Simon Chayayi and Leah Chayayi v The Trustees for the Time Being of the Harry Trust and Kudakwashe Nhiwatiwa and Baxter Paints (Pvt) Ltd and City of Mutare and Surveyor General and Registrar of Deeds

### Preamble
1
HH 461-24
HCHC 322/24
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SIMON CHAYAYI

And

LEAH CHAYAYI

Versus

THE TRUSTEES FOR THE TIME BEING

OF THE HARRY TRUST

And

KUDAKWASHE NHIWATIWA

And

BAXTER PAINTS (PVT) LTD

And

CITY OF MUTARE

And

SURVEYOR GENERAL

And

REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

COMMERCIAL DIVISION

CHILIMBE J

HARARE 25 September & 11 October 2024

Exception and special plea

A. Musona for 1st and 2nd plaintiffs

T. Tandiri for 1st ,2nd and 3rd defendants

No appearance for 4th ,5th and 6th defendants

CHILIMBE J

BACKGROUND

[1] First and second plaintiffs Simon and Leah Chayayi (“Mr and Mrs Chayayi”) instituted declaratory proceedings for an order confirming their rights title and interest in an immovable property situate in Mutare.

[2] The action was resisted by first, second and third defendants. I will refer to these as “the Harry Trust”, “Mr. Nhiwatiwa” and “Baxter Paints” respectively or just the excipients. The fourth, fifth and sixth defendants are not participant herein. Additional to a plea on the merits, the first three defendants moved an exception and special pleas under the following heads; -

Exceptions

The summons are defective for want of compliance with rule 12 (5) (d) of the High Court Rules SI 202/21 (“the High Court Rules”) and Form CC 1 in that they do not give a concise statement of the nature, extent and grounds of plaintiff` cause of action.

The declaration also offends rule 13 of the High Court Rules in that it is prolix, fails to disclose the cause of action, and contains attachments.

Special pleas

Lis pendens-the same causa between the same parties is pending litigation in this court under case number HCH 5245/23.

The matter was subject to an arbitration agreement and had been improperly instituted herein.

Plaintiffs lacked locus standi

The matter had prescribed

THE DISPUTE

[3] I will return shortly to the exception and special plea. Essentially, this dispute derives from a series of transactions over a piece of land which for convenience, may be cited as Stand 301 Umtali Township. These transactions, spanning a period of 37 years involve several parties, contracts, deeds of transfer, and financial arrangements as well as buy-back structures. It is a history rich in detail and complexity. I will largely dwell on the common cause matters bearing in mind that the excipients have raised an exception and special plea.

[4] On 30 June 1988 Baxter Paints, by a conditional written agreement, disposed of Stand 301 to an entity known as Hubert Davies Pension Fund (“Hubert Davies”). The condition subsequent was that the parties would structure an arrangement to develop the stand. A second agreement was duly concluded on 28 July 1988 to fulfil the condition subsequent in the earlier pact.

[5] By that second contract, the parties agreed to jointly develop the stand. and create and issue two equal and undivided shares named Share 1 and Share 2 on the stand. A commercial building comprising of offices, storerooms, warehouses ablutions plus ancillary facilities or common areas were established the piece of land.

[6] The parties then executed and registered a notarial deed with the sixth respondent (“the Registrar of Deed”). This notarial deed; -MA348/92, as read with the survey diagram, confirmed the location of Share 1 and Share 2 on the stand. It also regulated title, rights and enjoyment of the stand. The notarial deed recorded Hubert Davies as the “owner” and “declarant”. Part of the declaration provided thus; -

“On the 28th July 1988 the owner and Baxter Paints (Private) Limited, a company with limited liability registered according to the laws of Zimbabwe (hereinafter called “Baxter Paints”) entered into a written agreement for the development of the land and the erection of a building on the land for commercial purposes and the said agreement also provided for the management of the land and the building thereon and that the land would thereafter be owned by the parties in equal undivided shares as more fully appears from a certified copy of the agreement which is hereto annexed marked “A” ( hereinafter called “The Agreement”)

