Maxwell Matsvimbo Sibanda v Scanlen & Holderness and Evans Talent Moyo and K Musimwa Musimwa & Associates

### Preamble
1
HH 673-18
HC 3060/18
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MAXWELL MATSVIMBO SIBANDA

versus

SCANLEN & HOLDERNESS

and

EVANS TALENT MOYO

and

K MUSIMWA

MUSIMWA & ASSOCIATES

HIGH COURT OF ZIMBABWE

CHAREWA J

HARARE, 2 & 24 October 2018

Exception

Plaintiff, in person

Mr G Gapu, for the first and second defendants

Ms P Zvenyika, for third defendant

CHAREWA J: This matter is a prime example of why litigants should seek legal advice and instruct legal practitioners to represent them in order to better articulate their claims in accordance with the relevant principles of law. As I shall show, this is a case which I find to be so hopelessly convoluted and muddied that I ought to have dispensed with it ex tempore but have been forced to write a judgment in order to ensure plaintiff understands the shortcomings of his case so that in future he either seeks expert and skilled legal advice to assist him decide whether and how to pursue any perceived injury to himself or he desists from pursuing claims which are doomed to fail, otherwise he will subject himself to the unnecessary burden of having to pay costs.

Background

Between 2011 and 2014, the plaintiff was represented by the first defendant in various litigation through the services of second defendant. In an action under HC 6750/11, first and second defendants successfully obtained default judgment by way of application in HC 12599/2011 in favour of plaintiff for the payment of $4 000 and for the delivery of timber valued at $392 000. In HC 7244/12, first and second defendants successfully obtained judgment in favour of the plaintiff for an interdict barring the sale of immovable property and a declaratory order that such property was especially executable in order to satisfy the judgment in HC 12599/11 (Ref. HC 6750/11). In HC 5746/13, first and second defendants obtained judgment, on 2 April 2014, in favour of plaintiff in a claim for road traffic accident damages in the amount of $15 000. Further, they also obtained an arbitral award in his favour before A.M. Ebrahim on 5 December 2011 wherein plaintiff was awarded $4 000 and an unspecified amount in interest due on summons specified in the contract between plaintiff and T.S. Timber & Building Supplies (Pvt) Ltd. In the end, first and second defendants renounced agency for the plaintiff for all matters and he went on to appoint other legal practitioners.

Plaintiff’s new legal practitioners defended him in application HC 51655/16 to set aside judgments in HC 6750/11 and HC 7244/12. The same legal practitioners represented him in defending an application for rescission of judgment in HC 11495/16 which sought the setting aside of judgments in plaintiff’s favour obtained by first and second defendant in HC6750/11 and in HC 7244/12. The former judgment was rescinded while the latter was confirmed. He also engaged third defendant to pursue enforcement of the arbitral award obtained in his favour by first and second defendant.

Cause of action

Summons

The plaintiff was presumably unhappy with the services rendered by the defendants and issued summons in the present matter claiming that:

“(a) first and second defendants be ordered to pay Plaintiff the amount of US$15 000.00 plus interest of 5% from the date of judgment by Justice Mathonsi as per Order 0011918 dated 10 April 2014 and also be ordered to pay the amount of US$55 per day for loss of use of vehicle from 17 February 2012 to date of final payment as per amendment claim submitted by first and second defendants dated 11 November 2014 for illegally killing client’s case deliberately. For full details of claim se first Declaration attached hereto. Plaintiff is also claiming costs on attorney client scale.

(b) first and second Defendants to pay Plaintiff the amount of $392 000.00 plus interest of 5% per annum, plus US$4 000.00 balance of deposit, costs of suit on legal practitioner ad client scale as per judgment Order by judge Makoni under Case No HC 6750/12 and also judgment by judge Matanda Moyo under HC 7244/12which resulted in a Writ of Execution against immovable property in March 2015 of which first and second Defendants killed the case. Plaintiff is also claiming US$40 000.00 on attorney and client scale legal costs as per judgment by Justice Makoni dated 23 June 2014 and as per Order dated 5 April 2016 by Constitutional Court where plaintiff defended 9 different court cases submitted by Zambe Nyika Gwasira and former wife Everjoy Meda (see Plaintiff’s Declaration for full details). Plaintiff also claiming costs on attorney client scale.

