Michael Nelson Nyabanga v Assetfin (Pvt) Ltd and Zimbos (Pvt) Ltd and Sheriff of Zimbabwe N.O. and Registrar of Deeds N.O.

### Preamble
1
HH 95-21
HC 2579/20
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MICHAEL NELSON NYABANGA

versus

ASSETFIN (PVT) LTD

and

ZIMBOS (PVT) LTD

and

SHERIFF OF ZIMBABWE N.O.

and

REGISTRAR OF DEEDS N.O.

HIGH COURT OF ZIMBABWE

MUSITHU J

HARARE, 4 November 2020 & 9 March 2021

Opposed Application- Exception

Mr R Moyo, for the 1st and 2nd defendants

Mr E Donzvambeva, for the plaintiff

MUSITHU J:

INTRODUCTION

On 27 May 2020 plaintiff issued summons against defendants seeking relief, which appears ex facie the summons as follows:

A compelling order for the transfer of rights for the transfer of rights, interest and title of a certain piece of land called stand number 410, Lot 2A,Bluffhill Township, Harare measuring about 1000m2 held under Deed of Transfer number 0003088/98 from the 1st and 2nd Defendant into Plaintiff’s name with the 3rd Defendant being authorized to sign all necessary documents on behalf of the 1st and 2nd Defendant in the event of failure or default to sign, thereafter the 4th Defendant being authorized to register the transfer in favour of the Plaintiff.

Costs of suit at the legal practitioners and client scale.

Following the service of the summons and declaration, 1st and 2nd defendants’ lawyers wrote to plaintiff’s legal practitioners raising three complaints by way of a letter of 8 June 2020. The complaints were: that the summons were not in compliance with the Order 3 Rule 11(c) of the Rules of Court (the Rules); the relief sought in the summons and declaration was similar to that sought in an earlier matter involving the same parties under HC 2106/19. That matter was withdrawn. The final complaint was that in HC 2106/19, plaintiff accepted that it was not claiming transfer of the property that it now sought under the present action. Plaintiff’s lawyers responded to the complaint insisting the summons as read with the declaration were not defective. The disaccord led to the filing of 1st and 2nd defendants’ exception on 01 September 2020. They contend that no cause of action was established against both defendants. Accordingly, they seek the dismissal of the claim with costs.

FACTUAL BACKGROUND

The background facts upon which the claim is grounded are as follows. Plaintiff entered into an agreement of sale with 1st defendant in respect of Stand number 410, Lot 2A, Blufhill Township, Harare measuring 1000m2 held under Deed of Transfer (DT) number 0003088/98 (the property). According to the plaintiff, whilst the 1st defendant was listed as seller, the property is registered under 2nd defendant’s name at the 4th defendant’s offices. At the material time, some, if not all of the 1st defendant’s directors were also directors of the 2nd defendant. The 1st defendant had also allegedly acted for the 2nd defendant in respect of the same property at some point. It was for that reason that 1st and 2nd defendants were sued jointly and severally.

1st and 2nd defendants breached the agreement by failing to render transfer to the plaintiff despite payment of the full purchase price. The breach was not remedied regardless of several follow ups. This was in essence, the pith of the plaintiff’s claim.

As stated already, 1st and 2nd defendants’ letter of 8 June 2020 raised three complaints. The essence of the complaints was as follows. Firstly, the summons did not state the nature, extent and grounds of the cause of action. The summons merely stated the relief sought by the plaintiff. That violated Order 3 Rule 11(c) of the Rules. That defect was not cured by the filing of a declaration which was in itself a stand-alone pleading. The fact that full details were contained in a declaration did not take away the need to comply with the rules. The second complaint pertained to the relief sought by the plaintiff. In HC 2106/19, the plaintiff allegedly accepted that the property he wanted transferred to him was owned by 2nd defendant herein. The claim against 1st defendant for the transfer of the same property was accordingly incompetent.