Now therefore the Appearer declared that 2 (TWO) undivided shares in the land are hereby created and numbered consecutively as 1 (One) and 2 (Two) being

Share No.                                                        Percentage

50%

50%

And the Appearer further declared that each undivided share shall, subject to the provisions hereinafter contained, confer upon the registered owner thereof  and its successors in title an exclusive right of occupation of a portion of the building erected on the land identified as Building A on Diagram S.G Number 778/1989 annexed hereto; the said portions being depicted on the plan marked Sheet One of Plan Number 778/1989 also annexed hereto the number of each such portion corresponding with each undivided share in the land and the location of the said building in  relation to the said boundaries of the land being indicated on the said Diagram S.G Number 778/1989.”

[7] Baxter Paints received deed of transfer 4718/93 dated 18 October 1993 as a consequence of notarial deed MA 348/92. Mr and Mrs Chayayi seek an order cancelling both this deed of transfer and MA348/92. The plaintiff aver that neither instrument reflects the true terms of the 30 June 1988 agreement between Hubert Davies and Baxter Paints. From this claim lies part of the special plea of prescription.

[ 8] Baxter Paints sold its interest in Stand 301 (effectively its undivided Share 2 in Stand 301) to Mr. Nhiwatiwa in 2016. Transfer of this share number 2 occurred on 16 April 2016 under title deed 1712/2016. Mr and Mrs Chayayi also seek a cancellation of this title deed and were similarly met with the defence of prescription.

[9] Mr. Nhiwatiwa then sold share number 2 to the Harry Trust in 2018. Harry Trust took title under deed 6473/2022 registered on 7 November 2022. Again, Mr and Mrs Chayayi pray for an order cancelling this title deed.  Whilst the above chronology is common cause, the question of rights, title and interest created by the various instruments is, as already noted, contested.

[10] The crux of the dispute is that Mr and Mrs Chayayi insist that share number 1 relates confers upon them exclusive rights to the building erected on the stand. The 15 November 2018 agreement of sale concluded between the two plaintiffs and Hubert Davies suggests so. In fact, title deed 3133/19 subsequently registered in their favour on 21 May 2015 confirmed that fact.

[11] It did so until a flurry of activities (including litigation) resulted in an endorsement being effected on the deed on 21 February 2020.The Registrar of Deeds inserted the condition that titled deed 3133/2019 reflected ownership in an undivided share in Stand 301 per notarial deed MA 348/92. Mr and Mrs Chayayi also seek to have this endorsement deleted.

THE EXCEPTION.

[12] Curiously, (if not worrisomely) neither side saw it fit to found their argument in heads and submissions on the established principles dealing with exceptions and special pleas. That aside, the legal position is well-settled on the nature and purpose of exceptions and special pleas. In their work, The Civil Practice of the Supreme Court of South Africa (4th ed.), at pp. 471-472, the learned authors Herbsten and Van Winstein observed as follows:

“The essential difference between a special plea and an exception is that in the case of the latter the excipient is confined to the four corners of the declaration. The defence he raises on exception must appear from the declaration itself; he must accept as true the allegations contained in it and he may not introduce any fresh matter. Special pleas, on the other hand, do not appear ex facie the declaration. If they did, then the exception procedure would have to be followed. Special pleas have to be established by the introduction of fresh facts from outside the circumference of the declaration, and those facts have to be established by evidence in the usual way. Thus, as a general rule, the exception procedure is appropriate when the defect appears ex facie the pleading, whereas a special plea is appropriate when it is necessary to place facts before the court to show that there is a defect. The defence of prescription appears to be an exception to this rule, for it has been held that that defence should be raised by way of special plea even when it appears ex facie the plaintiff’s particulars of claim that the claim has prescribed, apparently because the plaintiff may wish to replicate a defence to the claim of prescription, for example an interruption.”

