Priscilla Fusire v Emmanuel Chiroto

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PRISCILLA FUSIRE
versus
EMMANUEL CHIROTO



HIGH COURT OF ZIMBABWE
CHIGUMBA J
HARARE, 10 November 2015 and 8 January 2016



Opposed Application



B Mataruka, for the applicant
T Zhuwarara, for the respondent

       CHIGUMBA J: Plaintiff issued a provisional sentence summons against the defendant on
13 February 2015 claiming an amount of USD$28 000-00 together with interest thereon at the
prescribed rate calculated from 5 March 2014 to the date of payment in full, as well as costs of
suit. The plaintiff’s claim was based on an acknowledgement of debt executed in her favor by the
defendant. The issues that arise for determination in this matter are whether the plaintiff has
fulfilled the requirements provided for a claim for provisional sentence in terms of order 4 rr 20
and 21 of the rules of this court, or whether the defendant has adduced sufficient cogent evidence
that the acknowledgment of debt was signed under duress and is not valid. In other words is the
plaintiff nothing more that a woman scorned who is bent on exacting revenge for defendant’s
breach of promise to marry her, or is the defendant nothing more than a man who does not stand
by his word, who breezes through life making promises to marry, promises to pay, then turns
around and callously breaks his promises in the hope of escaping the consequences?
       Defendant was to appear before this court on 11 March 2015 to answer the claim. On 3
March 2015 he filed a notice of opposition and in the opposing affidavit, averred that the
acknowledgment of debt which the plaintiff sought to rely on was not deposed to freely and
voluntarily as it was dictated to him and signed under duress as a result of threats by a police
officer who had arrested him and threatened to lock him up unless he signed the agreement. He
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referred to his defence outline in case CRB 4552/14 where he was charged with the offence of
fraud and the charges against him were dismissed. The basis of the dismissal was that the state
failed to produce the acknowledgment of debt as an exhibit. It is common cause that the parties
were involved in an intimate relationship between November to January 2012 with the intention
of tying the knot. During that period plaintiff contributed towards the household expenses and
the needs of the parties’ respective businesses, as well as electricity, rent, clothing, hotel
accommodation and school fees expenses. Defendant averred that when the relationship ended
unceremoniously in January 2012, plaintiff was bitter about the breach of promise to marry her
and threatened to embarrass him in public.
       Subsequently, defendant was summoned to the commercial crimes unit to answer
allegations of theft of trust property in mid 2013. He acknowledged his indebtedness to the
plaintiff and provided a payment plan, out of fear of being detained in police cells and of being
embarrassed in public. In February 2014, defendant was again summoned to the serious fraud
squad and threatened with detention and public embarrassment. A warned and cautioned
statement was recorded and signed. On or about February-March 2014 he signed the
acknowledgment of debt and deposed to it in the presence of a police officer. He reluctantly paid
USD$1 000-00 in cash to the police officer for onward transmission to the plaintiff. Thereafter
he was bombarded with phone calls from the police in which they demanded further payments,
which only stopped after he threatened to report them for extortion. Defendant denied that
plaintiff ever gave him any money.
       The matter was referred to the opposed roll. On 2 June 2015, plaintiff filed an answering
affidavit in which she denied that the defendant had a valid defence to her claim. She reiterated
that the acknowledgment of debt was signed freely and voluntarily by the defendant. She
challenged defendant to explain why he never reported the alleged extortion, threats or duress to
the police. She averred that the failure by the state to produce the affidavit acknowledging
indebtedness was due to no fault on her part. Finally, she stated that the acknowledgment of debt
does not in any way relate to her contributions to household expenses. In the heads of argument
which were filed of record on 2 June 2015, on behalf of the applicant, the court was referred to
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the case of African Banking Corporation of Zimbabwe t/a Banc-ABC v PWC Motors & Ors1
where it was stated that;
         “… a pattern is manifesting itself where business people will stop at nothing in avoiding to pay
         legitimate claims and in the process play havoc with investor confidence”.

          It was submitted further, that the remedy of provisional sentence is provided for in terms
of order 4 rr 20 and 21 of the High Court Rules of Zimbabwe 1971, which provides that;-
         “20. Summons claiming provisional sentence
         Where the plaintiff is the holder of a valid acknowledgement in writing of a debt, commonly called a
         liquid document, the plaintiff may cause a summons to be issued claiming provisional sentence on the
         said document.

         21. Contents of summons for provisional sentence
         A summons claiming provisional sentence shall state the amount and any interest due by virtue of the
         said liquid document or other such demand as by virtue of the said liquid document is legally
         claimable, and shall 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.

         Applicant contended that she is the holder of a valid acknowledgment of debt, a liquid
document and that she is entitled to proceed in terms of rule 20. See Kudakwashe Mandizvidza &
Nyaradzo Mandizvidza v Murisi Mukonoweshuro2, where this court stated that;-
         “An acknowledgment of debt by one or both parties clearly stipulating the amount owed by the
         defendant to the plaintiff constitutes a liquid document within the ordinary meaning of rule 20 of
         the High Court Rules 1971”.

