James Stewart Drynan v Zimbabwe Electricity Transmission and Distribution Company

### Preamble
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HMT 11-19
HC 18/18
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JAMES STEWART DRYNAN

versus

ZIMBABWE ELECTRICITY TRANSMISSION AND

DISTRIBUTION COMPANY

HIGH COURT OF ZIMBABWE

MWAYERA J

MUTARE, 26 September 2018

Chamber Application

MWAYERA J: On 28 September 2018, I removed the chamber application from the roll. The applicant has not sought the reasons for my decisions to remove the matter from the roll but has written letters seeking to convince the court to revisit the matter and grant the chamber application despite his none compliance with the court directives. The reasons for the removal of the matter are outlined herein.

It is imperative for the brief background to the matter to be highlighted. On 28 May 2018, plaintiff issued summons against the defendant claiming the following:

Repayment of USD 7 618.83 over charge for electricity.

Electricity credit of USD 5 230.31 on prepaid metre number 37 13251859.

Damages of USD 3 800 per calendar month from 10th October 2016 until date of repayment and credit of (i) and (ii) above, respectfully being rental charges of premises Sabi Star Restaurant on Xmas Pass.

Annexed to the summons is a document written “DECLARATION” which I need to

reproduce as is:

“DECLARATION

The defendant falsified the plaintiff’s domestic meter reading on meter No. 366697 from 218429 to 187698 between 27th May 2009 and 30th June 2009 resulting in an overcharge of $3 650.40, and the plaintiff’s commercial meter reading on meter No. 245305 from 195407 to 139238 between 29th March 2010 and 23rd April 2010 resulting in an overcharge of $9 339.31 from which overcharges is to be deducted $ 140 17 for electricity consumed, but not paid as at 10th September 2014, at which time the meters were forcibly replaced by the defendant. The total overall overcharge was thus $12 849.14.

Between September 2014 and 8th October 2016 the defendant deducted the sum of $7 618.83 from the plaintiff’s pre-paid electricity payments, on which latter date the defendant deducted $1 000 against pre-paid meter No. 37 1325 1859 and issued a pre-paid token for 200 units of electricity. $400 of the $1000 was paid by the plaintiff and the balance of $600 was paid by OK Mart, to whom the plaintiff remains indebted for that sum.

The plaintiff was unable to make any further payment to the defendant and the electricity supply to the Sabi Star Restaurant was terminated on 10th October 2016, rendering the restaurant inoperative.

I addressed letters to the defendant on 10th October 2016, 27th November 2016, 17th January 2017 and 3rd February 2017 seeking to have the matter resolved, but to no avail, as the defendant failed to respond to any of my letters.

I have found it necessary to delay the issue of this summons until the opening of the Mutare High Court because I do not have the financial resources to travel to the Harare High Court.

(Signed)

James Stewart Drynan

Plaintiff”

After the plaintiff had served the copy of the summons on the defendant, he came to court on 18 June 2018 and delivered a letter to the Deputy Registrar which letter again needs copying in extenso and reads:

“I will be grateful if you will bring the contents of this letter to the attention of the Honourable Judge.

Accompanying the letter is a chamber application for a judgment in default by the defendant of entry of appearance to defend. However, I am a British investor and this matter is monitored by the British Embassy in Harare and it would therefore be preferable for the matter to proceed to trial.

Accordingly, if the defendant files and serves a substantive plea within the line prescribed in the Rules of the High Court from the time of receipt of copy of this letter I will voluntarily waive and abandon the default judgment and the matter may then proceed as if an appearance had been entered.

I trust this undertaking us acceptable to the Court.

Yours faithfully

(signed)

J.S DRYNAN

Plaintiff

cc Commercial Manager: ZETDC- Megawatt House.”

Attached to the letter was document citing the case number the parties and signed by the plaintiff dated 18 June 2018 where the following was written:

“Application is hereby made for an order in terms of the draft order attached to this application on the grounds that the Respondent/ Defendant is in default of entry of appearance to defend,”

A draft order was attached as well as the copy of the summons but the proof of service was not. The Deputy Registrar wrote a letter to the plaintiff on the same date of 18 June 2018 directing him to make an application for default judgment in terms of the Rules of the High Court. On 2 July 2018, the chamber application for default judgment was brought to me and I remarked on the face of the application as follows:

“Registrar

Proof of Claim: Summons does not have a declaration specifying particulars of claim. Page 5 headed “Declaration” is a letter.

