Construction Resources Africa v Central African Building & Construction Company (Private) Limited t/a Central African Building and Onstruction and Paul Christopher Paul and Jose Viera and Luis Viera

### Preamble
1
HH 504-25
HC 3792/24
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CONSTRUCTION RESOURCES AFRICA

versus

CENTRAL AFRICAN BUILDING & CONSTRUCTION

COMPANY (PRIVATE) LIMITED t/a CENTRAL

AFRICAN BUILDING AND ONSTRUCTION

and

PAUL CHRISTOPHER PAUL

and

JOSE VIERA

and

LUIS VIERA

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE; 28 November 2024 and 5 September 2025

Application for default judgment

S M Hashiti, for the plaintiff

T S Manjengwa, for the 1st and 2nd defendant

CHITAPI J:	The parties appear as cited in the heading to this summons cause.  The plaintiff and the first defendant are duly incorporated companies according to the laws of Zimbabwe and carry on business in Zimbabwe.  The second defendant is a male adult who purported to represent the first defendant as its director and also purported to be a representative of third and fourth defendants.  The third and fourth defendants are respectively son and father.  They are peregrines currently resident in Australia.  They are alleged to be the former owners and directors of the first defendant.

This matter was enrolled on the unopposed roll for default judgment before Mhuri J on 17 October, 2024.  The learned judge made an order as follows:-

“The matter be and is hereby removed from the roll of unopposed matters and referred to the opposed roll.”

There were no comments made on record to indicate why the matter was removed from the roll.  The order recorded that Advocate S.M. Hashiti represented the plaintiff and Mr T.S. Manjengwa represented the first and second defendants.  It is not noted on the order whether Mr Manjengwa was properly before the court as that the first and second defendants had not entered appearance to defend the matter.  There was no apparent  reason on which  counsel could legally represent the first and second defendant.  The referral to the opposed roll did not have directions on what the reason for treating the matter as opposed was.  I treated the matter as unopposed.  Advocate Hashiti prayed for judgment and submitted that the plaintiff’s papers were in order and that defendants had not answered the summons.  In any event the application for default judgment was made against the third and fourth defendants.

To place the matter into context, the plaintiff caused the issue of summons against all the defendants jointly and severally the one paying the other to be absolved in respect of five claims as follows:

1.	Claim 1

(a) Payment of the sum of US$260 000.00 as compensation for improvements made on the      first defendants property called 8 Connet Close, Mount Pleasant, Harare.

(b)	Payment of the sum of US$36 000.00 as compensation for improvements effected on   the first defendant’s property called 8 Whiteswap, Msasa, Harare.

2.	Claim 2

(a)  Payment of US$281 000.00 by third and fourth defendants being the refund of the purchase price made by the plaintiff to the first defendant which the second defendant acknowledged in criminal proceedings Case No. CRB R715/10 wherein he testified as director of the first defendant.

3.	Claim 3

(b) Payment of US$125 000.00 being refund of rentals paid to the second to fourth defendants by the plaintiff’s tenant at 8 Whitesway Msasa for the period 1 December 2004 up to and including March, 2012 at US$1250.00 per month.

4.	Claim 4

Payment of US$4 013 382.00 being loss of net revenue which could have been accrued to the plaintiff calculated as:-

US$3 874 429 aborted contract with Chinhoyi University of Technology because of unlawful interference by second to fourth defendants.

US$139 248.00 arising from unlawful interference by the second to fourth defendants in a contract to build flats for ZIMRA in Beitbridge which was aborted because of the interference.

US$3 101 429.00 due to ZIMRA to the plaintiff for the construction works exceeded at Beitbridge which payment was withheld because of the interference by the second to fourth defendants.

5.	Claim 5 – Claim for

(a)	a declaration to the effect that the plaintiff retains a right of retention against the defendants in respect of the two properties in issue in lieu of the claimed damages.

(b) 	a declaration that the defendants have been unjustly enriched in the amounts claimed by the plaintiff.

The declaration is long and circuitous. It reads more like a founding affidavit in detail and pleads evidence in several instances.  The declaration gives a background and history of the claim.  This is not necessary.  The plaintiff’s claim at the end of the day is based upon an alleged  unjust enrichment of the defendants.  From the declaration, there were sale agreements between the third and fourth defendants of the business of the first defendant to the plaintiff as a going concern including goodwill.  There was a further purchase by the plaintiff from the first defendant, three immovable properties called Stand 272 Beverly East, Township of Stand 361 Beverly East Township for US$296 000.00, Stand 195 Beverly East of Township 3 of Stand 218 Beverly east Township for US$97 000.00 and Stand 8 Connet Rise Township 2 of Comet Rise Estate A for US$88 000.00.  The plaintiffs’ summons and declaration are inconsistent in relation to the property descriptions.  The summons refer to properties called “Number 8 Comet Close, Mount Pleasant Harare” and “Number 8 Whitesway, Msasa, Harare.”  A declaration which in terms of rule 13 of the rules of court is annexed to the summons must contain material facts relied upon by the plaintiff to support the plaintiffs’ claim.  It follows that the averments made in the declaration must be consistent with the “true and concise statement of the nature and extent and grounds of the cause of action and of the relief or remedies sought in the action” as provided in terms of rule 12(5)(b) of the Court Rules.