[13] In the recent decision of Kanjere v Old Mutual Life Assurance Company SC 31-24, the Supreme Court recognised that establishing the plaintiff`s cause of action was prerequisite to addressing a special plea. Citing Nan Brooker v Mudhanda & Anor 2018 (1) ZLR 33 (S) at 35G-36A on that aspect, the court concluded thus at paragraph 32; -

“The need for the entire set of facts entitling one to make a claim cannot be over emphasised.   It can be construed from case law that once the cause of action, which is the entire set of facts entitling one to make a claim, is established, and it is ascertained when the cause of action arose, the Court can safely determine whether or not the debt has prescribed.”

[14] It stands to reason therefore that the exception must be addressed ahead of the special plea. If the exception succeeds then it follows that the matter necessarily ends there. The plea-whether dilatory or in bar- must, as shall be seen below, be premised on a plausible, discernible cause of action. I therefore turn to the exception.

[15] The three excipients` complaints over the plaintiffs’ summons and declaration may be clustered under three heads.  Firstly they aver that the summons do not, on their face, disclose a cause of action. Secondly, they allege that the summons are in breach of rule 12 (5) (d) of the High Court Rules SI in that they are not precise and concise.  Thirdly, the excipients also allege that the declaration, again failed to set out cause of action. It was prolix and made improper reference to annexures. These being infractions against rule 13 of the High Court Rules.

[16] I may comment that rule 8 of the Commercial Court Rules defers to the High Court Rules on the issuance of summons. In that regard, summons sued out of the Commercial Court must comply with the provisions of rules 12 (5) (d) and 13 (1) (e) of the High Court Rules. The requirement of rule 12 (5) (d) is replicated on Form CC 1 of the Commercial Court Rules to be used for summons commencing action. I set out hereunder both rules 12 (5) (d) and 13 (1) (e) as well as the direction on Form CC 1; -

Rule 12 (5) requires every summons to set forth in 12 (5) (d); -

“a true and concise statement of the nature, extent and grounds of the cause of action and of the relief or remedies sought in the action;”

Rule 13 (1) (e) requires every declaration to state “truly and concisely”; -

“the nature, extent and grounds of the cause of action.”

Form CC 1 requires every plaintiff to;

“Give a concise statement of the nature, extent and grounds of the plaintiff’s cause of action and of the relief or remedies he seeks.”

[17] This court, per MUSITHU J, commented as follows on the above, especially rule 12 (5) (d), in Chigarira and Ors v ZUPCO Pension and Life Assurance Fund & Ors HH 330-24 at page 8; -

“Rule 12(5)(d) of the High Court Rules, 2021, requires that every summons shall set forth “a true and concise statement of the nature, extent and grounds of the cause of action and of the relief or remedies sought in the action”. Put differently, a plaintiff’s claim must be set out with sufficient clarity to inform the defendant of the exact nature of the case that he or she is required to respond to. The plaintiff is required to plead a complete cause of action which identifies the issues upon which the plaintiff seeks to rely in motivation of the claim.

[18] The standards of pleading set out in rules 12, 13 and Form CC1 are not mere demands for fastidiousness. They serve a practical if not jurisprudential purpose. Firstly, precision and clarity in pleadings help to deliver good order, convenience and efficiency in the courts. Secondly, they oblige a plaintiff to clearly set out its cause of action so as to properly define the parties` controversy. A clear definition of the underlying dispute enables the court to resolve it. Such quest, as shall be seen further below, forms the cornerstone of our justice delivery system.

[19] And so as I take a further step back to the authorities on the nature and purpose of a summons. The learned authors Herbstein and Van Winsen opine as follows in the below passages; -

(i) “Statement of claim

(a)Cause of action to be set out

The object of a summons is not to merely bring the defendant before the court; it must also intimate to the defendant the nature of the claim or demand that he is required to meet. Consequently, it is insufficient to state in the summons merely the relief claimed. The plaintiff must also set out what the cause of action is and on what it is based.” [ Underlined for emphasis]

(ii) “Necessary averments in a summons

(a)General

The summons must further set out a legal ground on which the plaintiff can claim relief, and sufficient details should be given about it to enable the defendant to identify it.”

