Zimbabwe Allied Banking Group LTD Versus M & M Fuels (Pvt) LTD

### Preamble
1
HH 281-12
HC 5832/09
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ZIMBABWE ALLIED BANKING GROUP LTD

versus

M & M FUELS (PVT) LTD

HIGH COURT OF ZIMBABWE

KUDYA J

HARARE, 29 June 2012

Opposed Application

K Gama, for the excipient/defendant

T Mpofu, for the respondent/plaintiff

KUDYA J:  On 20 November 2009, Zimbabwe Allied Banking Group Ltd issued summons out of this court seeking an order of specific performance alternatively damages.  It was served by the plaintiff’s legal practitioners Mawere and Sibanda on the defendant’s legal practitioners, Madziwanzira, Gama and Associates on 3 December 2009.  Appearance was filed on 8 December 2009.  On 7 January the defendant requested for further particulars, which were supplied on 12 January 2010. Further and better particulars requested on 29 January were furnished on 3 February 2010.

On 29 January 2010, acting in terms of order 21 r 140, the defendant requested the plaintiff to purge the summons and declaration served on 3 December 2009 on the ground that both document were not signed and date stamped by the registrar in accordance with r 9 of the rules of court. The defendant considered the summons served as a draft and intimated it would not file any further process until a valid summons had been served and warned of launching an application to remove the summons if corrective action was not taken. On 2 February, the plaintiff highlighted the presence of the registrar’s stamp on the copy served on the defendant on the second from last paragraph of that disputed summons that the defendant caused to be issued out of the High Court again on 1 February 2010 “near eleven (20 811) litres of”.  In addition it attached its file copy and stated that the registrar had confirmed issuing the summons on 20 November 2009.  The dispute raged on in the letters of 11 February from the defendant and the response to it of 1 March 2010.   On 1 March the plaintiff pointed to the endorsement of a case number and the registrar’s stamp on the copy in dispute and the presence of the signature on their file copy as proof of its validity.

On 12 March, the defendant excepted to the plaintiff’s summons and declaration on the ground that the copy of the summons served on its legal practitioners on 3 December 2009 was invalid for want of the signature and date stamp of the registrar of the High Court as mandated by Order 3 r 9 of the rules of court.  It applied for date of set down on 9 April.

On 14 April 2010 the plaintiff requested the defendant to plead over to the merits.  On 27 April the defendant declined and gave the plaintiff 5 days to file its opposition to the exception.  On 14 May the plaintiff wrote to the defendant intimating that its set down notice was in terms of r 238 (1a) void for want of heads of argument and requested its plea within five days. The response came on 19 May disputing the invalidity of set down and challenging the plaintiff to set the exception down. The defendant was surprised at the request for heads before the plaintiff had filed a notice of opposition. On 5 August the registrar declined to set the matter down without heads.

The impasse drove the plaintiff to seek for directions from this court on 28 February 2011 for the exception to be determined at the trial as it had not been set down in accordance with r 138 (a) or (b) and an order that the defendant pleads over to the merits within 4 days and costs on the higher scale.   The parties did not agree on date of set down within 10 days to 26 March 2010.  The defendant had until 1 April (4 days) to do so on his own.

The application for directions was opposed, although the opposing papers were not attached.  On 5 April 2010, a judge declined to deal with the matter on basis that the rule relied upon permitted the plaintiff to set the exception down. On 3 August the plaintiff withdrew the chamber application and tendered the defendant’s wasted costs. It also filed a 5 days notice to plead and intention to bar. On 16 August the defendant filed a special plea to the notice to plead raising the propriety of such a notice in the face of a pending exception challenging the validity of the summons on which the notice stood.

The plaintiff filed heads of argument on 7 October 2011. They were served on the defendant on the same day. The defendant filed heads on 21 October 2011.

The only issue for determination is whether the defendant complied with the provisions of Order 21 r 138 in setting down the exception. It reads:

“When a special plea, exception or application to strike out has been filed—

the parties may consent within ten days of the filing to such special plea, exception or application being set down for hearing in accordance with subrule (2) of r 223;

failing consent either party may within a further period of four days set the matter down

for hearing in accordance with subrule (2) of r 223;

failing such consent and such application, the party pleading specially, excepting or

applying, shall within a further period of four days plead over to the merits if he has not already done so and the special plea, exception or application shall not be set down for hearing before the trial.”

It is apparent from r 238 (1a) of the rules of court that in the absence of heads of argument, the defendant had not set down the purported exception.  I agree with Mr Mpofu, for the plaintiff, that in terms of r 138 (a) the 10 days by which the exception could be set down by consent expired on 26 March 2010, and in terms of r 138 (b) the further 4 days by which the excipient could of his own accord do so expired on 1 April 2010. The excipient was automatically barred by 8 April 2010 when he purported to set the exception down.  In fact by operation of law, he had until 9 April 2010 to plead over to the merits  The notices to plead that were directed at the defendant by the plaintiff were in terms of Order 12 r 80. The defendant had no legal basis for refusing to plead.

The special plea was based on an exception that had not been set down. It must follow that it cannot stand on its own. It fails and must be dismissed.

I could only determine the validity of the exception if it had been properly set down.  Rule 138 (c) provides that the question of its validity must await trial. I cannot therefore in the present application uphold or dismiss the exception as that will be the privilege and province of the trial judge.

The respondent has succeeded in this application.  It is entitled to its costs.  It prayed for costs on the higher scale. I agree that the failure by the applicant to plead and set the present matter down was a dilatory tactic that amounts to an abuse of process. The respondent prayed for higher costs against the applicant’s legal practitioner, mainly on the merits of the exception. Rule 138 (c) does not permit me to delve into the merits of the exception. I cannot therefore order costs de bonis propiis against Mr Gama. Rather, I find it proper to mulct the applicant with costs on the scale of legal practitioner and client for putting the respondent out of pocket in setting down and arguing the present application.

Accordingly, the application is dismissed for the reason that the exception is not properly before me with costs on the scale of legal practitioner and client.

Mawere & Sibanda, the plaintiff’s legal practitioners

Madzivanzira, Gama and Associates, the defendant/excipient’s legal practitioners