Samuel Makumbe v M V Mooljee & Sons (Pvt) Ltd & 3 Ors

### Preamble
1
HH 515-18
HC 11350/17
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SAMUEL MAKUMBE

versus

M V MOOLJEE & SONS (PVT) LTD

and

LOVEMORE NYAUSARU

and

THE SHERIFF OF THE HIGH COURT

and

THE REGISTRAR OF DEEDS N.O

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 26 July 2018 & 22 August 2018

Special Plea

L Uriri, for the plaintiff

O Mushuma, for the 1st defendant

MATHONSI J: It seems to me quite unacceptable if not completely dishonorable for a litigant who has the benefit of legal counsel to repeatedly approach the same court on the same facts and in respect of the same cause of action, seeking almost the same relief which has previously not found favour with the court, a court which has pronounced itself very clearly on the matter. Not once, not twice but thrice, this court has expressed the view that the plaintiff’s claim that he purchased stand 1092 Umtali Township, also known as No 26 Jameson Road Mutare (the property) and that it be transferred by the first defendant to him, is not only baseless in the extreme but also unfounded he having purported to purchase the property from a non-owner one Lovemore Nyausaru who is cited here as the second defendant. Still the plaintiff would not relent.

In the present summons action the plaintiff seeks the same relief. He makes the averments in his declaration that on 25 October 2011 he entered into an agreement of sale with the first defendant which is the registered owner of the property, and was acting through the agency of the second defendant, in terms of which he purchased the property for $100 000.00. He duly paid the purchase price. The plaintiff goes on to plead in paras 8 and 9 of the declaration thus:

“8.	In terms of the said agreement of sale the plaintiff would take occupation of stand 1092 Umtali Township after full payment of the purchase price and the seller (first defendant) would transfer the property to the purchaser after full payment of the purchase price.

9.	The plaintiff paid the full purchase price by 1 June 2012 and was given vacant and peaceful occupation of stand 1092 Umtali Township on the same date in compliance with the said agreement of sale. The plaintiff has been in occupation of stand 1092 Umtali Township since that date.”

A bit of background would put the matter in proper perspective. In HC 10809/13 the first defendant sued the second defendant for eviction from the property and obtained an eviction order against the second defendant and all those claiming occupation through him on 28 May 2014. He later sought to execute that order against the plaintiff, in occupation of the property on the basis of a sale agreement he entered into with the second defendant purportedly acting on behalf of the first defendant. The first defendant has categorically disowned him and revealed the true circumstances of their engagement in a series of affidavits filed in the cross-reference court records.

When the ejectment of the plaintiff was imminent, he filed an urgent application for a stay of execution in HC 1572/17 on 22 February 2017 and obtained a provisional order on 28 February 2017 staying the eviction as he argued that he was in occupation of the property, not through the second defendant, but in his own right as the person who had purchased it from the first defendant by sale agreement dated 25 October 2011. It is significant, that at para 12 of his founding affidavit in that application the plaintiff stated:

“12.	Around 20 November 2012 I approached the first respondent’s representative, a Mr Arun Mooljee at his office at FABS Hardware along Cameroon Street here in Harare demanding the original Title Deeds from him for purposes  of effecting the said transfer, having been directed there by his agent, the second respondent.”

That statement is significant for 2 reasons. Firstly it tells us that the plaintiff was aware as early as then that the first defendant’s address was in Cameroon Street Harare and would really have had no reason on 1 April 2015 to send the Sheriff to serve summons on the defendant at an address in Mutare, as shall become apparent shortly. Secondly, as far back as November 2012, the defendant was already agitating for transfer of the property to himself, a clear indication that the cause of action was complete. But then, I digress. I am at the moment setting out the background of the litigation.

The plaintiff did try to have the provisional order staying execution confirmed against strong opposition from the first defendant which maintained it had neither sold the property to him nor authorised the second defendant to sell it on its behalf, the latter having been a tenant at the property at all times. The plaintiff’s endeavour came to naught when CHIWESHE JP, by judgment delivered on 20 March 2018 in Makumbe v M V Mooljee & Sons (Pvt) Ltd & Ors HH 152-18, threw out his application and discharged the provisional order. In doing so, the learned Judge President made quite telling pronouncements on the merits of the plaintiff’s case. He said:

“The applicant’s case is clearly deficient… Clearly the absence of such resolution by the first respondent lends credence to the first respondent’s assertion that the deal was concluded without its authority and that the second respondent and the applicant acted fraudulently. Further the purported payment of the purchased price was not made to the first respondent but to accounts belonging to companies owned by the second respondent. Thus the monies were not paid to the first respondent but to the second respondent. Indeed, the applicant is unable to 	produce

any receipts to prove that payment was indeed received by the first respondent. Clearly

The applicant has no leg to stand on…. He has also failed to show that he paid the purchase price to the rightful owners of the property. I would discharge the provisional 	order on the basis alone. The applicant has pursued a hopeless case knowing fully well that the first respondent had not authorised the sale of the property to him.”