The third complaint was that in HC 2106/19, plaintiff acknowledged that it was not seeking transfer of the immovable property held under DT 3088/98 measuring 107, 0424 hectares. Rather, plaintiff was entitled to 1000m2 of Stand 410, Lot 2A, Blufhill Township, Harare.  What was clear was that plaintiff was not seeking transfer of the property held under DT No. 3088/98, but a deduction therefrom. 1st and 2nd defendants’ demanded a withdrawal of the summons and a tender of costs by 10 June 2020.

Plaintiff was defiant. A summons was read together with the declaration. It was impossible to state all the facts on the face of the summons. To quote the plaintiff’s response, “what is required is to set out a statement upon which a party becomes aware of the matter brought against it. We believe that on the face of it, the Defendants can very much be aware of the matter against them. Therefore, as the Declaration fully sets out the facts, the Summons cannot be said to be fatally defective.” On the second complaint, plaintiff averred that 1st and 2nd defendants were being sued severally because at all material times, “one or more directors of the 1st Defendant acted on behalf of the 2nd Defendant as it was a single entity. Therefore, the actions of the 1st Defendant are reflective on the 2nd Defendant and even though the deed of transfer is registered in 2nd Defendant’s name. 1st Defendant’s actions show that it either itself or 2nd Defendant can transfer/deduct the property in issue into our client’s name. Consequently, the relief sought against the 1st Defendant is competent at law.”(Underlining for emphasis). Plaintiff considered the third complaint a matter of semantics and diction. What was clear as daylight was that plaintiff was entitled to have the property registered in its name.

On 10 June 2020, 1st and 2nd defendants’ caused to be issued and filed a request for further particulars which spanned a good four pages. The request was detailed. The response was rather terse. In one page the plaintiff was done. Most of the requests were dismissed as triable issues, and therefore premature to be supplied at this stage. Alternatively, sufficient information had been furnished to enable defendants to plead.

THE SUBMISSIONS

Mr Moyo for the defendants submitted that on 11 September 2019, plaintiff erroneously obtained a default judgment under HC 2106/19. The order was rescinded by consent on 10 February 2020. The rescission of the order was informed by two main reasons which plaintiff accepted. Firstly, the property in dispute is owned by 2nd defendant, who was not even a party under HC 2106/19. Secondly the order entitled the plaintiff to take transfer of land held under DT 0003088/98, which is 107,0424 hectares in extent. The agreement between plaintiff and 1st defendant referred to a property which is 1000m2 in extent. Plaintiff was also informed that his contract with 1st defendant was entered into by strangers unknown to 1st defendant. 1st defendant was prepared to assist plaintiff pursue his claims against the culprits. That prompted plaintiff to withdraw his claim under HC 2106/19. In the current proceedings, plaintiff was pursuing the same incompetent claim he withdrew earlier.

In the heads of argument defendants aver that plaintiff’s claim was premised on an agreement consummated with 1st defendant. He however admitted that 1st defendant did not own the property. The property was owned by 2nd defendant. Plaintiff had no agreement with 2nd defendant. Plaintiff attempted to explain this somewhat unorthodox arrangement in paragraph 7 of his declaration. He said:

“7.	The Plaintiff entered into an agreement of sale with the 1st Defendant for stand number 410, Lot 2A, Bluffhill Township, Harare, as described above. Whilst 1st Defendant was listed as the seller, the property is registered under the 2nd Defendant with the 3rd Defendant’s office. At the material time, some or all of the directors of the 1st Defendant were also directors of the 2nd Defendant. The 1st Defendant has at times acted for the 2nd Defendant in relation to the stand in question. Consequently, the Plaintiff is suing 1st and 2nd Defendant jointly and severally.”