[20] The summons before me did not advert to the purpose behind the relief sought. They merely listed the nature of the relief prayed for and referred the basis of the claim to the declaration stating that: - “The plaintiffs` claim, as more fully set out in the declaration and summary of evidence attached hereto is for….”. Clearly, the summons did not, on the face of it, lay out the cause of action. They simply outlined the plaintiffs` prayers.

[21] I turn to the declaration. Not only is this pleading guilty of the accusation of being lengthy, convoluted and reading like an affidavit, it does not explicitly set out the cause of action. The plaintiff`s causa is founded on the claim that Mr and Mrs Chayayi purchased rights title and interest in the developed part of Stand 301 Umtali Township.

[22] The corollary being that Harry Trust`s rights and interest are confined to another part of the property other than the commercial building. Yet another way of viewing this claim is that according to Mr and Mrs Chayayi, [ their] Share 1 comprises of the building, and [ Harry Trust`s ]Share 2 relates to some other part of the property.

[23] Mr and Mrs Chayayi acknowledge that their agreement with Hubert Davies was preceded and succeeded by a plethora of other agreements, deeds of transfer, a survey diagram and a registered notarial deed. Mr and Mrs Chayayi`s present declaratory action seeks to subordinate this compendium of legal instruments to their own contract.

[24] Mr and Mrs Chayayi may have a valid reason for laying such claims. But the basis thereof is neither set out in the summons nor declaration with sufficient clarity. Mr and Mrs Chayayi also appear to anchor their rights on the first two agreements between Hubert Davies and Baxter paints. Despite the subsequent consummation of these agreements, Mr and Mrs Chayayi intimate that breach thereof by Baxter Paints gave rise to the rights they now seek to enforce. Further, the said alleged breach is obliquely pleaded.

[25] How the rights created under those agreements appropriate to the plaintiffs is also not clearly borne out in the declaration. Beyond that, Mr and Mrs Chayayi allege that the Registrar of Deeds committed a string of errors in registering the notarial deed as well as title in the various deeds of transfer associated with this stand.

[26] Given the legal position on the presumption of validity of administrative action, (see Econet Wireless (Pvt) Ltd v The Minister of Public Service Labour and Social Welfare & Others SC 31-16) the plaintiffs needed to accentuate their cause of action with clarity. As correctly submitted by Mr Tandiri for the excipients, the plaintiffs did not set out whether the cause of action arose from contract, statute or common law.

[27] What constitutes cause of action is well established, having been articulated in diverse authorities including Peebles v Dairibord Zimbabwe (Pvt) Ltd 1999 (1) ZLR 41 (H). Further, it must be remembered that Mr and Mrs Chayayi herein seen a declaration of rights. This is a special discretional remedy whose requirements were similarly set out in Johnsen v AFC 1995 (1) ZLR 65 (S) at page 72 as follows; -

“The condition precedent to the grant of a declaratory order under s 14 of the High Court of Zimbabwe Act 1981 is that the applicant must be an ―interested person, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The interest must concern an existing, future or contingent right. The court will not decide abstract, academic or hypothetical questions unrelated thereto. But the presence of an actual dispute or controversy between the parties interested is not a prerequisite to the exercise of jurisdiction. See Ex parte Chief Immigration Officer 1993 (1) ZLR 122 (S) at 129F-G; 1994 (1) SA 370 (ZS) at 376G-H; Munn Publishing (Pvt) Ltd v ZBC 1994 (1) ZLR 337 (S) and the cases cited. It was rightly not in contention before the court a quo that the appellant was an interested person. Accordingly, the first stage in the determination of whether it was competent to grant a declarator was met.

