Zohar Pablo v Patrick Toriro and Owen Mubhobho

### Preamble
1
HH 88-18
HC 5867/17
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ZOHAR PABLO

versus

PATRICK TORIRO

and

OWEN MUBHOBHO

HIGH COURT OF ZIMBABWE

CHAREWA J

HARARE, 28 November 2017 & 22 February 2018

Opposed Matter- Summary Judgment

O D Mawadze, for the applicant

Ms Mukwesha, for the respondent

CHAREWA J: The plaintiff (applicant) issued summons against the defendants claiming payment of $101 000 being the outstanding amount on an agreement of sale for a 25 tonne Volvo Conquip excavator EC250D 25L and two Powerstar VX tipper trucks, interest thereon at the prescribed rate from date of summons to date of payment in full, collection commission and legal practitioner and client costs.

I delivered an ex temporae judgment in which I granted summary judgment in favour of the plaintiff on 28 November 2017. The defendants (respondents) having appealed my decision, hereunder are my written reasons for the judgment.

The facts

The parties entered into an agreement of sale whereby plaintiff sold and the defendants bought the excavator and the two tipper trucks aforesaid for $130 000 and       $138 000 respectively, making a total purchase price of $268 000. $167 000 was paid by 20 April 2017 leaving a balance of $101 000 which was payable as follows:

500 tons of chrome or $50 000 to be paid by 24 April 2017; and

510 tons of chrome or $51 000 to be payable on 24 May 2017.

On behalf of the two defendants, Patrick Toriro signed an affidavit acknowledging this agreement and its terms on 20 April 2017.

In answer to the summons, defendants admitted the sale agreement but denied the total sale price. They also admitted the delivery of the excavator and trucks to them but denied that the balance of $101 000 was still due and payable, or if it was, they argued that they were still able to deliver the chrome instead. They therefore denied breach of the agreement of sale, joint and several liability or that demand had been made.

The issue

The single issue for determination is whether or not plaintiff is entitled to summary judgment in the amount of $101 000.

The Law

It is trite that summary judgment is an extraordinary remedy by which unscrupulous litigants seeking to delay a just claim are frustrated. Therefore for an applicant to succeed, he must show that he has a clear and unanswerable claim, and that any defences raised are inarguable both in fact and in law.

On his part, a defendant must aver facts on the merits which are sufficient to meet the standard that, if proved at a trial, they would enable him to succeed, or at the very least place before the court a prima facie defence. This has been interpreted to mean that a defendant must disclose his defence with sufficient clarity and completeness to enable the court to decide its bona fides.

Consequently, it is not every defence that will defeat summary judgment. For instance, the court has ruled that a defence which is bald, vague or sketchy is indicative of lack of bona fides and will not succeed. It also goes without saying that any defence raised must, in addition to being meritorious, be valid at law.

The role of a judge in summary judgment matters is to assess whether or not a bona fide and plausible defence, which could possibly succeed and thus lead to injustice if summary judgment is granted, has been raised. If the answer is yes, then the judge is obliged to deny summary judgment and refer the matter to trial. If not, the converse is true: summary judgment will be entered where an applicant has an unassailable cause.

Analysis

In assessing whether or not a prima facie defence has been raised which might enable a defendant to succeed the I have taken into account the undisputed facts that the defendants did enter into the sale agreement with the plaintiff and took delivery of the mex, that Patrick Toriro acknowledged indebtedness to the plaintiff on behalf of both defendants, that as at 22 May 2017, when summons was issued, the defendants had defaulted on the first instalment and that as at the date of the hearing the purchase price had not been paid in full.

With regard to the defence raised in a plea, it is trite that such a defence must, of necessity, be brief and precise so as not to offend the procedural requirement that evidence should not be pleaded. However, once summary judgment is applied for, in order to meet the requirements that one must raise a defence with sufficient particularisation so as not to be deemed bald, and to enable a judge to decide on its plausibility, a litigant must, in the opposing affidavit, give sufficient detail and facts of his defence to enable the court to assess its bona fides.