1st defendant contends that based on these allegations, there was no claim cognizable at law. This is because the claim was based in contract, yet the property in which transfer of rights was sought was not registered in 1st defendant’s name. It was not competent for the 1st defendant to pass title in a property that it did not own. It was further submitted that 1st defendant would only be liable to pass title if it had acted as an agent for 2nd defendant. The court was referred to the case of De Villiers v James. In casu, plaintiff did not allege the existence of an agency relationship between 1st and 2nd defendants. To establish agency, the plaintiff needed to show: that 1st defendant was 2nd defendant’s agent; for the purposes of the sale; and had authority to pass title to the plaintiff. It was submitted that if 1st defendant was an agent with authority to bind 2nd defendant, then it was the party that plaintiff ought to have proceeded against. A party suing in contract ought to bring proceedings against the party in breach so as to achieve the necessary redress. In casu, plaintiff sought an order of specific performance. That relief could only be sought against a party to the contract, and not an outsider.

It was further submitted that while the law recognized a contract for the benefit of a third party, it did not accept a contract for the disadvantage of a third party. This was the rule that plaintiff sought to have turned on its head. A party could only be sued where there was a cause of action against them. A cause of action arose where facts justified the granting of relief against a party.  Counsel referred to the cases of Read v Brown and Letang v Cooper. The existence of a cause of action was connected to a right to judgment. Plaintiff did not plead any entitlement to judgment against 1st defendant. For that reason, no cause of action arose against 1st defendant.

As regards 2nd defendant, counsel submitted that its position was no different from that of 1st defendant. 2nd defendant owned the land in dispute. Plaintiff did not aver that 2nd defendant appointed 1st defendant to sell its land. Neither did it make any undertaking to transfer the land to the plaintiff. There was no privity of contract as between plaintiff and 2nd defendant. Thus, no cause of action could be found against 2nd defendant. A claim for specific performance was not competent either. Reference was made to the cases of Jangara v Nyakuyamba & Ors and Ventab (Pvt) & Ano v Gondo & Ano.

A further difficulty afflicted the plaintiff’s claim. The piece of land whose transfer it claimed did not exist. This position was accepted in the proceedings under HC 2106/19. In the premises, plaintiff was estopped from pleading a contrary position. The court was urged to have recourse to the pleadings under HC 2106/19 in determining this dispute. Plaintiff claimed transfer of stand number 410 Lot 2A, Blufhill Township, Harare. According to the agreement of sale, it was held under DT number 0003088/98 and measured 1000m2. The correct position on the ground was that DT number 0003088/98 was 107, 0424 hectares in extent. Therefore, even if the court were to find in favour of the plaintiff, it would still not be able to grant the relief sought by the plaintiff. In that vein, the claim violated section 33(1) of the Land Survey Act. The positions of beacons and boundaries pertained to DT number 0003088/98, which measures 107, 0424 hectares. The claim also violated section 14(a) of the Deeds Registries Act.The gist of the submission was that before ownership could be transferred, there must exist a deed of transfer pertaining to that piece of land. That title deed must have been executed by the 4th defendant. There existed no deed of transfer executed by 4th defendant in respect of stand number 410 measuring 1000m2. Such land did not exist. The claim was misplaced.

It was further submitted that where an exception was taken on the basis that pleadings were inelegantly prepared, the court would upon upholding the exception, grant leave to amend the offending pleading. Where however, the exception went to the root of the pleading, the proper course of action was to dismiss the claim. The defendants submitted that the plaintiff’s claim fell in the latter category. Counsel referred to the case of Local Authorities Pension Fund v Makwava and Others. The court was urged to uphold the exception and dismiss the claim.

In response Mr Donzvambeva submitted that summons were not issued to correct errors but to commence proceedings against a party. As a matter of law, an exception was taken on the basis of a flaw ex facie the pleading. The court was confined to the contents of the summons as read with the declaration. He cited Rule 115 of the Rules. Reference was also made to the case of Mutyasira v Estate Late Muchineripi. Counsel further submitted that the issues raised by the defendants would be amply dealt with through evidence at the trial. The existence of an agreement of sale between plaintiff and 1st defendant was common cause. The description of the property, its size and why the agreement was between plaintiff and 1st defendant, which had no ownership rights, were all issues for trial. The fact that the summons and declaration were inelegantly dressed did not disentitle plaintiff from seeking recourse against defendants. The citation of 2nd defendant who was not party to the agreement of sale was an issue to which an answer would be provided at the trial. If 2nd defendant’s stance was that it had no privity of contract with plaintiff, then that was a defence it had to raise at the trial. That defence could not be raised by way of exception.

