Sindikumbuwalo Pacifique v The Commissioner General Department of Customs and Excise

### Preamble
1
HH 137-18
HC 13196/12
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SINDIKUMBUWALO PACIFIQUE

versus

THE COMMISSIONER GENERAL

DEPARTMENT OF CUSTOMS AND EXCISE

HIGH COURT OF ZIMBABWE

MUNANGATI-MANONGWA J

HARARE, 5 February 2018 & 14 March 2018

Trial

Adv E Mubaiwa for the plaintiff

Ms C Malaba for the defendant

MUNANGATI-MANONGWA J: The plaintiff instituted a claim against the defendant claiming the return of USD $40 000-00 and interest thereof purportedly seized from the plaintiff unlawfully by the defendant in 2011. Appearance to defend was entered on behalf of the defendant by Zimbabwe Revenue Authority Legal & Corporate Services. The matter progressed up to trial stage and on the date of the hearing the defendant raised a point in limine being that there is no defendant before the court.

The defendant argued that the plaintiff had cited a wrong entity and most important so it was argued, the defendant cited by the plaintiff is non-existent. That being so, the entire proceedings before this court are null and void ab initio. The proceedings being a nullity the plaintiff could neither amend nor apply to substitute the defendant. Hence it was submitted by the defendant that the claim ought to be dismissed.

The plaintiff opposed the point of law on the basis that the point raised by the defendant ought to have been raised as an exception. Further, that ZIMRA was not competent to file the pleadings on behalf of the defendant as it is a body corporate with the same legal character as a company hence it cannot file pleadings in this Honourable Court. That being so, the plaintiff moved for the striking out of all pleadings filed by ZIMRA and consequently the granting of default judgment. The plaintiff further submitted that as ZIMRA had participated on behalf of the defendant the court could grant a joinder in terms of r 87 (2) of the High Court Rules 1971 for the purpose of ensuring that the real dispute between the parties is resolved.

The question whether or not there is a defendant before the court is a critical point of law. A court cannot proceed to hear any matter on merit unless satisfied that there are parties before it who seek resolution of a dispute resulting in a competent decision which is binding upon the parties. Critical as it is, a point of law can be raised at any time. I do not believe that the issue of whether or not there is a defendant before the court has to be raised through an exception. In Muchakati v Netherburn Mine 1996 (1) ZLR 153 (S) the Supreme Court held that a point of law that went to the root of the matter can be raised at any time. Apart from a litigant raising same the court can raise it mero motu.

I am convinced that the issue raised need not be brought up as an exception. Yes, if successfully brought up it would have the same effect as an exception that is, dispose of the matter without going into the merits. Thus such a point can simply be brought up anytime during the proceedings on notice to the other party.

The citation of the defendant as “The commissioner General Department of Customs and Excise” is the one in contention since it is argued that there is no such person at law answering to that title. Certainly there is the office of the Commissioner-General created in terms of section 19 of the Revenue Authority Act [Chapter 23:11]. Further, there is an office of Commissioner in charge of customs and excise as per the definitions provided in s 2 and 3 of the Customs and Excise Act [Chapter 23:02]. The definition of “Commissioner” in the Customs and Excise Act reads:

“Commissioner” means—

(a) the Commissioner in charge of the department of the Zimbabwe Revenue Authority which is declared in terms of the Revenue Authority Act [Chapter 23:11] to be responsible for assessing, collecting and enforcing the payment of duties in terms of this Act; or

(b) the Commissioner-General of the Zimbabwe Revenue Authority, in relation to any function which he has been authorised under the Revenue Authority Act [Chapter 23:11] to exercise;

However the Commissioner-General is the overall official in charge. Hence there is officially the office of the Commissioner-General and he is in charge of Customs and Excise although his office is created by the Revenue Authority Act. The State Liabilities Act [Chapter 8:4] provides in s 4 thereof that if a public official is cited in his official capacity he shall be cited by his official title. To then say a Commissioner-General does not exist is not correct. The issue may however be, whether in the circumstances he is the appropriate defendant.

It is not being denied that the plaintiff’s money was seized by officers in the department of Customs and Excise. The question is whether the Commissioner-General as described can be sued for that.

Section 3 of the Revenue Authority Act provides as follows:

“There is hereby established an authority, to be known as the Zimbabwe Revenue Authority, which shall be a body corporate capable of suing and being sued in its own name and subject to this act, of performing all acts that bodies corporates may by law perform.”

I agree with the respondents that it follows that this entity must be sued in proceedings relating to the administration of any legislative instruments falling under its purview. Apparently the Customs and Excise Act does fall under its purview. The question however is, can the Commissioner General not be dragged to court whether alone or together with ZIMRA. His office is created through statute unlike the case in JDM Agro-Consult and Marketing (Pvt) Ltd v Editor of the Herald Newspaper and Anor HH 61/2007 where the court held that there is no official person known as the Editor of the Herald.

In reading through the plaintiff’s submissions the court did not find any submissions directly dealing with whether the Commissioner-General is a legal persona capable of being sued.

Instructive is (the) s 19 (4) which spells out the Commissioner General’s responsibilities and it reads:

“The Commissioner-General shall be responsible; subject to the Board’s Control, for-

Supervising and managing the authority’s staff and

Performing such other functions as the Board may assign to him or as may be conjured or imposed on him by or under this act or any other enactment.”