At the second stage of the enquiry, the court is obliged to decide whether the case before it is a proper one for the exercise of its discretion under s 14 of the Act. It must take account of all the circumstances of the matter. See Reinecke v Inc Gen Insurances Ltd 1974 (2) SA 84 (A) at 95C; Dyson v A-G Page 73 of 1995 (1) ZLR 65 (H) [1911] 1 KB 410 (CA) at 417; Burghes v A-G [1911] 2 Ch 139 at 156. What, in the end, constitutes a proper case is where some tangible and justifiable advantage to the applicant is shown to exist. See Adbro Invtm Co Ltd v Min of Interior & Ors 1961 (3) SA 283 (T) at 285B-C; Reinecke v Inc Gen Insurances Ltd supra at 93D-E.” [ Underlined for emphasis]

[28] On the basis of the aforegoing, I find the exception meritable. I am however mindful of the principle enunciated in McKelvey v Cowan N.O 1980 (4) SA 525 (Z) where the court held that; -

“It is a first principle in dealing with matters of exception that if evidence can be led which can disclose a cause of action alleged in the pleading, that particular pleading is only excipiable on the basis that no possible evidence led on the pleading can disclose a cause of action.  That is the manner in which I approach this case.”

[29] Herein, I am unable to find how the summons and declaration can be cured by evidence. I am aware of the plea which the excipients have mounted. Indeed in seriatim, they slug it out with the lengthy declaration toe to toe. One may possibly conclude that the defendants were therefore not substantially prejudiced.

[30] But the reason why a proper summons and declaration must found a dispute goes deeper than just judicial tidiness. It attaches itself to the very foundation of litigation in the jurisdiction. I refer to the remarks of CONRADIE J in Levitan v New Holiday Enterprises CC 1991 (2) SA (C) 297 at page 299 A-D; -

“So, even though it might be possible to draft an unobjectionable plea to an objectionable declaration, this might lead nowhere because the pleadings, read together, must contain the outlines of a triable case.  It is the resolution of the parties' dispute that matters. If the effect of the plea is that no intelligible dispute remains there is nothing on which a court can sensibly adjudicate. If a defendant pleads to a plaintiff's particulars of claim in such a way that the remaining disputed facts no longer sustain the plaintiff's claim, there is something seriously wrong with the particulars of claim. This creates embarrassment for a defendant who is now obliged to proceed to trial on a claim which he knows to be bad in law, but to which he cannot except as disclosing no cause of action. Of course, he could at the trial apply to argue the point in terms of Rule 33(4), but this might not protect him from incurring the costs of preparing for trial in case the point is decided against him.”

DISPOSITION

[31] Generally, the plaintiff faced with a successful exception is accorded an opportunity to purge his default. This approach was taken in Levitan v New Holiday Enterprises CC (supra) and recognised in Matewa v ZETDC HH 304-13 and recommended by Herbstein and Van Winsen.

[32] Accordingly, the plaintiffs will be granted leave to file an amended summons and declaration. In closing, I will mention without lingering on the point, that based on established principles and authorities, the first, second and third excipients` prayer for costs on a higher scale are not herein warranted.

It is therefore ordered that; -

The exception raised by first, second and third defendants regarding failure by first and second plaintiffs to set out their cause of action concisely and precisely in the summons and declaration, be and upheld.

The plaintiff`s summons and declaration be and hereby struck off and first and second plaintiffs are granted leave to file, should they be so advised, an amended summons and declaration complying with the rules of court, within 14 days from the date of this order.

Thereafter, the matter to proceed in terms of the rules.

First and second plaintiffs, jointly or severally the one paying and the other being absolved, to meet first, second and third defendants` costs.

MC Mukome Legal Practitioners-plaintiffs` legal practitioners

Tandiri Law Chambers -first, second and third defendants` legal practitioners

[CHILIMBE J___11/10/24]