Marjorie Mugwagwa v Zimbabwe Farmers Development Company (Private) Limited

### Preamble
1
Marjorie Mugwagwa v Zimbabwe Farmers Dev Co (Pvt) Ltd
HH 226/21
CIV “A” 241 /17
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MARJORIE MUGWAGWA

versus

ZIMBABWE FARMERS DEVELOPMENT COMPANY (PVT) LTD

HIGH COURT OF ZIMBABWE

MAFUSIRE J & MUSITHU J

HARARE, 29 March 2021

Civil appeal

Date of ex tempore judgment: 29 March 2021

Date of written judgment: 5 May 2021

Mr P. Sosono, for the appellant

No appearance for the respondent

MAFUSIRE J

[1]	In the magistrate’s court the respondent sued the appellant for payment of a sum of money said to represent the purchase price for certain farm machinery and equipment sold by the respondent to the appellant but for which the appellant had not paid. The appellant entered an appearance to defend. That was just about the only proper document filed for the appellant throughout the course of this whole case.

[2]	After the appearance to defend, the appellant subsequently filed a plea, or what purported to be one, but not before being served with a notice to plead. From the plea stage onwards, the matter went off rail. It never proceeded beyond the pre-trial conference stage. Twice the appellant and her counsel were in default of appearance at the pre-trial conference. Twice a default judgment was entered against her. Twice she applied for rescission of judgment. On the first occasion the respondent consented. The default judgment was rescinded and the matter was returned for the continuation of the pre-trial conference. But on the second occasion the respondent opposed the application. Rescission was refused.

[3]	This now is supposed to be an appeal from the magistrate’s court. In fact, there are two appeals. The notices were filed on different days. The second appeal document purports to incorporate and amend the earlier one. But they are two different appeals. They deal with two separate issues. Nobody knows what the appellant’s counsel is doing. Nobody can tell what he has been doing. From the moment he entered the scene and filed what purported to be the defendant’s plea, the matter became a thorough mess. Words cannot properly describe what we have been up against in this matter. More about this later.

[4]	The one appeal is against a certain interlocutory decision of the magistrate’s court on 29 June 2017. In it, the learned magistrate had ordered that the appellant’s second set of the pre-trial conference minute be expunged from the record. The appellant’s counsel had filed them unprocedurally. Not only had he not withdrawn the first set; not only had he given no notice of the new set; not only had he obtained no leave of the court to file the second set, but also the issues in the second set had not arisen from the pleadings. Not only that, but the new issues constituted some kind of new defences to the respondent’s claim. The respondent’s counsel had objected. The presiding magistrate upheld the objection. He ruled them inadmissible. So it was this interlocutory ruling that the appellant has purported to appeal against in the first instance.

[5]	The grounds of appeal in the first notice are barely readable, not only because of poor sentence construction and grammatical mistakes, but also because they are anything but grounds of appeal. They read like a plea. They read like heads of argument. They do raise completely different issues from those dealt with by the magistrate in his judgment. As mentioned before, the issue before the magistrate in the first ruling was the admissibility of the appellant’s second set of the pre-trial conference minute. In the grounds of appeal before us, the appellant deals with this point only in the last paragraph. He first attacks the magistrate for failing to realise that the appellant, a registered company, had died (!), or become incompetent! Next, he attacks the magistrate for dealing with a matter that was not yet ready for a pre-trial conference. Next, he attacks the magistrate for failing to appreciate that the court lacked the requisite monetary jurisdiction to deal with the respondent’s claim. He then attacks the magistrate for running against the weight of authorities when he had rejected the appellant’s amendment.

[6]	The second decision of the magistrates’ court the appellant purports to challenge was made on 31 August 2017. In it, the court refused the appellant’s second application for rescission of judgment. Among other findings, the then presiding magistrate noted that the founding affidavit was incompetent in that all of it was hearsay testimony. She ruled that the appellant had been in wilful default because she and her counsel had been well aware of the new date for the pre-trial conference but had deliberately chosen to be absent. Having found wilful default, the court held that this was the end of the matter.

[7]	If the appellant’s first notice of appeal is bad, the second one defies description. It is titled “Amended Notice of Appeal and Grounds of Appeal”. Sadly, it is anything but that. It is best that one reads it for themselves. If it were readable, one could relate it to some kind of a statement or an uncommissioned affidavit because of the evidence contained therein. It could also be related to some kind of heads of argument. It is repetitive. It is argumentative. Some cases allegedly pending in this court are cited. Spelling errors and grammatical mistakes are bountiful. Sentence construction is atrocious.  The whole document is appalling. We are not being finicky or uncharitable. One can pick on any paragraph in that document or on any sentence for illustration. Paragraph 1 is reproduced exactly as it is: punctuation, warts and all:

“The court aquo erred by to notice that it had no jurisdiction over the claim of US$71 000-00 and the appellant was not even consenting to jurisdiction of the magistrates court . The courts aquo both on 29th June 2017 and 31st August 2017 were simply ignoring the valid legal point brought their attention; no comments were made in the judgment but they continued to exercise jurisdiction despite protest. Similar cases involving the respondent are pending before the Highcourt not the magistrates’ court –see ZFDC CASE NO. HC 9059/17, HC 5958/17, HC7799/17, HC 6427/17, HC 3165/17 and many more. The present case is purely a High court matter, there no reason why the courts aquo should insist to entertain it , this explains why there are lot of procedural irregularities and injustice because it is well above the courts aqua’s level of competence because of the nature and complexity of the matter.”