Mr Donzvambeva insisted that the plaintiff’s claim was set out in a manner that established a cause of action against both defendants. Paragraph 7 of the declaration made it clear that plaintiff entered into an agreement of sale with 1st defendant in respect of stand number 410, Lot 2A, Bluffhill Township, Harare. An averment was made that even though 1st defendant was listed as the seller, the property was registered in 2nd defendant’s name. At the material time, some or all of the directors of 1st defendant were also directors of 2nd defendant. 1st defendant had at all times acted on behalf of 2nd defendant in respect of the property in question. The averments formed the nub of plaintiff’s claim against the defendants. They disclosed a cause of action. Crucially, plaintiff made allegations against defendants in the summons as read with the declaration. Those allegations would be proved through evidence at the appropriate stage. The defendants knew the case they had to defend.

Plaintiff submitted that no new facts could be adduced to show that the pleading was excipiable. The plaintiff alleged the existence of an agreement of sale in which 1st defendant was the seller. Plaintiff also alleged that the property was registered in 2nd defendant’s name, and that there existed a connection between 1st and 2nd defendants. The agreement of sale was not before the court seized with the exception. Similarly, the evidence of the defendants’ relationship, justifying their citation as co-defendants was also not before the court.  It would be availed at the trial. It was imprudent for the court to uphold the exception. If 1st defendant’s defence was lack of title, then it ought to raise that in its plea and not by way of exception. Likewise, if 2nd defendant’s defence was that it was not privy to the agreement of sale, then it ought to plead that defence than raise an exception. If defendants alleged that the property did not exist, then they needed to wait for the plaintiff to prove its existence through evidence.

The court was urged to be wary about determining the dispute by way of exception, when in fact evidence was required. Plaintiff had a right to be heard in respect of his claim. He bore the onus to prove his allegations. The court was referred to the cases of Tel One (Pvt) Ltd v Capitol Insurance Brokers (Pvt) Ltd and Sammys Group (Pvt) Ltd v John Bourchier Meyburgh NO & Others. Defendants constituted a single economic entity. That explained why relief was sought against them jointly and severally. They were both involved in transactions that resulted in the claim against them. Evidence would be availed at the trial.

Plaintiff further averred that the relief sought by the defendants was untenable. The law was clear on how a matter should progress where an exception was upheld. Counsel referred again to the Sammys Group (Pvt) Ltd v Meyburgh case. The court did not necessarily have to dismiss the plaintiff’s claim. The offending pleading must be set aside and plaintiff given leave to file an amended pleading. Plaintiff argued that the defendants had not made out a case for the upholding of the exception. It had to be dismissed with costs.

THE LAW

Authors Herbstein & Van Winsen said of an exception:

“An exception is a pleading in which a party states his objection to the contents of a pleading of the opposite party on the grounds that the contents are vague and embarrassing or lack averments which are necessary to sustain the specific cause of action or the specific defence relied upon. The taking of an exception is a procedure which is interposed before the delivery of a plea on the merits by a defendant or before the delivery of a replication or the joinder of issue by a plaintiff. It is designed to dispose of pleadings which are so vague and embarrassing that an intelligible cause of action or defence cannot be ascertained or to determine such issues between the parties as can be adjudicated upon without the leading of evidence. The aim of the exception procedure is thus to avoid the leading of unnecessary evidence and to dispose of a case in whole or in part in an expeditious and cost effective manner”

In Colonial Industries Ltd v Provincial Insurance Co Ltd, the court explained the purpose of an exception as follows:

“…the form of pleading known as an exception is a valuable part of our system of procedure if legitimately employed: its principal use is to raise and obtain a speedy and economical decision of questions of law which are apparent on the face of the pleadings: it also serves as a means of taking objection to pleadings which are not sufficiently detailed or otherwise lack lucidity and are thus embarrassing.”(Underlining for emphasis).

