M.O.B. Capital (Pvt) Ltd v Tererai Edwin Chabata and Lynette Chabata

### Preamble
1
HB 91/19
HC 356/16
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M.O.B. CAPITAL (PVT) LTD

Versus

TERERAI EDWIN CHABATA

And

LYNETTE CHABATA

IN THE HIGH COURT OF ZIMBABWE

TAKUVA J

BULAWAYO 12 JUNE 2018 & 13 JUNE 2019

Opposed Application

Advocate S. Siziba for applicant

H. Shenje for respondents

TAKUVA J:	This is an application to compel respondents to supply applicant with further and better particulars.  The factual background is that the applicant was served with summons in the main matter under HC 3415/15.  Before the dies induciae had expired, applicant filed a request for further particulars, which particulars were duly supplied.  Subsequently, the applicant did not file a plea or some answer to the claim as required by the rules.  Instead, it filed yet another request for further and better particulars. The respondents refused to supply those particulars arguing that they were purely evidential in nature.

The applicant then filed this application seeking an order in the following terms:

“1.	Respondents be and are hereby ordered to supply further and better particulars to applicant within five (5) days of service of this order being served on Messrs Shenje and Company, the legal practitioners for the respondents.

2.	In the event that the respondents fail to comply with paragraph one (1) above respondents’ claim in case number 3415/15 be and is hereby dismissed with costs at an attorney-client scale.”

In order to appreciate what is happening, I decided to lay out the background facts in extenso.  On 18 December 2015 respondents issued a summons against applicant for

(a)	Payment in the sum of $24 380,00 being the balance due in respect of certain funds placed by the plaintiff with the defendant under a mutually greed investment facility on or about the month of January 2014 and which investment has now been cancelled by the plaintiffs rendering the full invested amount due and which amount despite demand, the defendant now refused or rejects to pay.

(b)	Interest thereon calculated at the prescribed rate from the date of summons to the date of final payment; and

(c)	Costs of suit on attorney and client scale.”

In their declaration, the respondents indicated that there was a mutually agreed investment facility whereby the invested funds were to earn interest at the rate of 7.5% per month.  Pursuant to that agreement, they on 3 January 2014 placed a sum of $10 000,00. Further, on 7 January 2014, the respondents placed the sum of $42 940,00 with the applicant’s CBZ Bank account.  The amount was transferred through an electronic funds transfer.  Of the total, the defendant paid the sum of $25 000,00.  Paragraph 9 of the declaration states thus;

“9.  As at the 30th September 2015 the plaintiff advised the defendant of the cancellation of the investment arrangement and demanded payment of the full amount now due on the funds invested, in the sum of $24 380,00 broken down as follows:

Capital	$18 300,00

Interest	$6 000,00”

After entering appearance to defend applicant requested for further particulars as follows:

“(2)	Ad par 5

A copy of the alleged investment facility agreement is hereby requested

When and how was the investments (sic) of $10 000,00 paid to the defendant copies of such proof of payment is hereby requested.

Who was representing the defendant?

Did 1st plaintiff and defendant have any other business relationship.

Copies of the agreement of the 2nd investment is also required and the electronic funds transfer

Is it correct to state that the total capital amount alleged to have been invested to the defendant is US$52 940,00 and the outstanding capital sum is US$18 300,00.

How and to whom was the US$25 00,00 paid to?

Has plaintiff ever been indebted to the defendant?”

Upon receipt of the request, respondents supplied the particulars in the following manner.

“1.	Ad Par 2(a)

The agreement as the plaintiffs’ declaration clearly provides was mutually agreed between the plaintiffs’ and the defendant.  It was in essence a verbal agreement between the 2nd plaintiff and the defendant, duly represented by Morris Mpala.

Ad par 2 (b)

WHEN

As the plaintiffs’ declaration also specifically provides the investment of $10 000,00 was made on 3 January 2014.

HOW

Through a cash deposit which the defendant through Morris Mpala, acknowledged in writing as shown on annexure ‘A’ hereto.

Ad par (c)

Morris Mpala was representing the defendant.

Ad par 2 (d)

No. In any event this would be irrelevant to the issue of whether or not the 1st plaintiff placed funds with the defendant in person, or jointly with the 2nd plaintiff.

Ad par (e)

The requested documents are here attached marked annexures “B” and “C”.

Ad par (f)

Yes by virtue of the fact that the plaintiffs in mutual agreement with the defendant drew down interest earned on the facility.  In fact after the initial transfer of $46 940,00 the defendant then paid the sum of $25 000,00 to Net Seven Real Estate on behalf of the plaintiff.  The remaining balance was the sum $17 940 in respect of which the plaintiff drew down the sum of $3 000,00.  The balance in the sum of $14 940 was duly acknowledged by the defendant through its representative Morris Mpala in terms of annexure “D” hereto.

Ad par (g)

The amount of $25 000,00 was paid to Net Seven Real Estate then agents for one Simon Fayindani in a transaction in which the plaintiffs wanted to purchase Fayindani’s immovable property.  The said amount was transferred from the defendant’s CBZ account number 645611270012 into Net Seven’s Standard Chartered Bank account number 8700241524100 on the 9th January 2014 as annexure “B” shows.

