Clayton Mhonyera v Gift Mufambwa

### Preamble
1
HCC10/23
HC61/23
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CLAYTON MHONYERA

AND

GIFT MUFAMBWA

Of number 9363 Ruvimbo, Chinhoyi, Zimbabwe

HIGH COURT OF ZIMBABWE
BACHI MZAWAZI J
CHINHOYI, 6 April – 13 April 2023

Opposed Application

F. Murisi, for the Plaintiff
Saizi, for the Defendant

Introduction

BACHI-MZAWAZI J: Applicant issued summons for provisional sentence with an attached acknowledgement of debt on the 22nd of February 2023, as dictated by rule 14(1) and (4) of the 2021 High Court Rules.

The summons was duly served on the defendants evidenced by their response in terms of rule 14(2) and (7) of the rules mentioned above.  Defendant alleged that the acknowledgement of debt in the form of an affidavit was signed under duress.

Defendants case

Defendant does not deny signing the acknowledgement of debt and its validity but challenges the same on two grounds. Firstly, he states that the affidavit was entered into under duress.  The amounts reflected therein are usurious, inflated and exaggerated as they did not reflect the actual amount he borrowed and the attendant interest.

He further avers that the capital debt he owed which he had borrowed amounts to US$2 300,00 to be paid with an additional interest of 35% translates to total amount of US$3105.00 according to his calculations.  The amount was to be paid back in three instalments of US$500.00, US$1200.00, US$600.00 respectively.  Respondent advances of that amount he has paid to date is US$900.00 and his outstanding balance is US$2205.00.  The defendant did not provide the dates upon which the agreement of the amount he acknowledges was entered into, as well as those when the three instalments were supposed to be paid or how interest was supposed to run. His further attack on the Plaintiffs acknowledgement of debt is that when he signed it reflecting the amount borrowed as US$13 690, thirteen thousand six hundred and ninety-six dollars, that transaction was not done before a Commissioner of oaths.  He further asserts that the stamps appearing on the document does not comply with the rules governing commissioning of documents.  It is his argument that the name of the Commissioner of oaths does not appear as well as the rank.  In addition, the commissioning was done after the signing event not before the Commissioner of the oath as required by the law.  Also, that it was not indicated whether the person who commissions fell within the ranks of those who are supposed to commission documents.

In court, the counsel for the defendant motivates the same argument but did not provide authority to buttress his argument.  Instead, they introduced a new twist that the defendant residential property documents had been withheld by the plaintiff forcing him to sign or append his signatures to the liquid document.

Plaintiff’s case

The Plaintiff maintained that in terms of the law governing provisional sentences their action is above board.  From their perspective defendant was only raising dust by raising academic issues which do not impede the effect of his action. He claims he has a document which fits the description of a liquid document bearing the signature of the defendant as such the defendant has no excuse as he signed acknowledging the contents of the document.

Issues

The issues that lie before the court are whether not the plaintiff has satisfied the requirements of a provisional sentence?

Secondly, whether or not the defendant has advanced a plausible defence to the provisional sentence proceedings?

An exposition of the law, facts and evidence

In analysis of the law and the submissions by the parties against the evidence on record, it is trite that a provisional summons is a method whereby a plaintiff obtains speedy remedy in recovering the money owed to him thereby curtailing the trial procedure.  This is only possible where there is clear cut evidence in the form of a liquid document, acknowledgement of debt letter or any authentic uncontested written evidence that qualifies as a liquid document in terms of the law.  Rule 14(1) of the High Court rules 2021 states that, where the Plaintiff is the holder of a valid acknowledgement of debt, commonly called a liquid document, the Plaintiff may cause a summons to be issued claiming provisional sentence on the said documents.  Thus, a provisional summons is instituted by the issuance of summons calling upon the defendant to appear in Court on a given day and affords the defendant an opportunity on days stipulated under rule 14(2) and 7 to deny liability within a given period.  See Sibanda v Mupaidze 2010(1) 2LR.