[8]	At the appeal hearing before us the respondent was in default. Counsel for the appellant sought an order allowing the appeal in default. We pointed out that his grounds of appeal were so defective that no court could relate to them. He did not believe it. He could not accept it. My learned brother MUSITHU J and I took turns to point out the defects. He was not listening. For the next hour or so counsel sought to convince us that the respondent was non-existent, that there was only one party before the court and that the appeal should be allowed.

[9]	Counsel’s point was that he had gathered intelligence that the gentleman whose name and signature appeared in the discovery affidavits filed for the pre-trial conference in the court below, a Mr Ignatius Zengeya, had since passed on and that therefore the respondent was not properly before the court since no notification of his death and his substitution thereof had been filed of record. We tried several angles to convince counsel of the elementary mistake he was making. We explained to him that the party before the court had not been the said Mr Zengeya, or any other natural person for that matter, but a company that is duly incorporated in accordance with the laws of this country which, among other things, is unaffected by the death or changes in its membership, directorship or management.

[10]	Despite giving us the impression that he had finally appreciated his mistake, counsel refused to concede the impropriety of his notice and grounds of appeal. Nevertheless, we dismissed it. We gave brief reasons ex tempore. In the course of our oral judgment, which I pronounced, I lamented that the appellant’s rights of access to justice was seriously being impeded by the crass incompetence and recklessness of her counsel. We made no ruling on the question of costs. On hindsight, we should have. Counsel is clearly not entitled to any fees or any reimbursement on disbursements for the way he has handled this matter. If he has already been paid, in all honesty he ought to refund them. But we made no such ruling. And we are now functus officio. At any rate, we gave counsel no opportunity to make representations on the point.

[11]	It is impossible to write a coherent and sensible judgment on that kind of charade as played out in this matter. Our stance is eminently justified. Below is a snippet of the farce we have had to contend with:

On page 37 of the record is the defendant’s plea in the court below. It is meaningless. The plaintiff’s claim is for payment of a sum of money for goods sold and delivered. The plea is neither an unequivocal denial nor a special plea. It does not confess or avoid. It is not an exception. In short it does not answer to the plaintiff’s claim. Certainly, no defence of prescription is raised, something the appellant’s counsel subsequently latches onto and maintains right up to the appeal stage.

On page 48 of the record is the appellant’s draft pre-trial conference minute. Among other things, a pre-trial conference minute lists the draft issues for trial. At this stage the pleadings have been closed. But the appellant obliquely smuggles into the matrix a new defence – prescription. That is incompetent.

On page 67 of the record is the defendant’s summary of evidence. It is filed on 9 June 2017. It is part of a whole new set of documents for the pre-trial conference, which but for some postponement, should have been held way back in January 2017. But this document is unrecognisable as a summary of evidence. It is some kind of a plea. It contains a myriad of new and old defences. Prescription is repeated more robustly this time. Some kind of defence grounded on some ostensible hire-purchase agreement is added. Fraud or misrepresentation is pleaded. The respondent is accused of having itself breached the agreement between the parties by disappearing from the scene altogether for years, the same allegations made in the original document standing up for a plea.

The page 67 document goes on to list some more defences. I have identified a number of them as:

positive malperformance – by the respondent, allegedly in supplying defective equipment;

overreaching – by the respondent, allegedly in overcharging the appellant for cheap Chinese products;

breach of contract – by the respondent, allegedly in demanding payment of money instead of goods, in what was purely a barter arrangement;

unenforceability of a contract - the respondent allegedly trying to sue on a voidable contract whose terms were vague and embarrassing,

and so on and so forth.

On page 69 of the record is another draft pre-trial conference minute for the defendant with yet another defence, namely the court’s lack of monetary jurisdiction.

On page 74 of the record is part of an affidavit for the appellant in support of the second application for rescission of judgment. There is yet another defence smuggled in. The appellant alleges some procedural impropriety by the respondent and its counsel amounting to fraud, allegedly in that they were persisting with the claim in circumstances where the proceedings should have been stayed on the death of Mr Zengeya.

[12]	Soon after argument, we dismissed the appeal. The dismissal was based not only on the demonstrable and manifest lack of diligence and probity by the appellant’s counsel, but also on the merits. The first appeal was against an interlocutory decision. Such a decision is not appealable. It was not such a decision as had the effect of a final and definitive judgment in the contemplation of s 40(2)(b) of the Magistrate’s Court Act, (Chapter 7:10).

[13]	We dismissed the second appeal because none of the grounds of appeal related to anything decided by the court below. The learned magistrate had been correct to rule that, among other things, there had been no proper affidavit filed in support of the application for rescission of judgment. The affidavit that was there had been deposed to by the appellant. But in reality, it was her counsel speaking. He was trying to explain how on the eve of the date of the hearing of the pre-trial conference he had come to the court complex in Harare, all the way from Chinhoyi where he was based, simply to enquire whether the pre-trial conference which had been scheduled to resume the next day, would in fact proceed; how the magistrate had communicated to him through the clerk of court that the parties’ attendance would be excused as she would be merely delivering judgment on the interlocutory point above, and how the respondent’s counsel had on the next day snatched judgment at the pre-trial conference. There was no affidavit by counsel himself to verify those averments.

[14]	The conduct of the appellant’s counsel is appalling. There is everything wrong. Among other things, no proper jurisprudence can possibly develop with officers of the court like him. This is conduct that any regulator in the practice of law should have to be interested in. In the premises we have directed that the Registrar of this court should bring this judgment to the attention of the Law Society of Zimbabwe and the Council for Legal Education.

[15]	The matter was disposed of as follows:

The appeal be and is hereby dismissed.

5 May 2021

Musithu J:		I agree		__________________________

Date		__________________________

Sosono & Partners, appellant’s legal practitioners