Samuel Moyo v Ecobank Zimbabwe Limited

### Preamble
1
HH 814-18
HC 5080/18
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SAMUEL MOYO

versus

ECOBANK ZIMBABWE LIMITED

HIGH COURT OF ZIMBABWE

TAGU J

HARARE, 9 November and 12 December 2018

Opposed Application

ST Mutema, for the applicant

I Chiwara, for the respondent

TAGU J: This is a chamber application for the dismissal of respondent’s action under case number HC 2474/16 made in terms of Rule 75 (1) of the High Court Rules 1971 on the ground that it is frivolous and vexatious. The said rule provides that-

“Where a defendant has filed his plea, he may make a court application for the dismissal 	of the 	action on the ground that it is frivolous or vexatious.”

The facts are that the respondent extended a loan facility to a company called Centra Foods (Private) Limited for an amount of US$120 000.00. The applicant became a core principal debtor for allegedly signing a Surety agreement together with one Paul Denslow. Centra Foods (Private) Limited defaulted in paying back the loan. The respondent then issued Summons suing Centra Foods (Private) Limited for breach of the loan facility agreement. In terms of the Summons Paul Denslow and the applicant were also sued jointly and severally as core principle debtors for allegedly signing Surety agreements with the respondent. During the proceedings the applicant was barred for failing to plead. The applicant then applied for the upliftment of the automatic bar. Before the upliftment of the bar Paul Denslow and the respondent then entered into a settlement over the principal debt and ancillary costs for which the applicant was being sued as core principle debtor. A Deed of settlement was duly filed of record. The bar operating against the applicant was subsequently uplifted and the applicant duly pleaded to the Summons. The applicant now alleges that this settlement between Paul Denslow and respondent has absolved every other defendants including himself. He now approached this court in terms of rule 75 (1) of the High Court Rules 1971 on the basis that the action filed by the respondent against him is frivolous and vexatious. He now seeks the following order:

“   1. The Application for the dismissal of Respondent’s action under case number HC

2474/16 be and is hereby granted.

2. Case number HC 2474/16 be and is hereby dismissed.

3. The Respondent shall pay costs of suit om a legal practitioner and client scale.”

For an application for dismissal of an action to succeed, the applicant should show and prove the following-

That he filed his plea.

That the claim against him is frivolous and vexatious.

That in the applicant’s belief the action is frivolous and vexatious.

It is trite law that were a plaintiff sues various defendants jointly and severally the one paying the other to be absolved, the plaintiff loses the right to pursue other defendants the moment he settles with the one of them. By settling with the other one means the other must have paid in full. In casu what we only have is a deed of settlement entered between the respondent and one Paul Denslow. Counsel for the applicant conceded that as at the time of hearing this matter Paul Denslow had not yet paid in full and that there was a possibility that Denslow may even default in fulfilling the terms of the Deed of settlement. His submission was that in the event that Denslow defaults in fulfilling the terms of the Deed of settlement the respondent will have to proceed against Denslow alone.

With the greatest of respect I do not agree. The Summons clearly says that the parties were sued jointly and severally and the one paying the others to be absolved. In this case the debt has not been paid in full and there is no way the other defendants can be absolved at this stage. The fact that a Deed of settlement was entered into with one of the sureties does not extinguish the applicant’s liability for repayment of the outstanding debt. It is only the repayment of total sum that extinguishes either surety’s liability towards the respondent, not an intention to settle the debt through a Deed of settlement. In any event, the Deed of settlement never expressed an intention to release the applicant from liability. There is therefore no basis in fact or at law which the applicant can rely on to extinguish his liability towards the respondent as surety for the repayment of the debt due to the respondent. If the applicant was alleging that Paul Denslow has since liquidated the full debt, then the applicant could be absolved. In any case if Paul Denslow had entered into a Deed of settlement this shows that the action to which he consented to is not frivolous and vexatious. The action cannot became frivolous and vexatious merely because a core defendant has consented to pay. An action must be frivolous and vexatious ab initio. This is not the case in this case.

It was stated by MAKONESE J in Dube v Dube HB – 28-15 that rule 75 (1) of the High Court Rules is designed to assist a defendant by enabling him to apply to court to dismiss a frivolous and vexatious action. Such an application is the converse of an application for summary judgment and much the same considerations apply, namely whether the plaintiff has an arguable case. The court will not dismiss an action under this rule unless satisfied that the likelihood of the case succeeding stands outside the realm of probability altogether. An action is deemed frivolous and vexatious if it is impossible to succeed. Further, in S v Cooper & Ors 1977 (3) SA 475 (T) at 476D BOSHOFF J said the word frivolous in its ordinary and natural meaning connotes an action characterized by a lack of seriousness, as in the case of one which is manifestly insufficient. An action is in the legal sense “frivolous or vexatious” when it is obviously unsustainable, manifestly groundless or utterly hopeless and without foundation.

In the present case applicant bound himself as a surety over the repayment of a debt owing to the respondent, which remains outstanding. This is the factual situation which entitled the respondent to institute the claim against the applicant for the repayment of the outstanding amount. The fact that Paul Denslow accepted to pay more than US$120 813.55 is neither here nor there because the amount is inclusive of the capital amount, interest and penalty charges. Besides there are three defendants in this case and the applicant cannot seek an order that absolves the rest of the defendants in this application when the debt has not been extinguished.

The application has no merit and will be dismissed.

IT IS ORDERED THAT

The application for the dismissal of Respondent’s action under case number HC 2474/16 be and is hereby dismissed.

Case number HC 2474/16 against Applicant be and is hereby sustained.

The Applicant shall pay costs of suit on a legal practitioner and client scale.

Stansilous and Associates, applicant’s legal practitioners

Coghlan, Welsh & Guest, respondent’s legal practitioners