Ngoni Kundidzowora Versus Brian Nyamayaro AND THE Registrar OF Deeds AND Marimba & Partners

### Preamble
1
HH 205-13
HC 2887/09
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NGONI KUNDIDZOWORA

versus

BRIAN NYAMAYARO

and

THE REGISTRAR OF DEEDS

and

MARIMBA & PARTNERS

HIGH COURT OF ZIMBABWE

BERE J

HARARE, 3 June 2010 and 21 June 2013

Advocate T. Mpofu, for the plaintiff

K. Maeresera, for the defendants

BERE J.  In HC 4777/05, the first respondent properly obtained a default judgment, which the deponent now seeks to overturn.

From the very beginning the deponent to the founding affidavit exhibited unmistakable determination or unwillingness to disclose the source of her authority to make this application.  In the first place she filed the application without taking the initiative to furnish proof of her authorization.  The furthest she could go was to state in her founding affidavit that ---

“I depose to this affidavit by virtue of authorization from the applicant should such authority be placed in issue, I undertake to prefer proof thereof.”

One wonders why the deponent’s legal practitioners deliberately chose not to attach the power of attorney, if at all it was ever available.

Indeed, when as expected the first respondent challenged the deponent to produce such authority the deponent arrogantly concluded her answering affidavit in the following words:

“To pacify first respondent however, I attach hereto a copy of the power of attorney devolved upon me by the applicant which I had misplaced when I made the application.”

Ironically no power of attorney was annexed to the deponent’s answering affidavit despite a bold statement to that effect.  When this anomaly was brought to her attention the yawning gap in her evidence remained unattended.  In fact, one sees for the first time the deponent trying to explain in her answering affidavit the seasons why she failed to attach the power of attorney to her founding affidavit.  For the first time the deponent said she could not attach the document because she had misplaced it.  Compare this with what the deponent stated in her founding affidavit that she was in possession of such document.

During submissions in court counsel for the applicant assured the court that he was going to avail the power of attorney to court before a determination was made.

In a very unusual manner the court stretched its patience to accommodate the deponent to try and assist her demonstrate she was properly clothed to bring this action.  Even after this unusual gesture by the court the deponent failed to properly clothe herself with the requisite legal capacity to enable her to institute these proceedings.

In fact both the deponent’s instructing lawyers and the counsel who appeared to argue this matter gave one excuse after another for failing to produce the deponent’s power of attorney.

The inevitable conclusion which the court was forced to make because of the combined conduct of the deponent and her legal practitioners was that the deponent never had a power of attorney.  Even if the power of attorney were to be produce two years down the line, that document must not be allowed to operate retrospectively.

I am entirely with the first respondent’s argument as articulated by his legal practitioners that the applicant did not have locus standi in judicio to bring this action.

Realizing she did not have authority to initiate this action the best the applicant could have done was to withdraw this action and institute fresh proceedings with the proper authorization.  I would not put it in any better words than merely re-state the well known and often repeated eloquent remarks by his Lordship, Lord DENNING when he stated in the case of Macfoy v United Africa Company Limited.

“If an act is void, then it is in law a nullity. It is not only bad but incurably bad.  There is no need for an order of the court to set it aside.  It is automatically null and void without much ado, though it is sometimes convenient to have the court declare it to be so.  And every proceedings which is founded on it is also bad and incurably bad.  You cannot put something on nothing and expect it to stay there.  It will collapse.”

See also the case of Madumelana Import and Export (Pvt) Ltd.

The deponent’s case must collapse on this technicality.

Even if one were to lean backwards and pretend for a moment that the deponent had the legal power to bring this action (which factor is not at all being conceded) this application would immediately be stalked by other challenges.

On merits it remains a limping case, a severely compromised one.

The first respondent cannot seriously be said to have snatched a judgment against the applicant.

The first respondent’s legal practitioners sought to track down the applicant via its then legal practitioners, Messrs Manase and Manase.

In civil litigation the onus is on a litigant to develop some enthusiasm towards the conclusion of their case and not to wish for the natural death of a case against them. That  attitude defeats every sense of reasonableness as perceived by this court.

It was incumbent upon the applicant before he left this jurisdiction to provide a contact address for purposes of service of court process of a matter which he knew was quite alive.

The first respondent’s counsel went out of their way to serve court process on the applicant’s last known address and the process was properly received despite the stout effort by the deponent to now castigate the recipient of that process fully knowing that that recipient will not be able to defend her action.  To compound her situation the deponent conveniently decided not to attach an affidavit of the receiver of that process.

If the argument is that the first respondent had breached the terms of the contract, the deponent cannot be the best person to articulate that position because she was not part to the transaction.  She is not a joint holder of title of the property in issue and her hearsay utterances, are clearly not bona fide.

In conclusion, whichever way one looks at this matter, one cannot help but conclude that the machinations of the deponent were calculated to frustrate the first respondent in this transaction.

Such conduct must be discouraged and the only way to achieve this in the instant case is to hit the deponent where it hurts most, ie granting a punitive order of costs.

The deponent’s application is dismissed with costs on a legal practitioners and client scale.

Uriri Attorneys-At-Law, applicant’s Legal Practitioners

Sakutukwa & Partners, 1st respondent’s Legal Practitioners