This to my mind means the Commissioner–General is answerable to the Board. In managing the authority’s activities he will be doing such duties on behalf of the Board and in turn the board controls and manages the operations of ZIMRA. That being so, I am convinced that the Commissioner-General cannot be cited personally in an action where the authority’s employees’ actions are complained of. In any case s 3 of the Revenue Authority Act provides the legal status of ZIMRA and provides that ZIMRA is a body corporate capable of suing and being sued. It is therefore ZIMRA which should have been cited irrespective of the fact that the issue pertains to provisions of the Customs and Excise Act.

Of note is the fact that there is no allegation that the Commissioner-General personally acted in a manner leading to the institution of legal action. Rather it is the conduct of the authorities’ employees which is under scrutiny. That being so, the Commissioner- General cannot be liable, rather the authority see Hardlife Matide v Chairman of the Public Service Commission and Another HH 90/98, Tredgers Industries (Pvt) Limited v Commissioner-General of the Zimbabwe Revenue Authority HH 83/06.

Any collection of revenue under the Customs and Excise Act is done on behalf of the authority and needless to say taxes go into the authority’s coffers and are collected by the authority. Section 4 (1) is clear that the authority acts as an agent of the State in assessing collecting and enforcing the payment of all revenues. Whilst such functions are performed by the authority’s officers it is done on behalf of the authority and it is the authority which ultimately is answerable.

I therefore find that the Commissioner-General was wrongly cited, and that being so there is no defendant before the court. Consequently, the point of law raised is upheld, the respondent succeeds and that is cause for dismissal of the claim.

It is however imperative to state that the fact that ZIMRA had entered appearance to defend and filed a plea on behalf of the purported defendant has no legal effect on the proceedings which were void ab intio for want of a second party to the dispute. The submissions by the plaintiff that the appearance to defend and subsequent pleadings were invalid hence it is entitled to judgement does not hold. In this regard I refer to Gowora J (as she then was) when in JDM Agro- Consult and Marketing (Pvt) Ltd v The Editor of the Herald Newspaper and Anor HH 61/07 at p 5 of her cyclostyled judgment stated as follows:

“It matters not in my view that the two defendants entered appearance to defend and proceeded to file a plea. The process of filing pleadings under these names would not have imbued the summons with any form of legality. There was no summons for then to pleas given that there were no persons answering to the names of the summons. This is a mis-description which can be amended by alteration of the names on summons nor is it’s a substitute something which does not exists.”

There being no defendant to answer to the claim the proceedings were thus a nullity. This equally addressed the argument by the plaintiff that by participating in the proceedings ZIMRA was applying for joinder, to be joined to what proceedings, when the proceedings were a nullity.

The court was enjoined by the plaintiff to invoke the provisions of r 87 (2) (b) of the High Court Rules and join ZIMRA as a party. Rule 87 (2) reads

“2 	At any stage of the proceedings in any cause or matter the court may on such terms as it thinks just and either of its own motion or on application

Order any person who ought to have been joined as a party or whose necessary to ensure that all matters in dispute in the cause or matter may be effectively and completely determined and adjudicated upon, to be added as a party but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorised.”

I am convinced that this avenue is open to the court or a party when the proceedings before the court are valid. There has to be proper parties before the court, that is a plaintiff and a defendant in the legal sense. It is upon the realisation by the court, that, the dispute to be resolved can only be effectually and completely determined and a competent order granted with the participation of the person to be added, that the rule can be invoked. The rule or provision cannot be utilised where there is only one party to a suit, as there can be no dispute to be resolved or adjudicated when there is only one party to the proceedings. In that regard this case is not the contemplated instance where the rule is brought into play.

This case brings to the fore the grave mistake which legal practitioners always commit, failure to ensure that the right parties to a dispute are cited. The starting point in my view is “whether there is a cause of action arising from facts supplied by a client?” the next question would be “against who does the cause of action arise?” Where statutory bodies are concerned a legal practitioner cannot or should never proceed to draft let alone issue out process without checking the provisions of the statute. Equally where companies are concerned the nature of the entity must be verified. There can be no negation of duty as worse as failing to check on whether the intended adversary can properly be brought to court.  This is so because the prejudice to a client who may have had a good case may be immense due to lack of diligence on the part of a legal practitioner.

Equally when legal practitioners seek to defend a litigant it is incumbent upon counsel to verify whether the process is valid, whether there are parties before the court. To participate in proceedings by way of defending them up till trial stage as what transpired in this case without realising that there is only one party to the proceedings points towards lack of diligence. Legal practitioners are called upon to be diligent, conscientious, be abreast with developments in the legal field especially be alert to pronouncement by the courts. The issue of citation of the Commissioner-General of ZIMRA in circumstances akin to this case was long decided by the courts as far back as 2006, and, several judgments up to year 2017 have dealt with this issue. Whilst the defendants have been successful in raising the point in limine I find that it is necessary to censure them by denying them costs. The clients’ time and the court’s time and resources could have been saved had this issue been raised earlier. This case was instituted in 2012 and it has taken 6 years for defendant to raise this issue. Yes, it is a point of law which can be raised at any time during the proceedings, but failure to reasonably raise same within a reasonable period of time should attract a penalty. Accordingly I find that the defendant is not entitled to costs due to the aforegoing reasons.

It is therefore ordered as follows:

The plaintiff’s claim is dismissed.

Each party to bear its own costs.

V. Nyemba & Associates, plaintiff’s legal practitioners

Kantor & Immerman, defendant’s legal practitioners