The Deed of Sale attached to the summons and declaration as annexure B described three properties as:-

Certain piece of land situated in the District of Salisbury, Stand 272 measuring 3.145 square metres (8 Whites Way, Msasa, Harare) and held under Deed of Transfer No. 6884/92 together with the permanent improvements thereon valued at US 296 000.00 (Two Hundred and Ninety Six Thousand United States Dollars).

Certain piece of land situated in the District of Salisbury, Stand No. 195 measuring 4,794 square metres (8 Lorey Close, Msasa, Harare) and held under Deed of Transfer No. 05391/94 value at US$97 000.00 (Ninety Seven Thousand United States Dollars)

Certain piece of land situated in the District of Salisbury, Stand No. 8 measuring 8.790 square metres, (8 Comet Close, Mount Pleasant, Harare) and held under Deed of Transfer No. 3404/78 valued at US$88 000.00 (Eight Eight Thousand United States Dollars).

These glaring inconsistences in the plaintiff’s summons, declaration and sale agreement were not explained in the affidavit of evidence.  It is not the duty of the court to do a reconciliation of a litigant’s papers which are in contest, inconsistent  or incongruent with each other.  The applicants papers therefore do not show with clarity the description of the properties which form the subject matter of claims as the descriptions in the summons, declaration, deed of sale and draft order are inconsistent.

These are however claims made for a declaratur.  The cause for the declaratur  arises upon judgments which the court would grant in relation to claims 1 – 4.  These will not be granted because of the descriptive inconsistences in the properties in the court processes.  The plaintiff’s papers are consequently not in order in that respect.

There is a further reason for denying the plaintiff the relief sought.  The issue of service of summons was not properly settled.  The summons provide the address for the third and fourth defendants as 3 Pascoe Avenue, Belgravia, Harare.  In paragraphs 4 and 5 of the declaration, the plaintiff pleaded that the third and fourth defendants were peregrines “currently residing in Australia.”  In the declaration the plaintiff averred that the third and fourth defendants address for service was that of Wintertons, their legal practitioners of 3 Pascoe Road, Harare.  The Sheriff’s return of service shows however that the summons and declaration was served on the third and fourth defendants at 8 Whiteway Msasa Harare, an address inconsistent with that stated in the summons and declaration.  The manner of service was described in the return of service as:

“Served by affixing to outer principal door after unsuccessful diligent search: place of residence/business.”

Since the third and fourth respondents were by the plaintiff’s own averment, resident in Australia, it did not make sense that the Sheriff be directed to a place of residence and business to the address where the Sheriff purported to effect service.

I also considered the agreements of sale to check whether they provide services of process relating to disputes arising from them.  In the first agreement “Annexure A” and “B” relating to the sale to the first respondent, Clause 14 provided for delivery at the registered addresses of the parties.  The parties are the plaintiff and the first defendant.  It is the same in the second agreement, annexure B.  The third and fourth defendants are not parties to this agreement.  There was no basis pleaded for serving process on the peregrine defendants, third and fourth defendants at the address where the Sheriff effected source of the process.  There was therefore no proper service of summons and declaration on the third and fourth defendants.  The plaintiff papers for this further reason are not in order and default judgment cannot be granted.

Before I issue the appropriate order in this case, I need to comment on a peripheral matter concerning the appearance of Mr Manjengwa.  Advocate Hashiti submitted that Mr Manjengwa could not get the audience of the court in the matter because the first and second defendants whom he represented were not party to the application for default judgment.  Despite his protestations, I ruled that Mr Manjengwa had no locus standi for purposes of the application before me to address the court.  No relief was being sought from his clients and they did not stand in jeopardy of their rights and interests needing protection.  Mr Manjengwa visibly unhappy with my decision to refuse him audience reluctantly left the bar after asking to be excused.  He proceeded to write a letter to the Registrar requesting for written reasons why he was denied audience.  These are the reasons why audience was denied to him, There was nothing on the record in any event to indicate that the first and second respondents had filed any process in answer to the summons and declaration.  Counsel did not appear representing the third and fourth defendants.  Counsel of Mr Manjenwa’s security and experience must have been aware and appreciated that he could not just stand up to speak from the bar in a default judgment matter unless representing the parties involved in the default judgment application.  Limited audience in such a case would be granted to a barred party but only to the extent of addressing the court on the bar or seeking a postponement to file an application to uplift bar. Rule 39 (4) (b) of this court’s rules is clear. It says

“while a bar is in operation

..........................................

The party barred shall not be permitted to appear personally or by legal practitioner in any judgment proceedings in the action or suit.”

Mr Manjengwa clearly could not get the court’s audience.

In conclusion, the plaintiffs’ papers are in disorder and the relief of default judgment is denied.

IT IS ORDERED THAT:

The application be and is hereby struck off the roll.

Chitapi J:..................................................

Manase & Manase, Plaintiff’s Legal Practitioners