In my view these were very pointed findings by the court which should have informed the plaintiff’s next course of action. He learnt nothing from them. Indeed following that judgment the plaintiff was evicted from the property in pursuance of a writ executing a judgment of this court.

Meanwhile on 19 March 2015 in HC 2518/15 the plaintiff instituted summons action against the same defendants as in the present action. He sought similar relief for the transfer of the property from the first defendant to himself. He made the same averments which he makes in the present case that he had purchased the property from the first defendant on 25 October 2011 and paid the purchase price of $100 000.00 in full, by 1 June 2012. What is significant is that, although the plaintiff was by then well aware of the location of the first defendant in Cameroon Street Harare, 	he having visited the director of the first defendant by his own admission, on 20 November 2012, he still saw it fit, in his wisdom or lack of it, to serve the summons at no. 36 Jameson Street in Mutare. This is an address belonging to the second defendant’s company. That way the plaintiff obtained default judgment against the first defendant which says that the summons were never served on it as it has nothing to do with the second defendant. The judgment was granted on 2 September 2015, per Zhou J.

I must say that this court has already made findings on the validity of that purported service of summons in HC 1682/17 which is an application in terms of r 449 brought by the first defendant against the plaintiff and 2 others for rescission of the default judgment. Even though the plaintiff tried to cling onto the default judgment, Makoni J (as she then was) rescinded it. In doing so she made clear findings that the second defendant was not authorised by the first defendant to sell the property and that service of the summons on the first defendant was an exercise in futility. She remarked:

“So what are the facts that have been placed before me that were not placed before the court that 	granted the default judgment? It is the fact that the agreement of sale records that the second 	respondent was duly authorised by the first respondent to represent the applicant and it makes 	reference to a resolution. That resolution was not produced before the court. In the first place it 	was not attached to the agreement of sale and it was not produced before the court. It has now 	come to the attention of this court that that resolution might not exist…. If it turns out that there is 	no resolution, then it follows that that agreement of sale is invalid and the court which proceeded 	to grant judgment was not aware of that fact. It is my finding that there are facts that have been 	placed before me which were not before the court that granted the judgment in the first place.”

Let me state, for completeness, that although the default judgment was rescinded case number HC 2518/15 was neither withdrawn nor prosecuted. It is however an issue that falls outside the purview of this judgment I not having been addressed at all on it and the first defendant not having raised any objection based on it.

Against that background, the first defendant has pleaded specially to the plaintiff’s claim raising prescription of the claim. The first defendant avers that the plaintiff’s claim is based on a contract allegedly concluded on 25 October 2011 in terms of which the first defendant was obliged to transfer the property to the plaintiff after full payment of the purchase price. As the purchase price was allegedly paid in full by 1 June 2012, prescription commenced running on that date and the claim prescribed on 2 June 2015. The summons issued on 19 March 2015 was not served on the first defendant and therefore did not interrupt the running of prescription. Apart from that, the case in question was not prosecuted to final judgment and even if it was, the judgment was rescinded by this court on 5 October 2017. I am therefore called upon to decide whether the plaintiff’s claim is prescribed in terms of s 14 (l) as read with s 15 (d) of the Prescription Act [Chapter 8:11].

Mr Uriri who appeared for the plaintiff took the preliminary point that the matter has been improperly set down given that the procedure for set down of such matters provided for in r 138 has not been complied with. He made reference to r 223 (2) and r 288 (1a) in making the point that in the absence of compliance with those rules the special plea should not have been set down for hearing without the filing and service of heads of argument. The special plea should have been stood over for trial. In addition the first defendant having pleaded over to the merits, the issues raised in the special plea can only be resolved at the trial. Apart from that, there are disputes of facts which can only be resolved by the leading of oral evidence to unravel them.

Mr Mushuma for the first defendant submitted that it is competent to set down a special plea even after pleading over to the merits because there is nowhere in the rules where doing so is precluded. To support that proposition Mr Mushuma referred to r 138 (c) which seems to suggest that a special plea may still be pursued even after the filing of a plea  on the merits. Rule 138 provides;

“ 138 Procedure on filing special plea, exception or application to strike out.