Ad par (h)

No”

Despite having been supplied with the above particulars, applicant still felt they were inadequate to enable it to plead to plaintiff’s claim.  As a result it sought what it terms “request for further and better particulars” in the following manner;

“1.	Ad par (c)

If indeed Morris Mpala was representing the defendant as alleged by the plaintiffs, why did the plaintiffs accept to be issued with receipts that do not belong to the defendant and further in plaintiff’s own writing indicate that the purpose of the transfer was for the purchase of a house to Morris Mpala?  Why didn’t the plaintiff clearly indicate that the purpose of the transfer was an investment to the defendant as alleged?

2.	Ad par (f)

It is now been alleged (sic) by plaintiff that a total sum of US$67 880,00 was invested broken down as follows;

US$10 00,00

US$42 940,00

US$14 940,00

(b)	How is the capital sum of US$18 300,00 arrived at?

(c) Of the total sum alleged to have been invested to the defendant, when was the 1st payment due in terms of the alleged verbal agreement and how much was it.”

The request was filed on 25 January 2016 and respondents declined to supply these particulars leading to this application which the respondents opposed vigorously.  The grounds for opposition are that, firstly the request was not filed with the bona fide intention of placing the applicant in a position to plead on the merits.  Secondly the particulars requested were adequately pleaded in the declaration and were in any event, in the possession and knowledge of the applicant at all material times.   Thirdly that the application is a blatant abuse of process warranting dismissal with punitive costs.

In my view, the respondents are absolutely correct in their conclusions.  The applicant is simply toying around with figures it claims do not “mathematically sum up”.  In doing so the applicant alleges in its heads of argument par 9 that “clearly from the above, respondents’ claim appears not to mathematically sum up as the difference between the invested amount of US$52 940,00 and the alleged paid amount of US$25 00,00 does not sum up to US$18 300 but US$27 940,00.”  The applicant’s calculation is not “mathematically” or is it arithmetically correct in that it excludes a figure of $3 000,00 which was disclosed as a draw down.  If this figure is deducted from$27 940,00 one is left with a figure of $24 940,00.  The respondents have claimed a figure of $24 380,00 which is $560,00 less than the $24 940,00.  These figures can only be understood or clarified by evidence in view of the nature of the parties’ relationship.  Amounts were deposited and withdrawn on the basis of an oral agreement. Interest was added on at different times.  The capital invested kept on changing.

At this stage, the bottom line is not about mathematical exactitude or inexactitude but about an oral agreement that facilitated the investment and withdrawal of funds as capital or interest.  The respondents have claimed a specific amount that they says is due and owing.  If the applicant is disputing the amounts invested or paid out then it must say so in its plea.  The applicant’s latest request for further particulars as captured in paragraph c relating to the role played by its agent one Morris Mpala demonstrates clearly that this information is within its knowledge and possession.

Apparently, applicant is challenging the mandate of its officials who entered into the investment deal with the respondents.  How the applicant would carry out its “internal investigations of the claim,” or what such investigation might yield, would be entirely of no consequence to the respondent and indeed to the rules of procedure pertaining to the filing of a plea.  Equally irrelevant for purposes of filing a plea, is the extent of the debt which is an evidential issue to be ventilated during the trial.  Clearly, the request is for particulars which are not necessary to enable the applicant to plead.

The applicant was furnished with detailed particulars showing the undisputed fact that the respondents transferred specific sums of money into applicant’s specified account.  Also, the respondents also showed that the applicant at their request transferred a certain specific amount of money to a third party, and remained with a balance in its account.

The applicant has failed to indicate how it is handicapped from pleading in circumstances where a specific figure is mentioned in the summons and declaration.  If according to information it has, applicant believes it does not owe respondents the amount claimed at all, it must put that as its answer to the claim.  If it believes it owes a lesser amount than that claimed, it must say so in its plea.

The applicant’s conduct is similar to that commented by NDOU J (as he then was) in Judith Malume v Nelson Zhou HB-85-07 wherein the learned judge said;

“Furthermore even the merits of the request for further particulars are questionable.  Two of the particulars sought have been sufficiently particularized in the declaration.  Everything that she is asking for is at her disposal from the written agreement and the plaintiff’s declaration served.  She was obviously not handicapped from filing her plea.  If she was, she as not bothered to inform me how she was so handicapped.  This procedure is designed to remove a procedural step.  A party who abuses this procedural step of request for particulars does so at his/her own peril.”

In casu, the respondents’ case had clearly been particularized in the declaration.  Notwithstanding such clarity, the respondents went an extra mile to provide particulars which were evidently within the knowledge and possession of the applicant, the funds having been transferred in a specified company account.

In the circumstances, I find that the respondents were entitled to ignore the applicant’s second request for further and better particulars since they are not only irrelevant but also unnecessary for the purposes of pleading.  As regards costs, I find that this application was not filed with the bona fide intention to place the applicant in a position to plead to the case on the merits but to waste time and frustrate the respondents.

Accordingly, it is ordered that:

The application to compel the supply of further and better particulars be and is hereby dismissed.

The applicant be and is hereby directed to file its plea in terms of o21 r142 (c) of the High Court Rules 1971.

The applicant be and is hereby ordered to pay costs of suit at attorney-client scale.

Messrs Ndove, Museta & Partners, applicant’s legal practitioners

Messrs Shenje & Company respondents’ legal practitioners