Nyasha Patience Mandeya v Norbert Njazi

### Preamble
HH 421-12
HC 114/10
NYASHA PATIENCE MANDEYA
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NYASHA PATIENCE MANDEYA

versus

NOBERT NJAZI

HIGH COURT OF ZIMBABWE

CHIWESHE JP

HARARE, 7 June & 28 June 2011, 23 November 2011, 5 December 2011 &

5 November 2012

Mr J. Mutonono, for the plaintiff

Mr T.K. Hove, for the defendant

CHIWESHE JP:  The plaintiff issued summons against the defendant claiming payment of the sum of US$2 800.00 being the amount due and owing in terms of an acknowledgment of debt signed by the defendant on 13 July 2009 in terms of which the defendant undertook to make full payment to the plaintiff by 30 September 2009.  Despite demand the defendant has not met this obligation.  The plaintiff also claims interest at the rate of 5% per annum calculated from the date of service of summons and costs of suit on the legal practitioner – client scale.

The acknowledgement of debt copy of which is attached to the summons as annexure “A” is hand written in affidavit form and signed by the defendant before a commissioner of oaths.  Its penultimate paragraph reads:

“………….that I owe Miss N.P. Mandeya an amount of $2 800 (two thousand eight hundred United States dollars) which I undertake to pay by 30 September 2009.  Failure to pay this amount by 30 September 09, I authorise Miss N.P. Mandeya to sell my vehicle a peugot 406, local  model, registration number 760 020G to recover the amount I owe her.”

The defendant filed an appearance to defend this action on 17 January 2010 and his plea on 17 February 2010.  In his plea the defendant admits giving the undertaking to pay as alleged by the plaintiff but states that he did so “under threat and in the face of criminal prosecution which was coutra bonos mores”.  He says he gave the undertaking under protest and in order to secure his liberty.  But for that threat he would not have given the undertaking.  For that reason the defendant avers that the undertaking was void at law and therefore unenforceable.

In her replication filed on 22 February the plaintiff maintained that the undertaking was made voluntarily.  She says the defendant faced prosecution for fraud arising from his failure to pay the amount owing.  He voluntarily offered to pay in order to avoid prosecution.  She maintains further that the prosecution was valid and lawful.  An undertaking issued under these circumstances cannot be contrary to good morals as alleged, argues the plaintiff.

The parties proceeded to pre-trial conference on 17 July 2010.  By that time the defendant had engaged the services of Messrs T.K. Hove and Partners.  He had previously been represented by Messrs M.S. Musemburi and Associates.  The two issues identified at the pre-trial conference were captured in a joint pre-trial conference minute as follows:

“whether  the acknowledgment of debt signed by the defendant on 13th July 2009 was signed under duress and is void at law and legally unenforceable.?”

“whether the defendant is legally liable to pay to the plaintiff the sum claimed or any other sum at all?”

It was also recorded at the pre-trial conference that the defendant would seek leave before the trial date to file an amended plea.  However on 29 July 2010 without notice and without leave of this court he purported to file not only his amended plea but also what was called ‘the defendant’s supplementary pre-trial conference minute”.  In this amended plea the defendant brought a new dimension to the pleadings, namely, that in his dealings with the plaintiff he acted not on his own behalf but on behalf of a company.  The contract giving rise to the acknowledgment of debt was between the company and the plaintiff.  The defendant  only acted as an agent.  He was not party to the contract.  This is what the defendant sought to file well after the closure of pleadings and without leave of the court.  In his supplementary pre-trial conference minute the defendant introduced two new issues, namely :

Was the contract between plaintiff and defendant in his personal capacity or with defendant in his representative capacity?

Whether defendant is liable to pay in United States dollars a debt incurred in Zimbabwean dollars.

In response to the defendant’s actions in this regard the plaintiff’s legal practitioners properly addressed the defendant’s legal practitioners as follows in a letter dated 3 August 2010:

“Please be advised as follows:

The amended plea has been filed without the leave of the court or a judge and thus does not comply with the Rules.