What a liquid document is, was pronounced by Mathonsi J (as be then was) in the case of Sibanda Mushapaidze 2010(1) 2LR 216 (H) at above 218 as, “Any clear, unequivocal and unambiguous written promise to pay a debt constitutes a liquid document.  Thus, any letter to the extent that is clear unequivocal and unambiguous and contains an acknowledgement of debt, can constitute a liquid document for the purpose of the rules on provisional sentence.”

In casu, we have on record, attached to provisional sentence summons an affidavit which fits the description or definition of an acknowledgement of debt as summed up by the Sibanda v Mushapadze case above. This document in the form of an affidavit reflects the defendant’s identity number the total amount owed as US$13 696, the period upon which the debt has to be satisfied and the date where the final payment has to be made. Therefore, this document meets the criteria of a liquid document as stated by the authority already cited above.  See Admire Takawira v Zimbabwe Iron and Steel Company Limited HB. Infact the validity of the document as a liquid document has not been challenged and the signature appended there to. The issue of the commissioning of the document has been thwarted by the counsel for the Plaintiff who argued that the caveat subscript or rule applies, as the Plaintiff knew what his was appending his signature to. It is true that as a general rule one is bound by his or her signature as he or she has a duty to verify what they are agreeing to. The Latin term denotes that when signing a contract, the individual automatically agrees to the conditions and terms stated therein regardless of whether they have read and or understood. See ZFC Limited v Furusa SC15/18.

Disposition

The Court is of the view that the defendant was aware as to what he was appending his signatures too.  He admitted through his counsel that he is not illiterate.  The transaction was concluded on the 21st of June 2022. Of note summons for provisional sentence were issued on the 24th of February 2023.  As such, if there were any illegal activities, undue influence, force or any challenges surrounding the conclusion of the liquid document the defendant had ample time to take action through several avenues, one of them being the police route.

The court is satisfied that there is a commissioner of oaths stamp reflecting as such with a commissioner’s signature attached thereto.  That in the Court’s view suffices meets requirements of the law and suffices in terms of the Justice of the Peace and Commissioners of Oaths Act [Chapter7:09]. See, Marega v Prisons Commissioner General and Anor HH140/2017.  It is reiterated that if there were any underhand dealings in the commissioning of the document as alleged than the defendant should have queried the same.  In any event not all acknowledgements of debts need commissioning.  Even a letter if it passes the test laid down in the definition in Sibanda v Mushapadze above becomes a liquid document but with no commissioning.

We are alive to the fact that there are dubious people who break the law by carrying out unlicensed lending and borrowing facilities and charging exorbitant interests.  That is not sanctioned by the law and cannot be condoned.  However, the defendant and other people like him are complicity to these activities.  But without proof of such illicit dealings then it is difficult to dismiss a transaction in which one signs and acknowledges the amount reflected as an illegal activity. Courts work on evidence and in this case the proof that there was undue influence has not been placed before the court.

In Maseko v Ndlovu (HB 20 of 2016) the Court opined that it would be a travesty of justice if the Court were to grant provisional sentence on strength of vague, confused and unclear documents whose authenticity has been questioned. In Contradistinction in casu the document is authenticity has not been questioned.  It is not vague, confused or unclear. It is actually straight forward.  Like what has already been noted the defendant has not discharged the onus for the Court to go beyond the liquid document before it by providing evidence that there was undue influence.  People should refrain from signing documents they do not understand or from entering into shody transactions they would then regret and renege from.  It is clear that at the time the document was signed, the applicant was aware of its contents and amounts involved.

In summation the purpose of a provisional sentence proceedings as outlined in Maseko v Ndlovu above is to enable the Plaintiff to receive prompt payment without having to wait for the final determination of the dispute between the parties.

In that regard the provisional sentence is successful as not doing so will defeat the rationale behind the concept of provisional sentences.

Accordingly, it is ordered that, the provisional sentence is granted with costs.