### Preamble
1
HH 277-2012
HC 389/11
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CHIRUMHANZI RURAL DISTRICT COUNCIL

versus

TRVESTROOM FARM

HIGH COURT OF ZIMBABWE

KUDYA J

HARARE, 29 June 2012

Opposed Application

RF Mushoriwa, for the excipient/defendant

H Mutasa, for the respondent/plaintiff

KUDYA J:  On 10 May 2011 the defendant excepted to the citation of a non-existent entity by the plaintiff in action proceedings in the present matter.

The plaintiff issued summons out of this court on 14 January 2011 in HC 389/11 seeking US$5 364-00 in unpaid levies, interest at the prescribed rate and costs of suit. An appearance to defend was filed on 14 February 2011. Further particulars requested on 2 March were furnished on 7 April 2011. Amongst the particulars that the plaintiff declined to provide was one on the legal status of the defendant. The exception was served on the plaintiff’s legal practitioners on 10 May. In compliance with Order 32 r 238 (1a), the defendant filed heads of argument and applied for set down of the matter on 27 May 2011. The plaintiff filed its heads on 1 June 2011.

On the face of the summons and declaration the defendant is cited as TRVESTROOM FARM. In para 2 of the declaration the following averment is made:

“2.	Defendant is Trvestroom Farm, a company incorporated in accordance with the laws of Zimbabwe whose address of service is Trvestroom Farm, Mvuma.”

A summons cites a person and not an object. A summons that fails to cite a person is void. In JDM Agro-consult & Marketing v Editor, The Herald & Anor 2007 (2) ZLR 71 (H) at 75E GOWORA J,  as she then was, relied on the authority of Gariya Safaris (Pvt) Ltd v van Wyk 1996 (2) ZLR 246 (H) at 252G where MALABA J, as he then was, stated:

“A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the names written in the summons as being those of the defendant, the summons is null and void ab initio.”

It is apparent that the plaintiff sued a non-existent entity. Its summons is void. It is not capable of amendment.

Despite the attachment of a document from the registrar of companies indicating the none existence of the defendant, I am satisfied that the accepted facts on the face of the summons form the basis of the present application. The basic differentiation between a plea in abatement where evidence may be led and an exception where evidence may not be led that was outlined in Edward v Woodnut NO 1968 (2) RLR 293 (GD) at 295I-296A does not apply. Rather, the definition and purpose of an exception set out by GUBBAY CJ in City of Harare v D & P Investments (Pvt) Ltd & Anor 1992 (2) ZLR 254 (SC) at 257 B -C  applies in the present matter.  He stated that:

“An exception is plainly an "answer to the plaintiff's claim" or, for that matter, to the defence raised. Its main purpose is to obtain a speedy decision upon a point of law apparent on the face of the pleading attacked and so settle the dispute in the most economical manner by having the faulty pleading set aside.”

The exception is well taken and is accordingly upheld.

Had the plaintiff properly exercised its mind, it would have realised that a company carries the appellation (Private) Limited or Limited. The plaintiff put the defendant out of pocket in raising the present issues. It must pay for the costs incurred by the defendant on the higher scale.

Accordingly, the plaintiff’s case in HC 389/2011 is dismissed with costs on the scale of legal practitioner and client.

Mawere & Sibanda, excipient/defendant’s legal practitioners

Gill Godlonton & Gerrans, respondent/ plaintiff’s legal practitioners