In determining the propriety of an exception, the court takes the facts pleaded as correct. The underlying principle is that an exception may only be taken when the cause of the complaint appears ex facie the pleading. No new facts may be adduced to support the complaint.

ANALYSIS

In the letter of 8 June 2020, defendants’ counsel had raised as the first complaint the failure by plaintiff’s summons to comply with Order 3 Rule 11(c) of the Rules. That complaint was not pursued in the exception filed on 1 September 2010, and neither was it pursued by both counsel in their heads of argument. The gravamen of the defendants’ complaint as set out in the exception and heads of argument is that plaintiff’s claim does not disclose a cause of action against the defendants. In respect of 1st defendant, the objection is that the property at the centre of the dispute is not owned by 1st defendant. Plaintiff seeks transfer of land called stand number 410, Lot 2A, Bluffhill Township, Harare measuring 1000m2, held under DT number 0003088/98. That piece of land does not exist. The land that exists under DT number 0003088/98 measures 107,0424 hectares. It is registered in 2nd defendant’s name. The relief sought against 1st defendant was accordingly untenable. The claim could not be brought against a party that did not hold title. In Chimwanengara v The Sheriff of the High Court of Zimbabwe & Ano, the court defined a cause of action as follows:

“What constitutes a cause of action has been aptly set out in a number of cases and the court was referred to the cases of Dube v Banana 1998 (2) ZLR 92 H at 95 and Muhahlera v Clerk of Parliament and Others HH 107/07. A cause of action is a combination of facts that are material for the plaintiff to prove in order to succeed in his action. In the Muhahlera case supra the court defined a cause of action as

“…the entire set of facts which gives rise to an enforceable claim and includes every act which is material to be proved to entitle a plaintiff to succeed in his claim.””

An exception may only be taken when the defect in the pleadings appears ex facie that pleading. The excipient is confined to the contents of the summons and declaration. No fresh matters may be introduced at that stage for doing so would cause undue prejudice to the plaintiff. In their heads of argument, defendants argued that in HC 2106/19, plaintiff accepted that the property was owned by 2nd defendant. It was also advised that the contract it sought to have enforced had been entered into by strangers unknown to the defendants. Having withdrawn that matter, plaintiff nevertheless proceeded to launch the present claim despite being forewarned of the difficulties that lay ahead. I am persuaded by Mr Donzvambeva’s submission that these claims are essentially matters of evidence which this court cannot deal with at this stage. In Sammys     Group (Private) Limited v Meyburgh N.O.  & 3 Others, ZIYAMBI JA said:

“[29]   	The court a quo had before it, and took into consideration, the affidavits of evidence contained in the court application (H.C.2104/10).  For the purposes of an exception no facts (except agreed facts) may be adduced by either party and an exception may thus only be taken when the defect objected against appears ex facie the pleading itself.  Nor can the court rely on any facts or evidence not contained within the pleading excepted to.  In this instance, the need felt by the court a quo to rely on evidence outside the pleading points to the fact that a proper decision on the exception was bound with the merits of the dispute and a trial of the issues was therefore imperative.

[30]   	In adopting the procedure that it did – namely, relying on evidence outside the pleadings and basing its conclusion on the lack of evidence on the issues to be determined without hearing the appellant, the court a quo effectively deprived the appellant of the opportunity to lead evidence on the matters which were taken into account in arriving at its decision in the matter. Since the parties were ready for trial, the proper course was to conduct a trial in order to determine the merits of the matter and the court erred in failing to do so…..” (Underlining for emphasis).