         She contended further, that her summons fulfils the requirements of r 21. A defendant
served with summons for provisional sentence may either satisfy the claim or appear in court to
show cause why he has not satisfied the claim, or to acknowledge or deny the signature on the
said document or the validity of the signature. Defendant in this case did not deny his signature.
He seeks to resile from the document on the basis that when he signed the document he was
under duress and fear of being embarrassed and detained. Applicant contends that it is trite that a
person who signs a contract signifies his assent to the contents of the document, and that, if the
document subsequently turns out not to be to his liking he has no one to blame but himself. See


1
    HC5743/12

2
    HC 439/10
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Burger v Central SAR3, and George v Fairmead (Pty) Ltd4. In Book v Davidson5, emphasis was
placed on the sanctity of contracts, as follows;-


          “There is however another tenet of public policy, more venerable than any thus engrafted onto it
          under recent pressures, which is likewise in conflict with the ideal of freedom of trade. It is the
          sanctity of contracts…If there is one thing which more than another public policy requires, it is
          that men of full age and competent understanding shall have the utmost liberty of contracting, and
          that their contracts when entered into freely and voluntarily shall be held sacred and shall be
          enforced by courts of justice. Therefore you have this paramount public policy to consider-that
          you are not lightly to interfere with this freedom of contract…to allow a person of mature age,
          and not imposed upon, to enter into a contract, to obtain the benefit of it, and then to repudiate it
          and the obligations which he has undertaken is, prima facie at all events, contrary to the interests
          of any and every country.

          So a man’s word is his bond after all. Contracts are sacrosanct unless the evidence shows
that they were not entered into freely and voluntarily.
          “The business world has come to rely on the principle that a signature on a written contract binds
          the signatory to the terms of the contract and if this principle were not upheld any business
          enterprises would become hazardous in the extreme. The general rule, sometimes known as
          caveat subscriptor rule is therefore that a party to a contract is bound by his signature whether or
          not he has read or understood the contract’. See Business Law in Zimbabwe6.

          Let us examine defendant’s allegations of coercion and determine whether they are
sufficient, and cogent, to vitiate the acknowledgment of debt and render it void. It is trite that
‘the duress that is sufficient to vitiate a contract must not be fanciful or imagined. It must be
some real and serious threat’. See Genesis Venture Private Limited v Rolmay Trading Private
Limited & Anor7.         The defendant has not named the Investigating officer who allegedly
threatened him with detention or public exposure if he did not sign the acknowledgment of debt.

3
    1903 TS 571 @ 578 “It is a sound principle of law that a man, when he signs a contract, is taken to
be bound by the ordinary meaning and effect of the words which appear over his signature”.

4
    1958 (2) SA 465 (A) @ 472A;- “When a man is asked to put his signature to a document he cannot
fail to realize that he is called upon to signify, by doing so, his assent to whatever words appear
above his signature”.

5
    1988 (1) ZLR 368 (S) @ p378-379

6
    R. H Christie, p67, The law of Contract in South Africa 2nd ed, Butterworths

7
    HC 531/08
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There is no evidence that the defendant reported the investigating Officer to his superiors or that
he even wrote a letter of complaint or sought refuge in the numerous other divisions of the
Zimbabwe republic police. In this day of social media and sophisticated technology it is difficult
to fathom why the defendant did not at least make an effort to record evidence of telephonic
threats and requests for payment, extortion. He could have easily obtained evidence against the
investigation officer if he so wished. Defendant was legally represented at the fraud trial.
            No explanation is given as to why he did not instruct his legal practitioner to make an
appropriate application to have the acknowledgment of debt set aside by this court on the
grounds that it was void ab initio, a product of duress, which vitiated it. To wait until plaintiff
institutes these proceedings or until he was charged with fraud, to raise the defence, brings doubt
as to the veracity of his claims of intimidation. It does not in my view constitute sufficient
evidence of duress to vitiate the acknowledgment of debt. It is valid. In the acknowledgment of
debt, the defendant actually expressly denies that he has been subjected to any threats, and
happily tells the world that he has signed it freely and voluntarily! Defendant’s denial of liability
for the sum claimed is not plausible or believable. Defendant has failed to discharge the onus
which rested on him to show, in provisional sentence proceedings, that he has probabilities of
success in the main action. He has not shown any substantial probabilities. See Zimbank v
Interfin Merchant Bank of Zimbabwe Private Limited 8.
      The defendant’s heads of argument were not in the least bit instructive. In fact the heads of
argument show clearly that the defendant has no valid defence and that there was an abuse of this
court’s process. Counsel for the defendant, at the hearing of the matter, advised the court that he
had nothing meaningful to add, and sat down! To protect its dignity, and to guard against the
future abuse of its process, the court will make an appropriate order as to costs as a sign of its
displeasure. For these reasons, provisional sentence be and is hereby granted against the
defendant in the sum of USD$28 000-00 plus interest thereon at the prescribed rate calculated
from 5 March 2015 to the date of payment in full, together with costs of suit on a legal
practitioner client scale.




8
    2005 (1) ZLR 114 (8)
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Messrs Gill, Godlonton & Gerrans, applicant’s legal practitioners
Messrs F G Gijima & Associates, respondent’s legal practitioners