When a special plea exception or application to strike out has been filed—

the parties may consent within ten days of the filing to such special plea, exception or application being set down for hearing in accordance with subrule (2) of rule 223;

failing consent either party may within a further period of four days set the matter down for hearing in accordance with subrule (2) of rule 223;

failing such consent and such application, the party pleading specially, excepting  or applying shall within a further period of four days plead over 	to the merits if he has not already does so and the special plea, exception or application shall 	not be set down for hearing before the trial.”

I accept that para (c) of the rule has peremptory application by virtue of the use of the word “shall” in it. I however tend to agree with Mr Mushuma for the first defendant that the use of the phrase “if he had not already done so” presupposes that a defendant can plead to the merits at any stage, even while still pursuing a special plea. As long as the procedure for set down of a special plea, exception or application to strike out provided for in the rule is complied with the mere pleading over to the merits does not prevent the defendant who is pleading specially, excepting or applying from having the matter set down before trial.

I notice that paragraph (c) uses the word “application” as one of the options available apart from the consent of the parties to set down the matter. There is nowhere in paragraphs (a) and (b) where an application is referred to as paragraph (a) gives only the option of a consent of the parties to set down while paragraph (b) directs either party to straight away set down the matter in the absence of consent. In my view the framers of the rules must be taken to have been referring to the option of set down available to either party as provided for in para (b). To my mind they appreciated that the current practice at this court is that a party cannot, on its own, set down a matter, but applies to the Registrar for a set down. This is usually done by submitting a blank notice of set down accompanied by a letter requesting set down. When that happens the Registrar forwards the matter to the Judge President for allocation to a judge who then sets the matter down.

It is a celebrated principle of our practice that the rules are made for the benefit of the court and not the other way round. In interpreting the rules the court must construe them in such a way that they do not impede the administration of justice but also that they remain useful to the court. It occurs to me that r 138 must be interpreted to mean that a party who is pleading specially, excepting or applying to strike out is entitled within 14 days of the filing of that pleading, not to set down the matter for hearing as that is not possible at the moment but to apply to the Registrar in whatever form, for set down. If a party has applied for set down, that should be taken as sufficient compliance with r 138 and such a matter should be set down and resolved before trial. I therefore reject Mr Uriri’s argument.

The other point raised relates to the filing of heads of argument it being common cause that the first defendant’s heads of argument were only filed on 10 July 2018 when its application for set down was submitted on 11 June 2018. The special plea was filed on 21 May 2018 which means that the application for set down was made on the 14th day given that 25 May 2018 was a public holiday. I therefore do not agree with Mr Uriri that the application for set down was filed out of time and reject that argument as well.

Regarding the filing of heads of argument, Mr Uriri submitted that it is incompetent to set down a special plea for argument before heads of argument are filed by virtue of the peremptory provisions of r 223 as read with r 238 (1a) High Court Rules, 1971. That subrule provides for the setting down of “exceptions, applications to strike out and other applications which are opposed” by filing a notice of set down with the registrar. Nothing turns on that. It is r 238 (1a) will requires a closer examination. It reads:

“An application, exception or application to strike out to which subrule (1) applies shall not 	be set down for hearing at the instance of the applicant or excipient, as the case may be, 	unless-

his legal practitioner has filed with the registrar in accordance with subrule (1) –

heads of argument; and

proof that a copy of the heads of argument has been delivered to every other party; and

in the case of an application, the pages have been numbered in accordance with paragraph (c) of subrule (1) of rule 227.”

Special pleas are omitted from the application of subrule (1a) of r 238. I agree with Mr Mushuma that the omission of a special plea in that subrule is deliberate. Indeed it is a cardinal rule of statutory interpretation that the express mention of one or more things excludes the others which are not mentioned. It cannot be seriously argued therefore that the failure to file heads of argument before set down meant that the special plea could not be entertained when the rule relied upon by Mr Uriri clearly does not include special pleas.

There is a reason why special pleas are omitted from the rule requiring heads of argument to be filed before set down. It is because they are distinct from exceptions and applications to strike out and the defence raised by special plea may not be evident ex facie the pleadings and may require some facts to be proved by evidence. In a well-written judgment in NECCI v Zimbabwe Naintong International (Pvt) Ltd 2015 (2) ZLR 222 (S) at 235 E-F, Patel JA makes a very clear distinction between the 2 sets of pleadings;

“As a general rule, exceptions taken by a defendant must be limited to objections or defences that arise ex facie the declaration itself. These would include averments that the declaration or part thereof does not disclose a valid cause of action or is vague and embarrassing. On the other hand, where the point taken constitutes a special defence, such as absence of jurisdiction, res judicata or prescription (cf the pleas referred to above, as discussed by Herbestein and Van Winsen, (loccit), the procedure to be follows is by way of special plea. These are instances where the defence relied upon is not evident ex facie the declaration and involves the averment of some new fact or facts to be proved with fresh matter. The procedure by way of special plea enables the plaintiff to rebut the defence raised by replication and the adduction of further evidence where necessary. In exceptional cases, however, where the special defence in question is apparent ex facie the declaration itself, the court may allow the matter to be decided on exception. This is subject to the qualification that the plaintiff has nothing to adduce in rebuttal and will not be prejudiced by a decision being taken on exception.”