It is therefore irregular for the defendants to seek to rely on concessions that were ostensibly made by plaintiff in HC2106/19. The concessions were not even made in the pleadings. They were presumably made in the written exchanges between the parties counsel. The application was withdrawn before 1st respondent had filed its opposition.

A party claiming specific performance under an agreement must: allege and prove the existence of the contract; allege and prove compliance with any antecedent or reciprocal obligation; allege non-performance by the defendant and claim specific performance. Paragraph 7 of the plaintiff’s declaration asserts the existence of an agreement of sale between plaintiff and 1st defendant. Paragraph 8 alleges a breach of that agreement by defendants despite payment of the purchase price in full. It is the court’s view that although the claim was inelegantly pleaded, the plaintiff managed to set out the material averments of its claim against the 1st defendant as required by law. The bases on which 1st defendant seeks to impugn the claim against it are in this court’s respectful view, matters that cannot be resolved without the introduction of fresh facts from outside the circumference of the declaration. Yet the 1st defendant must accept as true the allegations contained in the declaration. I accordingly find the complaint on behalf of 1st defendant without merit and it must fail.

In respect of 2nd defendant, the complaint was that the plaintiff’s claim does not allege the existence of an agreement with 2nd defendant. It was not even suggested that 2nd defendant agreed to transfer ownership of the property to the plaintiff. Simply put, there was no nexus either grounded in delict or contract to support a claim against 2nd defendant. The claim against 2nd defendant was accordingly ill-conceived.

In paragraph 7 of the declaration, plaintiff attempted to establish a connection with 2nd defendant by alleging that “at the material time, some or all of the directors of the 1st Defendant were also directors of the 2nd Defendant. The 1st Defendant has at times acted for the 2nd Defendant in relation to the stand in question. Consequently, the Plaintiff is suing 1st and 2nd Defendant jointly and severally”. In his heads of argument, plaintiff took the point a notch further. The two defendants constituted a single economic entity. The defendants were involved in transactions which gave birth to the plaintiff’s claim against them. Several authorities were cited to advance this position. In Deputy Sheriff Karoi v Edward Chigango and 55 Others and Fresh Bakery, Karoi and David Govere, TSANGA J explained the single economic entity principle as follows:

“In the case of Deputy Sherriff Harare & Trinpac Investment (Claimant) & Christopher William Barnsley (Judgment Creditor) HH 121 – 2011 PATEL J as he then was, emphasised through a number of case authorities, that while a company is a separate legal entity, courts will pierce the corporate veil where it is being used merely to defeat the course of justice. (Cases cited in support of this averment included Lategan & Another v Boyes & Anor 1980 (4) SA 191 (T) at 200-2001; Van Nierkerk v Van Nierkerk & Ors 1999 (1) ZLR 421 at 427; Mawere v Minister of Justice 2005 (1) ZLR 317 (H) at 327).

He put it thus:

“The exceptions to the general principle have been extended beyond the realm of fraudulent and improper conduct to the situation where a single economic entity owns all the shares in its subsidiaries and controls every aspect of its operation’

He also went further to explain as follows:

“The rationale for this extension, as I perceive, is that where the operation of an economic group are so close as to be virtually indivisible, considerations of policy tend to militate against any legal separation of its integral units, for to do so would be to perpetuate an essentially corporate fiction. Of course this may not invariably be the case, but the equities would certainly favour such an approach in dealings at arm’s length with innocent outsiders”.

Courts consider the doctrine of corporate personality as sacrosanct in corporate law. It is in exceptional circumstances that the conduct of one entity is imputed to a separate entity, or a sister company.  It was not sufficient for the plaintiff to just allege that “at the material time, some or all of the directors of the 1st Defendant were also directors of the 2nd Defendant”. That does not create a contractual nexus between 2nd defendant and the plaintiff. Further, the fact that 1st defendant may have acted on behalf of 2nd defendant in relation to the property in question, does not make 2nd defendant a party to the contract. It does not create the necessary connection which makes 2nd defendant susceptible to a contractual or delictual claim by the plaintiff.  The invocation of the single economic doctrine by plaintiff was in the court’s view ill-conceived. It was not pleaded. No material averments were made to support the claim against 2nd defendant based on the single economic entity principle. The terms of the contract with 2nd defendant were not stated. There is no allegation of any antecedent or reciprocal obligations expected of 2nd defendant pursuant to some performance by plaintiff. The alleged breach imputed to the 2nd defendant was rather conjectural in the absence of some antecedent act linking 2nd defendant to the agreement of sale.

