Raftsman Investments (Private) Limited v Robin Francis H. Tebb and Registrar of Deeds N.O

### Preamble
1
HH 533-18
HC 11213/17
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RAFTSMAN INVESTMENTS (PRIVATE) LIMITED

versus

ROBIN FRANCIS H. TEBB

and

REGISTRAR OF DEEDS N.O

HIGH COURT OF ZIMBABWE

KWENDA J

HARARE, 25 July 2018 & 19 September 2018

Opposed Matter

T. Zhuwarara, for the applicant

F. Mahere, for the 1st respondent

No appearance for 2nd respondent

KWENDA J: The applicant has applied for leave to amend its summons and declaration issued out of this court in case no HC 9631/16 on an undisclosed date in the year 2016. The original summons and declaration were not submitted with this application. The Court can only rely on what the applicant says is contained in the summons and declaration to be amended. Applicant says in the year 2016 it sued for an order setting aside a certain Surety Bond No. 4250/11 registered against its immovable property held under Deed of Transfer no. 6844/2004 on the grounds that the bond is invalid and irregular. Pleadings in case no HC 9631/16 having closed, the matter has reached pre-trial conference stage.

The notice given of the amendment is that, at the pre-trial conference, the applicant will amend the summons and declaration by inserting paragraph (a) (i) between paragraphs (a) and (b) of the summons. The effect is to introduce a new prayer for the cancellation of another Surety Mortgage bond No. 2163/2009 registered against the plaintiff’s immovable property situate in the district of Umtali ‘….. which mortgage bond was cancelled on the 20th April 2011.” The applicant intends to make a similar amendment to the declaration. The applicant says the invalidity of bond No. 2163/09 was established following an audit by Baker Tilly auditors on an undisclosed date. The founding affidavit is very brief, consisting only of seven paragraphs which essentially restate what is contained in the Notice of Amendment.

The first respondent opposes the application on various grounds. Among other things, the first respondent submitted and argued that the application is not motivated by a genuine desire to assist the Court in determining the issues at hand but just to delay the day of reckoning. The first respondent avers that the applicant deliberately concealed the background to the dispute in case No HC 9631/16 so that it does not become clear that the application lacks merit.

Having considered all the papers and hearing argument the Court makes the following observations:-

Applicant’s failure to attach the summons and declaration to be amended is a deficiency in the application. Where the applicant says, for example, the amendment is by insertion of certain of para(a) (i) between para(s) (a) and (b) of the summons, the court is unable to relate to the substance of the request made

Applicant’s failure to give a background to the matter is another deficiency in the application. This court is unable to ascertain the basis for the alleged irregularity or invalidity inflicting the registration of bond No. 4250/2011 (being the subject matter of case No. HC 9631/16) and how it is connected in any way to the earlier registration of bond No. 2163/09.

The applicant failed to attach or refer to relevant pleadings and/or pre-trial papers in case No. HC 9631/16 to enable this Court to appreciate what the issues are and whether the registration of bond No. 2163/2009 is of any relevance to the determination of whether or not bond no. 4250/2011 is valid or regular.

The circumstances under which the respective bonds were registered are not disclosed.

It is trite that he who avers must prove. The Court must be satisfied after reading applicant’s papers that the relief sought is merited. Sadly the applicant’s papers fall short.

In opposing the application the first respondent volunteered the background to the dispute. He gives the background to the registration of bond No. 4250/11 as being that:

He lend $110 000 to a certain company known as Whitebedge Enterprises P/L( Whitebedge)

He advanced the loan to enable Whitebedge to repay an loan owed to MBCA Bank which had become overdue.

The applicant had stood as stood surety and co-principal debtor for the loan owed to the MBCA bank.

Accordingly when first respondent advanced a loan to the Whitebedge, applicant provided the necessary security for the repayment of the loan.

That is how surety bond no. 4250/11 was registered against applicant’s property.

In other words, applicant stood as surety and co-principal debtor for the repayment of the loan advance to Whitebedge, hence the registration of the bond.

When applicant sued for the cancellation of surety bond no. 4250/11 he defended the matter and counterclaimed for the payment of the sum of $110 000 for which the applicant stood as surety and co-principal debtor.

The rules of this Court provide for amendment of pleadings and matters arising pending action.Order 20 The rules provides as follows:

“Subject to 134 and 151, failing consent by all parties, the court or a judge may, allow either party to alter or amend pleadings, in such a manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties.”

My understanding is that a court can only allow a party to amend pleadings if the amendment sought is necessary for the purpose of determining the real question in controversy. The registration of bond No. 4250/11 is a juridical act separate and distinct from the earlier registration of bond 2163/2009. There is no connection emerging in applicant’s papers. Rule 132 is subject to r 134

“Amendment of summons or declaration: cause of action arising after issue of summons.

A summons or declaration may with the leave of the court or a judge be amended to substitute or to include a cause of action arising after the issue of the summons.

Provided that in the opinion of the court or a judge such an amendment does not change the action into or add to it, an action of a substantially different character which would …….. conveniently be the subject of a fresh action.”

Any alleged irregularity or invalidity in the registration of bond 2163/09 would not be an occurrence subsequent to the summons in case No. HC 9631/16. While the applicant suggests that the invalidity or irregularity was discovered following an audit, the date of the audit is not stated. Actually according to the evidence submitted by first respondent in his opposing affidavit evidence the alleged audit was prior to the summons.

In any event the juridical acts giving rise to the two bonds are separate and distinct can best be dealt with separately as separate actions and there is no basis for conflating the two. It was up to the applicant if it had been diligent to bring both claims stated separately and distinctly albeit in the same summons. However, now that the claim in case No. HC 9631/16 was brought separately, there is nothing preventing that claim from being determined on its own.

What the applicant intends to achieve is revealed by the notice of amendment itself. There is no correction or alteration sought in the notice of amendment but to add a new action.

Further, it is difficult to appreciate how a court can be called upon to make a pronouncement on a bond that has already been cancelled. The bond which is 2163/09 is, in applicant’s own words, no longer extant.

Leave to amend pleadings is granted as an exercise of judicial discretion. This court will not allow the applicant to introduce a new claim at pre-trial conference stage under the guise of amending pleadings. It can commence fresh and separate proceedings.

I find that the applicant’s application is an abuse of process. It lacks merit and was filed just to harass the first respondent. It also failed to prosecute it diligently. It filed an answering affidavit after heads of argument had been filed. Following resistance by the first respondent applicant’s counsel conceded that the answering affidavit could be disregarded since it had been filed unprocedurally. That left the first respondent’s averments in the opposing affidavit uncontroverted. As it turned out, the applicant had also filed its heads of argument out of time. The Court uplifted the automatic bar operating against the applicant following an oral application by counsel. The tardiness reveals that this application was filed as a dilatory tactic. If the applicant was serious it would have pursued its application vigorously.

Accordingly I order as follows

Application is dismissed with costs on the legal practitioner client scale.

Atherstone & Cook, applicant’s legal practitioners

Gill, Godlonton & Gerrans, 1st respondent’s legal practitioners