Walter Hankey v Mutual Finance (Private) Limited

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WALTER HANKEY
and
MUTUAL FINANCE (PRIVATE) LIMITED


HIGH COURT OF ZIMBABWE
KARWI J
HARARE, 21 October 2011


Opposed Court Application


Mrs Wood, for applicant
Mr Jori, for respondent

        KARWI J; Applicant is seeking an order for the upliftment of a bar operating
against him as a result of his failure to file a plea.
        The facts of this matter are that respondent instituted proceedings against the
applicant for being in wrongful and unlawful occupation in case No. H/C 964/07. Having
perused the cause of action set out in the respondent’s summons, the applicant filed a
notice of exception on 27 March 2007. Respondent says that the applicant’s summons
were not endorsed in terms of r 13 of the Rules of this court. Accordingly, a declaration
had to be filed by the respondent. On 20 April 2007 the applicant requested further
particulars to the respondent’s claim. The respondent was not prepared to file these and
the respondent proceeded to file a notice of a bar. In order to avoid becoming involved in
side issues and following telephone conversation between parties, it was agreed that in
the event of the applicant filing a plea to the respondent’s claim the bar would be lifted.
Applicant then filed his plea on 26 April 2007 denying that he was in wrongful and
unlawful occupation. Respondent was unhappy with the plea and refused to remove the
bar. Applicant is of the view that his plea is as cryptic as the respondent’s cause of action
in the summons which he says does not truly and concisely state the nature of action.
        Respondent had a lease agreement with the applicant, which agreement had
terminated on 31 December 2006. Respondent was seeking the eviction of the applicant
from the premises, on the basis that he was an undesirable tenant. Respondent alleged the
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applicant was in breach of the lease agreement and that he was persistently in arrears with
his rentals and had put up an illegal structure at the leased premises.
        The issues to be determined in this matter are whether or not the summons state
the cause of action and secondly whether the applicant’s plea truly and concisely set out
the applicant’s defence, if any. As stated above the applicant’s position is that summons
were not endorsed with particulars of claim and that in the circumstances a declaration
was required. On the other hand the respondent contends that summons were indeed
endorsed with particulars of claim which state clearly the nature , extent and grounds of
the cause of action as required by Order 3 r 13 (2).
        The requirement for a document to bear an endorsement was dealt with in Estate
Sauna v The Master, High Court (SR) and Anor , 1956 (1) SALR 158 AD AT 162 where
it was held that:-
        “There can be no doubt that the word ‘endorse’ is capable of more than one
        meaning. One of those meanings is the writing on the back of a document. This
        definition is not of universal application. An endorsement may equally be on the
        face of the document. See Shrouds Judicial Dictionary 3 rd Edition, Volume 2 p
        952. It seems that the endorsement need not appear on the back of the summons
        nor be separate from the rest of the summons or document. In terms of Order 3 r
        15, there is a requirement that the summons shall have endorsed thereon an
        address for service. In practice this endorsement is contained in the body of the
        summons itself, and the particulars of claim can also therefore appear in the body
        of the summons itself. What is important and essential, in my considered view is
        that whenever the cause of action is stated in the summons, it has to be clear
        enough to notify defendant of the cause of action which would enable defendant
        to plead without the need to even request for further particulars or to leave him in
        any doubt as to the cause of action. As long as the cause or action is clearly stated
        in the body of the summons, a plaintiff would enjoy the option of leaving out a
        declaration. In casu, the body of the summons claims; an order evicting defendant
        and all persons holding through it from the premises on the ground that the
        plaintiff is the owner of the property, and the defendant is in wrongful and
        unlawful occupation thereof, plus costs of suit’’

                It is my view therefore that those particulars as disclosed on the summons
        cryptic though they may be, truly and concisely state the nature, extend and the
        grounds of the cause of action. There would be little, if any point, in issuing a
        declaration in exactly the same terms. Since the respondent’s claim is based on a
        vindicatory action, whose essential averments are ownership and possession by
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       applicant, it is not necessary to state in the summons that applicant is in unlawful
       possession because the onus is on the possessor of the property, owned by
       another, to establish his right to possession. It is unnecessary to allege
       unlawfulness as it does not change the incidence of onus.
       The next issue to consider is whether or not the respondent’s plea set out his
defence. It seems to me that neither his plea nor his founding affidavit set out his defence.
Some attempt was made to establish a defence in his answering affidavit, but this should
have been one in his founding affidavit. Even if one were to ignore or overlook this
defect the answering affidavit still does not set out a defence. It should be stressed that
the onus is on the applicant to establish his entitlement to occupy somebody s property. A
plea of a bare denial, as is the case here, does not discharge the onus which rests on the
applicant. On the face of the lease agreement between the parties, which lease terminated
in December 2006 for the applicant to claim the right to stay after the termination, he
would have to establish one of the following:
       (a) that he is a statutory tenant,
       (b) that there has been a tacit relocation of the lease and
       (c) that he has negotiated a renewal of the lease with the landlord.
       Applicant has failed to establish any of the above. He cannot be a statutory tenant
because he is in breach of the lease agreement. In terms of clause 5 of the lease
agreement, the rent is to be increased each quarter by 25% or the rate of inflation
whichever is the greater. The rate of inflation shall be determined by the lessor s
accountant. It appears that applicant has neither paid the 25% increase nor any rate of
inflation and is therefore in breach of the lease agreement. The protection afforded to him
as a statutory tenant does not prevail in this situation. Even if there was tacit relocation of
the lease he is still in breach of the lease agreement. Clause 31 of the agreement provides
that if he fails to pay rent on due date the lessor has a right to cancel the lease forthwith.
It is also a fact that the applicant has been unable to negotiate a renewal of the lease
agreement.
       In the premises, I find that the application has no merit whatsoever. It is therefore
dismissed with costs.
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Wintertons, applicant’s legal practitioners
Venturas & Partners, defendant’s legal practitioners