Jackson Muguti v Mr July t/a Brilliant College

### Preamble
1
HH 295-11
HC 7255/10
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JACKSON MUGUTI

versus

MR JULY t/a BRILLIANT COLLEGE

HIGH COURT OF

BHUNU J

HARARE, 4 February 2011 and 30 November 2011

Mr Maruva, for the applicant

The respondent in person

Chamber Application

BHUNU J: The plaintiff issued summons against the defendant on 13 October 2010 claiming:

a)	 Payment of US$10,360-00 being outstanding arrears accrued during the periods May 2010 – September 2010 respectively for the leased commercial premises known as number 599 Galloway Road Norton. The cedant TWRE Zimbabwe Limited ceded its rights, title and interest to the plaintiff who now sues as cessionary.

b)	Interest thereon on the principal sum of US$10 360-00 at rate of interest 5% per annum from date of summons to the date of full settlement.

c). 	Costs of suit and collection commission.

The defendant excepted to the plaintiff’s summons in terms of r 137 on the following grounds:

“a)	That the summons and declaration are vague and embarrassing as they do not disclose any cause of action against the defendant as the defendant is only a principal at the college and he does not trade as Brilliant College.  is a separate legal persona which has a right to sue or be sued.

b)	The plaintiff does not have the locus standi to sue the defendant as it did or in any way as the plaintiff is prohibited by s 9 (2) of the Legal Practitioners Act [Cap 27:07] from performing any form of legal work on behalf of any other person.

c)	The plaintiff has not been legally authorized by this Honourable Court to represent Tony West Real Estate (Private) Limited.

Defendant is therefore not in a position to plead.”

I now proceed to deal with the grounds of exception in their order.

Whether the plaintiff’s claim is vague and embarrassing

The import of the plaintiff’s claim is that the defendant owes Tony West Real Estate (Private) Limited the sum of US10 360-00 in arrear rentals. Tony West Real Estate (Private) Limited has since ceded its right to payment from the defendant to the plaintiff.

In my view there is absolutely nothing vague and embarrassing in the plaintiff’s claim. The claim clearly spells out the cause of action and the amount claimed. That information is sufficient to enable the defendant to plead. Further information can be obtained by way of a request for further particulars.

Whether or not the defendant is personally liable for the debts of Brilliant College is a matter of evidence to be determined on the merits by the trial court. The same applies to the question of whether or not the plaintiff can sue in his personal capacity in place of Jacinth & Associate debt collectors. At this stage there is nothing to show that Jacinth & Associates Debt Collectors is a legal entity capable of suing and being sued in its own name.

Whether the plaintiff has the right to sue

Section 9 (2) of the Legal Practitioners Act [Cap 27:07] prohibits people who are not registered legal practitioners from practicing law by representing litigants in a court of law.

The section provides as follows:

“9 Offences by unqualified persons

(1)	 ….

(2)	 Subject to any other law, no person other than a registered legal practitioner who is in possession of a valid practicing certificate issued to him shall—

(a) 	sue out any summons or process or commence, carry on or defend any action, suit or other proceeding in any court of civil or criminal jurisdiction in the name of any other person; or

(b)  	for or in expectation of any fee, commission, gain or reward in any way instruct Por assist any other person to sue out or threaten to sue out any summons or process or to commence, carry on or defend any action, suit or other proceeding in any court of civil or criminal jurisdiction; or

(c) 	appear, plead or act in the capacity of a legal practitioner for or on behalf of any other person in any action, suit or other proceeding in any court of civil or criminal jurisdiction:

Provided that, nothing in this subsection contained shall prevent any director or officer in the sole employment of a corporation or any member of a partnership doing any such act as is mentioned in para (a) in the name of such corporation or partnership.”

It is clear from the section that it prohibits non lawyers from representing others in a court of law without prohibiting such persons from representing themselves.

In this case the plaintiff is not representing or suing on behalf of Tony West Real Estate (Private)  Limited He is suing on his own behalf as cessionary of the debt due and owing to Tony West Real Estate (Private) Limited the defendant.

In other words he has inherited the right of Tony West Real Estate (Private) Limited to be paid by the defendant and is now suing in his own name. The plaintiff not being a registered legal practitioner is perfectly entitled to sue the defendant in any court of law as a self actor. He has the necessary locus standi to sue the defendant in this case.

c) 	Whether the plaintiff has been authorized by this court to represent Tony West (Private) Limited

The plaintiff being a self actor suing the defendant on his own behalf needs no permission or leave of this court to sue the defendant. He is entitled as of right to sue the defendant without first seeking authorization from anyone.

From the foregoing I am satisfied that there is no merit whatsoever in any of the exception raised by the defendant. It is accordingly ordered:

That the exceptions raised by the defendant be and are hereby dismissed with costs.

That the defendant be and is hereby directed to plead to the plaintiff’s claim within ten days of the date of this order.

C Nhemwa and Associates, defendant’s legal practitioners