In this case, the opposing affidavit raises the defence that part of the debt was paid as plaintiff allegedly collected 580 tons of chrome. No facts are alluded as to the date and time when such collection was made, or the name of the person who did the collection or the registration number of the vehicle such person used. In the face of plaintiff’s assertion that no delivery or collection of any chrome was made, the defendants’ defence is therefore a bald statement with no factual foundation.

Further, the defendants do not deny that the balance of the chrome was never delivered or that any payment was made in lieu thereof. Instead, the defendants allege that “delivery ….was collection of the chrome from our mining location” and that the “balance of the tonnage is still available from our mining site” thus raising the presumption that plaintiff is supposed to have collected the chrome and failed to do so. Yet this is clearly not in consonance with the unambiguous wording of the contract between the parties. There is nowhere in the contract a term obliging plaintiff to collect the chrome. Any interpretation of that tenor is thus tantamount to making a new contract for the parties.

The ordinary interpretation of the payment clause is that defendant was expected to make payment to plaintiff, either by delivery of chrome or payment of money. In any event, this defence actually merely serves to confirm that defendants have not complied with the terms of the contract by delivering chrome ore or making payment sounding in money.

Ergo, being mindful of the principle that it is not every defence that can succeed to defeat summary judgment, I am not persuaded that the defences raised by the defendants are sufficient to defeat the plaintiff’s application for summary judgment. I am therefore left with no option but to conclude that the defendants have no bona fide defence to plaintiff’s claim.

Further, as at 3 July 2017, defendants were still making an undertaking to deliver the chrome per the acknowledgment of debt, well after the 24 May 2017 deadline for the final payment in terms of the agreement between the parties. Clearly, the defendants are in breach of the agreement between the parties.

In addition, the defendants never denied acknowledging their indebtedness nor did they put the acknowledgment of debt into issue. The acknowledgment of debt is for $101 000 or the equivalent of 1010 tons of chrome. Once defendants defaulted in paying in terms of the agreement, the plaintiff is, in my view, perfectly entitled to make a claim in the main: which is the payment of $101 000.

Finally, the defendants argue that plaintiff’s claim is precipitate in that summons was issued before the final instalment became due. I do not find such a defence to be meritorious. The plaintiff’s claim became due and payable upon the defendants defaulting on the first payment date of 24 April 2017. Nothing in the agreement between the parties suggests that the claim would only become due once the final payment fell due. Therefore as soon as defendants defaulted on the first payment, they were in breach of the agreement and plaintiff was entitled to call in the debt.

Consequently, it is my view that this is one of those matters where the defences raised cannot defeat summary judgment. There is no bona fide or plausible defence to plaintiff’s claim upon which defendants could reasonably expect to succeed. The plaintiff’s claim for summary judgment must succeed.

Costs

The plaintiff seeks costs de boniis on the grounds that Ms Mukwesha had a duty to professionally advise defendants not to waste the time of the court and the other party by mounting spurious, unmeritorious and hopeless defences to legitimate claims merely to delay judgment, particularly where defendants had been previously warned against such reprehensible conduct. Further, plaintiff is of the view that it is the duty of a professionally sound legal practitioner to withdraw services from an unreasonably stubborn client, rather than unnecessarily escalate costs in opposing an application in such circumstances.

While I largely agree with the plaintiff, it is my view that since Ms Mukwesha did not unnecessarily waste the court’s time in making any submissions during the hearing other than merely adhering to her heads of argument and did not contest the facts upon which my decision is based, costs de boniis or on the higher scale may be uncalled for. In light of this Mr Mawadze abandoned his claim for either costs de boniis or costs on the higher scale, and conceded that costs on the ordinary scale may be appropriate.

Disposition

CONSEQUENTLY, IT IS ORDERED THAT

Summary judgment be and is hereby entered in favour of the plaintiff in the sum of $101 000.

Defendants to pay costs of suit

Mawadze and Mujaya, applicant’s legal practitioners

Dube-Banda, Nzarayapenga and Partners, respondent’s legal practitioners