Innscor Africa Limited t/a Bakers Inn Bakeries v Thomas Meda

### Preamble
IN THE LABOUR COURT OF ZIMBABWE
JUDGMENT NO. LC/H/…/2020
HARARE, 3 NOVEMBER 2020
CASE NO.
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IN THE LABOUR COURT OF ZIMBABWE      JUDGMENT NO. LC/H/…/2020

HARARE, 3 NOVEMBER 2020		             CASE NO. LC/H/APP/210/20

AND 27 NOVEMBER 2020

In the matter between:-

INNSCOR AFRICA LIMITED T/A			Applicant

BAKERS INN BAKERIES

And

THOMAS MEDA						Respondent

Before Honourable B.S. Chidziva, Judge

For Applicant		Mr A. 	Dracos (Legal Practitioner)

For Respondent		Mr Itai Simbi (Trade Unionist)

CHIDZIVA, J:

This is an application for leave to appeal against the decision of this Court that was handed down on 3 July 2020. In its judgment this Court ordered the Applicant to pay Respondent damages in the sum of US$10 328-00.

The Respondent has raised the following point in limine.

That the application is improperly before this Court because Applicant has cited itself as Innscor Africa Limited t/a Bakers Inn Bakeries instead of Innscor Africa Bread (Pvt) Limited as appears from the judgment under case LC/H/145/20.

It is the Respondent’s argument that the applicant is improperly before this court because it was never a party in the proceedings for quantification of damages in lieu of reinstatement.

In response the Applicant submitted that Respondent’s argument that Applicant should have wrongly cited itself is without merit. Applicant further submitted that Respondent is inviting the Applicant and this Court to perpetuate an illegality. The Applicant argued that Respondent sued Applicant as Innscor Bread Company Zimbabwe. At the relevant time there was no such entity and to date there is no such entity.

It is this court’s view that the applicant referred to in these proceedings was never a party to the proceedings for quantification of damages. The applicant was also not a party to the appeal proceedings under case number LC/H/155/18. In the appeal proceedings the applicant answered to the name Innscor Africa Bread Company Zimbabwe (Pvt) Ltd.

It is a trite principle of law that an improper citation renders the proceedings a nullity.

In the case of Macfoy v United Africa Co Ltd (1991) 3 ALL ER 1169 at 11721 it was stated that,

“If an act is void then it is in law a nullity. It is not only bad but incurably bad … and every proceeding which is founded on it is also bad and incurably bad.  You cannot put something on nothing and expect it to stay there. It will collapse.”

In the case of Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (H) is was stated that

“A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the name in the summons as being those of the Defendant the summons is null and void abnitio.”

Applicant answered to the original name in the appeal proceedings. The court therefore went on to issue out a judgment in this court.

It is this judgment and the judgment that the applicant would like to appeal against.  In the initial proceedings the applicant never informed this court that this company was no longer in existence.  The applicant never stated when the new company came into existence. Applicant has already paid $10 328-00 towards the judgment for quantification.

In the circumstances therefore this court finds that the point in limine is merited.

It is therefore ordered that,

The point in limine be and is hereby upheld.

The application be and is hereby struck off the roll.

Applicant shall bear costs.

Honey & Blanckenberg, applicant’s legal practitioners