The supplementary minute can thus not be admitted when the amended plea under which the issues are sought to be introduced has not yet been allowed.

We are treating the two documents filed as being irregular unless there is full

compliance with the Rules.”

Despite this intimation the defendant did nothing to regularise the anomaly.  Clearly his papers cannot be admitted.  That being the case the issues before the court remain those recorded at the pre-trial conference held on 27 July 2010.  Equally the defendant’s plea has not been amended.

The background facts of the matter are largely common cause.  The parties first met in 2005.  The defendant was a client of the African Banking Corporation where the plaintiff was employed as a money market dealer.  The defendant was in the business of procurement and supply of cement.  He did so through a company called Coddex.  The plaintiff approached the defendant in December 2007 with a view to purchase cement as she was building a house in ZIMRE Park, Harare.  The defendant agreed to supply her with 600 bags of cement.  He instructed her to deposit the purchase price in a given bank account.  The plaintiff duly deposited the money as directed by the defendant.

The defendant failed to supply the cement as agreed.  In frustration the plaintiff reported the matter to the police in October 2008.  The defendant was then placed on remand on a charge of fraud.  The trial date was set for mid-July 2009.  At that stage the defendant pleaded with the plaintiff to withdraw the charges and in turn he would pay an agreed amount.  He offered to pay the sum of $2 800.00 in full and final settlement of her claim.  The plaintiff agreed to this proposal.  The defendant then wrote an acknowledgment of debt in affidavit form, undertaking to pay the plaintiff the sum of $2 800.00.

The defendant did not live up to that promise.  It is for that reason that the plaintiff issued summons against the defendant.

The plaintiff gave evidence on oath.  I find her story simple and straight forward.  She struck me as a credible and constructive person.  On the other hand the defendant did not deny signing the acknowledgment of debt.  He says he did so under duress.  Further he does not deny the obligation to supply the cement nor does he refute the fact that the cement was paid for through a bank account at his instance.  He argues however that he entered the agreement on behalf of a company and that for that reason he was only an agent of that company.  The contract was between his principal, the company and the plaintiff.  It is the company that the plaintiff should sue, he argues.

However the issues in this trial are very clear.  Firstly the defendant says he signed the acknowledgment of debt under duress.  He was threatened with criminal prosecution.  The only issue to be determined therefore is whether the acknowledgment of debt was signed freely and voluntarily.  However it is trite that a threat by a person to institute an action which he is legally entitled to bring does not constitute duress – Salter vs Haskins 1914 TPD 264.

On that basis I would hold that the acknowledgment of debt was freely and voluntarily signed by the defendant.  It is on the basis of that liquid document that the plaintiff mounted this action.  The defendant drafted this document in his own handwriting.  On its own it is more than sufficient to establish his indebtedness.  He does not in it say he is signing on behalf of a company.  He even pledges his own personal vehicle in the event that he is unable to pay.  Further the defendant clearly undertook to pay the amount in the currency of the United States of America.  There is no basis upon which he now seeks to pay in Zimbabwean currency.

I agree with the plaintiff that the defendant has no valid defence to this claim.  I am satisfied that the defences he tries to raise are an after thought.  He is on a fishing expedition.

At the close of the plaintiff’s case the defendant applied for absolution.  I dismissed that application.  Once it is admitted or shown that an acknowledgment of debt was signed a prima facie case arises based on the existence of that liquid document.  The onus is on the defendant to then show on a balance of probabilities that he signed the document under duress.

In the result I find for the plaintiff and order as follows:

That the defendant pays the plaintiff the sum of US$2 800.00 plus interest thereon at the rate of 5% per annum calculated from the date of service of the summons to the date of full payment.

That the defendant pays the costs of suit.

Chadyiwa & Associates, plaintiff’s legal practitioners

Messrs T.K. Hove & Partners, defendant’s legal practitioners