(c) first, second and third Defendants shall pay to Plaintiff the amount of US$169 216.00 being interest/damages awarded by arbitrator Mr A.M. Ebrahim on 5 December 2011. (However first, second and third defendants killed client’s case and as a result Plaintiff also claims costs awarded to him which he incurred and accumulated from March 2012 to March 2018 of US$6 475.00. Plaintiff also claims 5% interest per annum on the above amounts from date of summons to date of final payment (see Plaintiff’s Declaration). Plaintiff also claims costs on attorney and client scale.

(d) Plaintiff has submitted the above 3 cases under one Summons to avoid multiple court cases as the Defendants are the same on all the cases except on the third case paragraph 15 to 23 where third Defendant becomes a part and also for the reason that the Honourable Court can easily identify similarities of how the three (3) cases were killed by the Defendants.

(e) In addition to the amount claimed in paragraphs a-c, Defendants shall pay Plaintiff costs at legal and client scale.”

I say that plaintiff was “presumably” unhappy with the defendants in that he says that they allegedly “killed” his case. However, it is instructive to note from the above extract of the summons that, as against first and second defendants, one has to surmise that this may be a claim for delictual damages for negligent representation of the plaintiff, or a breach of a service contract, but no basis has actually been pleaded in either delict or contract for such assumption. Neither has the plaintiff laid a basis for claiming against the third defendant made at all. It is certainly not clear under what branch of law the claims are based.

Further, note must be taken that HC 6750/12, which plaintiff cites, is a matter dealt with by Mtshiya J and involves FMC Financial Services (Pvt) Ltd v Lovemore Shereni, and is therefore totally irrelevant to this suit.

In addition, why defendants should be held liable for attorney and client costs awarded to the plaintiff on appeal to the Constitutional Court as against the appellant is not clear. It is not advanced by plaintiff that appellant and his wife Everjoy Meda were not entitled to appeal, and if they did it was plaintiff’s fault.

Nor is it clear why a self-actor believes he is entitled to legal practitioner and client costs, and twice over for that matter.

Interest and damages are not the same thing. Therefore the basis of plaintiff’s claim (c) is incomprehensible. Did the arbitrator award interest or did he award damages? Whichever, case what is the basis for claiming this amount from the three defendants? How did they “kill” the plaintiff’s case? Were all three defendants acting for plaintiff in the matter? These questions support the defendants’ contention that the summons is excipiable, and at the very least, vague and embarrassing.

As for the third claim for $169 216 against all three defendants, it is firstly unclear what causa plaintiff has against first and second defendants. Their only mandate appears to have been merely to represent plaintiff to obtain an arbitral award, and which they did. They did not have a mandate for the enforcement of that award.

It appears that plaintiff instructed third defendant to register the award for enforcement purposes. The registration was declined by the court. From plaintiff’s convoluted explanation, it seems that his gripe with third defendant is that he prepared an application for registration of an award for an amount of $265 740.16, rather than only for registration of a claim for interest of $77 637.02, and further that the affidavit in support of the application bore his forged signature. How this grounds a claim for $169 000 is not traversed. Nor is it clear how third defendant could have successfully registered an award for interest only when the arbitral award itself does not sound in money: the capital amount on which the interest accrues and the rate of such accrual is not specified in the award.  In any event, plaintiff appears to have failed to appreciate that the failure to register the award was precisely because it was not sounding in money.

