Jackson Muguti v Wilson Sunduza

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JACKSON MUGUTI
versus
WILSON SUNDUZA


HIGH COURT OF ZIMBABWE
MUSAKWA J
HARARE, 7 AND 8 FEBRUARY 2011


CIVIL TRIAL

Plaintiff in person

H. Mukonoweshuro, for defendant

        MUSAKWA J: At the close of plaintiff’s case in a relatively short trial defendant’s
counsel applied for absolution from the instance plus costs of suit on a legal practitioner and
client scale.

         The plaintiff issued summons claiming a sum of US $1 315, interest at the prescribed
rate on the principal sum from the date of accident to the date of final payment, collection
commission at the rate of 30% plus costs of suit. At the commencement of trial the plaintiff had
sought not to lead any evidence on the assumption that there were no triable issues. This is
despite the fact that at the pre-trial conference he agreed that the issues to be referred to trial
were those outlined in the defendant’s pre-trial conference minute. In any event, there was no
way the plaintiff could have sought to prove the claim for damages without going to trial.

    The issues referred to trial were as follows-

    1. Whether or not the plaintiff has locus standi to sue the defendant.

    2. Liability

    3. Quantum

    4. Whether or not Cell Insurance Company paid out the sum of US $1 315,00 to the insured
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   5. Whether or not the plaintiff is entitled to collection costs and if so at what scale/rate.

   The plaintiff testified that on 29 November 2009 a Toyota Hiace motor vehicle, with
registration number ABJ 4615 was involved in an accident. The motor vehicle belonged to
Vhungu Rural District Council. The accident was caused by the defendant’s negligence in that he
failed to keep a proper lookout and drove without due care and attention. As a result the motor
vehicle was extensively damaged and had to undergo repairs. The costs of repairs amounted to
US $1 315. The insurers of Vhungu Rural District Council indemnified it in the sum of US$1
170, 00. The defendant paid a deposit fine.

   The plaintiff further testified that he operates a debt collection company called Jacynth and
Associates. He did not explain whether it is incorporated. Cell Insurance entered into a cession
agreement which resulted in the plaintiff taking over the claim against the defendant. It must be
noted that the plaintiff did not seek to produce any documentary evidence like the deed of
cession, the assessor’s report and the quotations from the vehicle repairers. It seems the plaintiff
was relying on the assumption that the documents already form part of the record by virtue of the
discovery schedule. This is largely attributable to plaintiff’s misconception of the law as will
become apparent when I deal with the application for absolution.

   In seeking absolution from the instance Mr. Mukonoweshuro submitted that the plaintiff
lacks locus standi. Citing Susan Scott in the The Law of Cession, second edition he submitted
that there was no subrogation as claimed by the plaintiff. Thus if there had been subrogation the
present proceedings would have been instituted in the insured’s name. In addition, if the insured
had ceded its rights to Cell Insurance, the latter would have been able to sue the defendant in its
name. However, evidence should have been led that there was cession of the claim from the
insured to the insurer.

   Mr. Mukonoweshuro also submitted that the plaintiff did not lead any evidence proving the
defendant’s liability. The same applies to the quantum of damages claimed. The plaintiff only
made reference to the assessor’s report and quotations from garages without producing the
documents. In any case it is not like the documents in question could explain themselves. The
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plaintiff could not have explained the documents himself in the absence of the people who
compiled them.

    On the other hand the plaintiff submitted that since Vhungu Rural District Council did not
cede its right of action to Cell Insurance, the latter were entitled to recover what they paid out in
indemnifying Vhungu Rural District Council from the defendant on the basis of the principle of
subrogation. He made reference to The South African Law of Insurance by Gordon & Getz.

    The law applicable in an application for absolution from the instance is well settled. As was
stated by GUBBAY CJ in Walker v Industrial Equity Ltd 1995 (1) ZLR 87 (SC) at p 94-

“The test to be applied in deciding an application for absolution from the instance is well settled in this jurisdiction.
It was reiterated recently by this court in United Air Carriers (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S) in these
terms:

         "A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence
upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for
him."

         On the other hand Gordon & Getz in The South African Law of Insurance, fourth edition
state at p 257-

“Subrogation means the substitution of one person for another so that the person substituted or subrogated succeeds
to the rights of the person whose place he takes. It expresses the insurer’s right to be placed in the insured’s position
so as to be entitled to the advantage of all the latter’s rights and remedies against third parties.”

The same authors state that there are two procedures by which an insurer may seek to recover
damages attributable to a third party. In the absence of a formal assignment of the right of action
by the insured, the insurer who has paid out the loss must sue the third party in the insured’s
name. In the absence of subrogation the insured must cede all rights of action against a third
party to the insurer in which case the insurer sues the third party in its name.

         Applying the above principles, it is evident in the present case that there was no
subrogation. If there was subrogation the present action would have been in the name of Vhungu
Rural District Council. On the other hand, it has not been shown that Vhungu Rural District
Council ceded its right of action against the defendant to the plaintiff. It is immaterial that Cell
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Insurance purported to cede its right of action to the plaintiff. As Mr. Mukonoweshuro submitted,
Cell Insurance could not cede rights it did not have.

       Even a look at the letter of cession leaves one doubting its authenticity. It is not signed on
behalf of Cell Insurance since it is trite that a corporate entity has no physical attributes of a
natural person. Even the diction used in drafting the document is so poor that it can not be
associated with an insurance company. Since the plaintiff was all along alive to the challenge to
this document, he should have called a witness from that company.

       It therefore follows that a court applying its mind reasonably to the evidence lead before
this court might not find for the plaintiff. On the issue of costs, it is clear from the defendant’s
pleadings that the plaintiff had ample opportunity to lead evidence to prove all the issues raised
but chose not to do so. He could as well have withdrawn the matter at the earliest opportunity
and saved costs but he doggedly pursued the suit which was fraught with the legal deficiencies
that have been highlighted. Even the amount of damages claimed falls within the jurisdiction of
the magistrates’ court. In such a situation it would be proper that costs be awarded against the
defendant on a higher scale.

   In the result it is ordered that-

   a) Absolution from the instance be and is hereby granted.

   b) The plaintiff shall pay the defendant’s costs on a legal practitioner and client scale.




H. Mukonoweshuro & Partners, defendant’s legal practitioners.