It is common cause that the plaintiff’s claim is based on an alleged breach of an agreement specifically between plaintiff and 1st defendant. Plaintiff accepted in his declaration that the property he claims under the agreement of sale is registered in 2nd defendant’s name. 2nd defendant is not a party to that agreement. I am persuaded by 2nd defendant’s contention that there is no privity of contract between plaintiff and 2nd defendant. In Siwawa v Cooper Construction (Pvt) Ltd MATHONSI J (as he then was) said:

“The applicant faces an insurmountable hurdle in that he relies for his claim on an agreement in which he is not a party. There is no privity of contract. The principle of privity of contract in our law is a simple one. As stated by the learned author R H Christie in his book Business Law in Zimbabwe, 2nd ed, Juta & Co Ltd at p 7:

“A person who is not a party to a contract cannot be held liable or claim on it because, as it is usually expressed, he is not privy to the contract: PTC Pension Fund v Standard Chartered Merchant Bank Zimbabwe Ltd 1993 (1) ZLR 55. The doctrine of privity of contract is, however, sufficiently elastic to encompass the rules of agency, under which a principal becomes a party to a contract made on his behalf by his agent. But the appointment by the agent of a sub-agent does not, in the absence of agreement to the contrary, create privity of contract between the sub-agent and the principal: Karaolias v Sulam 1975 (1) RLR 320, 1975 (3) SA 873””. (Underlining for emphasis)

The plaintiff has not made material averments to demonstrate that although 2nd defendant is not a party to the agreement of sale, and seeing as the property is registered in its name, it is nonetheless privy to the agreement between 1st defendant and plaintiff. As a result, the 2nd defendant should not have been joined as a party to the proceedings. The impropriety of citing the 2nd defendant, when it was clearly not privy to the agreement of sale cannot be consigned to inelegance in the drafting of the plaintiff’s claim. It was an ill-considered decision especially after the anomaly was brought to the plaintiff’s attention. The claim against 2nd defendant is groundless. No cause of action was established against 2nd defendant.

COSTS

The starting position is that costs should follow the event. Defendants sought the upholding of the exception and the dismissal of the plaintiff’s claim with costs. Plaintiff on the other hand sought the dismissal of the exception with costs. The award of costs is in the discretion of the court. In exercising its discretion the court takes into account the nature of the case and the manner in which litigation was conducted. Both parties were partly successful. I would have been inclined to order that each party bears its own costs of suit. However, plaintiff’s conduct deserves censure with regards to the claim against 2nd defendant. In the letter of 8 June 2021, plaintiff’s counsel was informed that the property in dispute was owned by 2nd defendant. While accepting that the property was indeed registered in 2nd defendant’s name, in their response, plaintiff’s lawyers were adamant that defendants constituted a single economic entity. To that extent, there was a cause of action against 2nd defendant. As already noted, that averment was not pleaded in the summons and declaration. Had plaintiff’s counsel been heedful and more vigilant, then they would have taken the necessary remedial measures at that early stage. 2nd defendant would not have been needlessly dragged into these proceedings.

DISPOSITION

Accordingly, it is ordered as follows;

The exception is dismissed in respect of the claim against 1st defendant, with no order as to costs.

The exception is upheld in respect of the claim against 2nd defendant.

The plaintiff’s claim against 2nd defendant is hereby dismissed with costs.

Pundu & Company, plaintiff’s legal practitioners

Gill Godlonton and Gerrans, 1st and 2nd defendants’ legal practitioners