I conclude therefore that the first defendant was not constrained to file heads of

argument before applying for set down. As a corollary to that the absence of heads of argument did not preclude the set down of the matter. The matter was properly set down. Even if I were wrong in arriving at that conclusion, this is a matter in which I would still invoke the provisions of r 4C and allow the hearing and determination of the matter for 2 reasons. The first one is that both parties managed to file their heads of argument ahead of the set down date and I have had the benefit of them. None of them would be prejudiced.

The second one is that the special defence raised is so clear, meritable and completely disposes of the matter to such an extent that it would be a travesty of justice to defer it to trial, a trial which will never be. In the process the matter will undeservedly remain on the list of causes awaiting trial when it should not be.

Regarding the special defence of prescription Mr Uriri said very little. In fact it would be fair to say that no confidence whatsoever is exhibited in the single and half-hearted argument that the claim is not prescribed because prescription should be taken to have only started running on 5 October 2017, when the default judgment obtained by the plaintiff was rescinded. I completely disagree. In terms of s 15 (d) of the Prescription Act [Chapter 8:11] the period of prescription of any debt is 3 years. Debt is defined to include anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise. There is therefore no doubt that the plaintiff’s claim prescribes after 3 years from the time the cause of action arose. I find, without hesitation, that the cause of action arose on 1 June 2012 when the plaintiff paid the full purchase price and, as he pleads, was entitled to take transfer. Unless prescription was interrupted by any of the legally recognised events provided for in s 19 of the Act, the plaintiff’s claim would prescribe in June 2015 when the 3 year period expired.

The question which arises is whether prescription was interrupted. In terms of s 19:

“(1)	……………

(2)	The running of prescription shall, subject to subsection (3), be interrupted by the

service on the debtor of any process whereby the creditor claims payment of the debt.

(3)	Unless the debtor acknowledges liability, the interruption of prescription in terms of subsection (2) shall lapse and the running of prescription shall not be deemed to have been interrupted, if the creditor -

(a) 	does not successfully prosecute his claim under the process in question to final judgment; or

(b)	successfully prosecutes his claim under the process in question to final judgment, but abandons the judgment or the judgment is set aside.”

I have said that this court, per Makoni J (as she then was), has already determined that the plaintiff’s summons in HC 2518/15 was not properly served on the first defendant. It could only make that finding because the plaintiff deliberately ignored the first defendant’s address in Harare which was known to him in favour of a tryst with the second defendant at an address in Mutare. Prescription was therefore not interrupted by service of process. In any event that is a different process from the one before me which is being impugned and would be of no use to the plaintiff unless if it was successfully prosecuted as provided for in subs (3). It was not. The issuance of that process came to nothing because the default judgment was rescinded after which the judicial process was not pursued. It occurs to me that it could not be pursued at all because the plaintiff was aware of this court’s finding that there had been no proper service of that summons. Attempting to serve it outside the 3 year prescriptive period would be met with a similar special plea of prescription.

There is no merit in the argument that the subsistence of the default judgment which has already been found to have been erroneously sought and erroneously granted and rescinded in terms of r 449 did anything to interrupt prescription. The plaintiff’s claim is prescribed.

I have said that the plaintiff has been advised twice by this court that his claim for transfer is devoid of merit. He has previously been lumbered with punitive costs for that particular reason. He has left an action which he commenced in HC 2518/15 hanging upon realisation that it was prescribed. It was therefore disingenuously in the extreme to commence the same action again in the hope of pulling the wool over the court’s eye and that prescription will not be raised. This is a case calling for an award of admonitory costs in order to register the court’s displeasure at what appears to be a blatant abuse of the process of the court.

In the result, it is ordered that:

The first defendant’s special plea be and is hereby upheld.

The plaintiff’s claim be and is hereby dismissed with costs on a legal practitioner and client scale.

Mkuhlani Chiperesa Legal Practitioners, plaintiff’s legal practitioners

Mushuma Law Chambers, 1st defendant’s legal practitioners