Corisco Design Team (CODET) v Zimsun Zimbabwe (Private) Limited

### Preamble
1
HH 291-11
HC 3305/09
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CORISCO DESIGN TEAM (CODET)

versus

ZIMSUN ZIMBABWE (PRIVATE) LIMITED

HIGH COURT OF

BHUNU J

HARARE, 9 November 2010 and 30 November 2011

Mr Kanengoni, for the plaintiff

Mr Manikai, for the defendant

BHUNU J:  The plaintiff issued summons against the defendant claiming payment of US$16 175 740-72 for fees owed by the defendant for professional services at the defendant’s special instance and request in or around 2007. The amount was due and payable sometime around 3 April 2009.

The plaintiff is a consortium of dully registered architects, civil and electrical engineers, quantity surveyors and project managers. In para 4 of its declaration the plaintiff claims that on or around 10 April 2007 at Harare the parties concluded an oral agreement wherein the defendant contracted the plaintiff as its consultants for the purposes of design and development of hotel buildings in Corisco, Equatorial Guinea.

In para 5 the plaintiff alleged that despite the parties’ agreement to reduce the oral agreement to a written memorandum of understanding the defendant has to date not signed the memorandum of understanding.

In para 4.1 the defendant denied ever entering into a contract of service as alleged by the plaintiff or at all. In para 4.2 the defendant admitted discussing the contract and being provided with a copy of the memorandum of understanding but did not sign it as it did not agree with the terms therein.

Under para 4.7 the defendant pleaded as follows:

4.7. 	Ïn February 2008 the government of Equatorial Guinea and the defendant concluded a Consultancy Services and Advisory Agreement for the construction of the training school at Mogomo. This is the only project which received the approval from government of  for implementation.

Thereafter the defendant proceeded to contradict itself at para 7.2 by saying:

The defendant denies that the government of Equatorial Guinea has approved the        construction drawings in relation to any of the projects, the plaintiff is put to the proof thereof.

The defendant further adds to the confusion when it denies that the government of Equatorial Guinea approved the three projects save for the Mogomo project.

Under para 5.5 of its plea the defendant denied that any fees were due but immediately thereafter contradicts itself under para 5.6 by stating that fees for selling drawings prepared by the team were due and awing.

Relying on r 141 the plaintiff has now applied for the striking out of the defendant’s plea as being bad at law. The rule provides that:

“141. Powers of court in relation to pleadings

At any stage of the proceedings the court may—

order to be struck out or amended—

any argumentative or irrelevant or superfluous matter stated in any pleading;

any evasive or vague and embarrassing or inconsistent and contradictory matter stated in any pleading;

any matter stated in any pleading which may tend to prejudice, embarrass or delay the fair trial of the action;

(b)	order either party to furnish a further and better statement of the nature of his      claim or defence, or further and better particulars of any matter stated in any pleading, notice or written proceeding requiring particulars.”

It is clear that the rule vests a wide discretion on the trial court. A reading of the rule however gives the impression that the overriding consideration is to correct pleadings by removing inconsistencies and contradictions. The rule also endeavours to clarify pleadings by removal or amendment of superfluous, extraneous or irrelevant material. The idea is certainly not to kill a case on the basis of a legal a technicality where irregularities can be corrected and put right. In my view striking out a pleading should be the remedy of last resort when everything else has failed to correct the irregular pleading. The ends of justice are better served when cases are won or lost on the merits rather than technicalities.

In this case I am satisfied that the justice of the case can be met by the defendant being given an opportunity to sanitize its pleadings by amending them so as to remove or correct the irregularities complained of.

The plaintiff also complained that despite being served with notice seeking admissions the defendant did not respond to that notice. In that case the plaintiff sought a declarator in terms of r 187 to the effect that the defendant must be deemed to have admitted by silence the facts sought to be admitted.

The rule provides that:

“187. Effect of failure to reply or refusal to admit facts

(1) 	In the case of failure to reply to the notice to admit any facts within ten days of delivery the party called upon therein shall be taken as having admitted all such facts for the purposes of the cause, matter or issue only.

(2) 	In the case of refusal to admit any facts, the costs of proving them shall be paid by the party so refusing, whatever the result of the cause may be, unless the court considers that the refusal to admit was reasonable.”

The provisions of the rule are self-explanatory and peremptory. The defendant was legally obliged to respond to the notices seeking admissions failure of which it is deemed to have admitted the facts therein. In the absence of a response within the prescribed ten day limit, the admissions in this respect are automatic by operation of law. The defendant can only escape the consequences of r 187 by showing that it in fact responded to the notice within the prescribed time limit. This defendant has failed to do.

For the foregoing reasons it is ordered:

That the defendant be and is hereby ordered to amend its pleadings so as to remove the irregularities pointed out in this judgment.

That the defendant be and is hereby deemed to have admitted all the facts contained in the notices to admit which it failed to reply to.

That whether or not the defendant actually failed to reply to any notices in terms of r 187 is a matter of fact to be determined by way of evidence during the trial.

Costs shall be costs in the cause.

Chikumbirike & Associates, plaintiff’s legal practitioners

Dube Manikai & Hwacha, defendant’s legal practitioners