It is trite that a claim discloses no cause of action and is excipiable where no averments are made as to which branch of law it relates and the facts on which it is alleged that a defendant committed an act of commission or omission giving rise to the plaintiff’s claim. Where such averments are totally absent, the summons is a nullity. However, where the cause is evident but only lacks adequate particularity, the claim may be amended subject to the directions of the court.

Finally, a claim is vague and embarrassing if it is not concise and sufficiently clear as to certainty and precision of averments as to the facts of the cause.

In the instant case, no averments as to professional negligence or misconduct are made in order for the court and the defendants to know whether they are being sued in delict. Nor are there any averments that, defendants, having been contracted to provide legal services failed to do so. I would agree with the defendants that the summons is null and void, such that it is not amenable to an order for amendment.

It is for these reasons that I find the plaintiff’s claims to be hopelessly convoluted and muddied. In the circumstances I have no option but to uphold the exception as against the summons.

Declaration

In paragraph 2 of the declaration, plaintiff seems to suggest that his cause of action arises from the fact that first and second defendants issued summons against Chimukwe Transport (Pvt) Ltd only rather than against both Leonard Mukumba as the proprietor of Chimukwe Transport and the Company, and thus defendants failed to act in accordance with his instructions. It is obvious that plaintiff does not understand that a person can be sued in his trading name and the outcome is that that person’s assets can still be attached as happened in this case.

Further, as I have already stated with regard to the summons, in respect of the claim against third defendant, it seems to me that plaintiff totally failed to understand why his application for registration of the arbitral award failed. He seems to believe that this was because third defendant claimed the wrong amount, $265 740.16 rather than $77 637.02 which he had directed to be the amount for registration. However, the challenge to the registration was more fundamental than that: registration was refused because the arbitral award for interest was not quantified and therefore did not sound in money. So even if third defendant had follow plaintiff’s instructions and sought registration of $77 637.02, the award was still not registrable. Thus plaintiff’s cause of action does not exist.

Be that as it may, I will not let the issue of the exception to the declaration detain me in view of my opinion with regard to the summons, and more particularly since there is a more serious challenge to the plaintiff’s claims: that of prescription, which has the effect of disposing of plaintiff’s claims in toto.

Prescription

It is trite that prescription begins to run from the date a debt becomes due. A debt becomes due as soon as a party becomes aware of the facts and circumstances necessary to ground his claim. And by that, is not meant that a party must be aware of all relevant facts and circumstances, but that as soon as a party is aware of adequate facts grounding his claim, then the debt becomes due and prescription begins to run. And unless interrupted, by specific acts circumscribed by law, like the institution of judicial processes, acknowledgments of debt etc, prescription will run for three years on all ordinary debts, after which a party may no longer be able to bring his case before the court. There is no doubt that all of the plaintiff’s claims are ordinary debts which prescribe after three years from the date they become due.

Therefore whether or not first and second defendants acted negligently or failed in their professional duty of care to plaintiff, the fact of the matter is that with regard to plaintiff’s claim for payment of $15 000 and $55 per day, at the latest, as at 6 October 2014, plaintiff was aware of all the necessary facts grounding his cause of action. At the earliest, as at 2 April 2014, when first and second defendants renounced agency, by his own admission, plaintiff was already unhappy with them, meaning that he was already aware that they had not followed his instructions and thus prejudiced him in seeking execution of the judgments they had obtained in his favour. He ought then to have issued summons for damages for professional negligence against first and second defendant within three years from either of those dates. He failed to do so. He only issued summons in the present matter on 5 April 2018. His claim for $15 000 and other ancillary remedies thus prescribed either on 1 April 2017 or more generously, on 5 October 2017.