On the 11th July 2018 the plaintiff submitted a fresh chamber application with a new Declaration attached and I then directed that the plaintiff reserve the Summons containing the new Declaration, on the defendant and file proof of service and that is when further problems emerged. Although the record shows that the plaintiff had difficulties in filing his papers, that does not concern the court for he corrected the errors but refused to reserve the Summons together with the new declaration. Plaintiff insisted that the defendant had already been served and was in default. The plaintiff then started to write letters to this Court, to the Deputy Registrar as well as to the Chief Justice lecturing to all sundry about proof of service, Rules of this Court as well as defining “a debt” or “liquidated demand” meaning of chamber application and opposed application. He also cited decided cases to convince the court to grant, the default judgment. The plaintiff launched a vitriolic attack on the Deputy Registrar, myself and the judicial system at large. It then dawned on me that there was need to clarify the law and the legal basis of why the chamber application for default judgment was removed from the roll.

Order 9, Rule 58 of the High Court Rules; 1971 applies to the matter before me and provides as follows:

“58: Claim other than for debt or liquidated demand and no appearance entered:

In cases where the plaintiff’s claim is not for a debt or liquidated/demand only, and the defendant has failed to enter appearance after the period prescribed in the summons for entering appearance, the plaintiff shall file and serve his declaration if he desires to obtain judgment.

Where the defendant remains in default, the plaintiff may after the expiry of ten days from the date of service of the declaration set down the case for judgment on an appropriate date specified in Subrule (1) of rule 223 without notice to the defendant, and thereupon, subject to rule 60, the court may grant judgment or make such order as it considers the plaintiff is entitled to upon the summons or declaration.” (My emphasis).

A chamber application is made by an entry in the chamber book in Form 29B and it is

important to note that the plaintiff’s chamber application does not meet the requirements of Form 29B, however, since the plaintiff was a self-actor, the Deputy Registrar and the court allowed the chamber application to be issued. For the benefit of the plaintiff, a chamber application for default judgment must appear as below:

“Heading

CHAMBER APPLICATION FOR DEFAULT JUDGMENT

The Plaintiff hereby applies that:

The Summons having been issued on……..

the Defendant having been duly served on………

the Defendant not having entered an appearance to defend timeously

Judgment may be entered for the Plaintiff as claimed in the annexed order.

DATED AT MUTARE THIS……… DAY OF ………….2019.

Conclude”

And the order for default judgment, should at least be as follows:

Heading

ORDER FOR DEFAULT JUDGMENT

MUTARE: The             day of                  2019.

Before the Honourable Mr(s) Justice

In Chambers

WHEREFORE after reading documents filed of record

IT IS ORDERED THAT:

The Defendant shall pay the Plaintiff the sum of $...... together with interest on that sum at the rate of ………. percent per annum from…… to the date of payment.

The costs of this application shall be paid by the Defendant.

By the Judge

Deputy Registrar”

Where the plaintiff is claiming damages and non-liquidated claims as on this matter,

default judgment will only be granted where the plaintiff has filed an affidavit proving the claims made by him more particularly when the court looks at item (iv) of the plaintiff’s summons, where plaintiff is claiming damages of US$ 3 800 per calendar month from 10 October 2016 until the date of repayment and credit (i) and (ii) above respectively, being rental charges of premises Sabi Star Restaurant on Xmas Pass.

After the filing of the Declaration by the Plaintiff, in terms of Rule 58 of Order 9, the plaintiff was obliged to serve that declaration on the defendant and he failed to do so. It was not appropriate for the plaintiff to deliberately refuse to abide by the Rules of this court. It is the duty of all litigants to abide by the Rules set by the court and non-compliance of the Rules leads to dismissal of claims.

The record shows that the plaintiff instead of serving the defendant was literally directing this court to ignore the provision of the Rules and proceed to grant the default judgment. Instead of complying with the Rules, and directives of the court the plaintiff opted to write volume after volume of letters complaining about both administrative issues and ignorance of Rules applicable to these matters at the instance of the courts. It was really sarcastic to hear plaintiff allege as such when he was apparently neglecting to abide by the rules and see to it that he gets his intended relief.

It was because of this blatant refusal by the plaintiff to abide by the Rules and court directives that the court removed the chamber application from the roll. See the matter of Matanhire v BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S) and S v Ncube 1990 (2) ZLR 303 (SC).

In the result, it is ordered that:

The matter be and is hereby removed from the roll.

Applicant in person

Zimbabwe Electricity Transmission and Distribution Company, Respondent