In respect of the claim for $4 000.00 and $392 000.00, the judgment which first and second defendant obtained in favour of plaintiff before Makoni J and upon which plaintiff’s claim seems to be predicated was handed down on 7 March 2012. The subsequent judgment, which first and second defendant obtained in favour of plaintiff before Matanda-Moyo J declaring plaintiff’s debtor’s property especially executable to satisfy the former judgment was handed down on 28 November 2014. If there was anything untoward in first and second defendant’s conduct in representing plaintiff, then such conduct ought to have been manifest either as at 7 March 2012, or at the latest by 28 November 2014. In either case, by the time plaintiff issued and served summons against first and second defendants in April 2018, whatever claim may have arisen from their misconduct in obtaining those judgments had prescribed, for, at the time the judgments came out, plaintiff ought to have become aware that the judgments were not obtained according to his instructions.

As for the third claim for $169 216 against all three defendants, allegedly arising out an arbitral award in plaintiff’s favour granted on 5 December 2011, it is apparent, firstly,  that plaintiff never gave first and second defendant the mandate to enforce it, in which case his cause against them would have arisen on 6 December 2011 with regard thereto. Secondly, even assuming that he only became aware that first and second defendants had obtained an unregistrable award upon dismissal of his application for registration on 29 January 2015, plaintiff’s claim had prescribed by 28 January 2018. In any event, by 20 November 2013, long after first and second defendants had obtained an arbitral award in his favour, plaintiff had instructed third defendant to register that award. It goes without saying that any claim plaintiff might have had against first and second defendant arose either prior to 28 January 2015 at the latest, or 21 November 2013 at the earliest. I either case, his claim had prescribed well before April 2018 when he issued and served his summons.

Further, plaintiff acknowledges that on 27 January 2015, he submitted his initial letter of complaint to first and second defendant, and up to March 2015, he was following up on these complaints. This presupposes that as at January 2015, by his own admission, he was aware that he had a complaint against first and second defendant, but still allowed three years to pass before instituting litigation. See paragraph 23 of plaintiff’s declaration.

According to plaintiff’s own declaration, at paragraph 21, he instructed third defendant to register the arbitral award aforesaid with respect to interest in the amount of $ 77 637.02 as at 31 October 2013. That application, according to paragraph 22 of the declaration, was dismissed on 29 January 2015. Clearly by then, or shortly thereafter, he knew or ought to have been aware of whatever shortcomings third defendant had in representing him, and his cause of action arose then. Certainly this must be why plaintiff then instructed another law firm to appeal against refusal of registration of the arbitral award as he was clearly dissatisfied with third defendant’s services. Thus his claim as against third defendant had also prescribed by the time he issued and served his summons in April 2018.

In his submission, plaintiff showed a total lack of awareness of the requirements for prescription, an understandable situation since he is a layperson. He seemed to believe that, with respect to first and second defendant, prescription was interrupted by his referral of his complaints to a senior partner in the law firm, and that whatever discussions they were having held prescription in abeyance. Plaintiff appears to have no idea that the law prescribes when and how prescription may be interrupted.

As regards third defendant, plaintiff held the misconception that since the third defendant did not raise prescription in his plea, he could no longer raise it. Plaintiff is obviously unaware that prescription is a point of law which can be raised at any time. Unfortunately, ignorance of the law is no defence or excuse.

In the circumstances, there is therefore no doubt that as at the time the plaintiff issued summons, his claims had prescribed. Consequently, the special plea in bar succeeds.

Costs

Ordinarily, I would have let costs follow the result. However, first and second defendant, probably being mindful of the fact that plaintiff is a self-actor who has absolutely no idea as to the principles of law that he had to abide by, prayed for dismissal of his claim with no order as to costs. The third defendant on the other hand, was less kindly disposed to the plaintiff and prayed for an order in his favour with costs. I am disposed to making an order of costs in terms of the parties’ requests.

Disposition

It be and is hereby ordered that

The defendants’ exception is upheld.

The special plea of prescription is upheld

The plaintiff’s claim is dismissed.

The plaintiff is ordered to pay the third defendant’s costs of suit.

Plaintiff, in person

Scanlen and Holderness, first and second defendants’ legal practitioners

Musimwa & Associates, third defendant’s legal practitioners