IAO Dtech Consultancy (Pvt) LTD V SDC OF Runyararo Primary School

### Preamble
1
HMA 53-22
CIV ‘A’ 43-21
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IAO DTECH CONSULTANCY (PVT) LTD

versus

SDC OF RUNYARARO PRIMARY SCHOOL

HIGH COURT OF ZIMBABWE

MAWADZE & ZISENGWE JJ

MASVINGO, 22 June, 2022

Written reasons provided on 14July 2022

Appellant in person

Mr Mpoperi for the respondent

Civil Appeal

ZISENGWE J:  	On the 22nd of June 2022 we delivered an ex tempore judgment striking off the roll with costs on the punitive scale, an appeal against the decision of the Magistrates Court sitting at Masvingo (“the court a quo”). The court a quo had granted an application for absolution from the instance in respect of a claim brought by the appellant for the recovery of certain sums of money allegedly owed to it by the respondent. At the written request of the appellant who is a self-actor, we now provide reasons informing the decision to so strike the appeal off the roll.

A precis of the background of the case is as follows. The appellant issued out summons in the court a quo alleging that it provided some computer related services at Runyararo Primary School in Masvingo pursuant to a contract it entered into with the School Development Committed of that school (the respondent). It also alleged that it supplied some computer accessories (which were referred to as ‘gadgets’) at certain agreed fees/prices but that despite its undertaking to pay the outstanding amounts, the respondent had neglected to pay up hence the institution of the proceedings.

The prayer as set out in the summons reads as follows;

WHEREFORE, plaintiff prays for the following against the defendant;

Payment of the sum of strictly US$2275 being amount due for the full N. Computing Network services on 12 – 24 February 2020.

Payment of strictly US$300 as cost of Gadgets replaced during servicing as requested and agreed by the plaintiff in three meetings to pay.

Payment of R15 000.00/US$1 000.00 as licence registration fees condition of sale agreed as under the signed continuation of contract with surety 2015 – 2020. Dealership to Client’s Terms and Condition of Sale.

Interest at a prescribed rate from date of summons to date of full payment

Cost of suit on attorney-client scale

The respondent entered appearance to defend on 20 November, 2020 and thereafter filed a special plea on 8 December 2020 challenging the legality of claiming payment in foreign currency in light of legislation prescribing the exclusive use of the Zimbabwe dollar for domestic transactions which was in force at the time.

The appellant reacted by filing a notice of amendment on 16 December 2020 apparently converting the figures in foreign currency to their equivalent in local currency. In return, the respondent filed a request for further particulars demanding the appellant to avail pertinent information on which the suit was supposedly predicated. It requested details of the contracts birthing the suit and challenged the appellant to provide any documentation (be it copies of contracts, receipts, invoices or quotations) among a host of other demands. All in all, the respondent requested for sixteen separate items or sets of items as further particulars.

The appellant then submitted a list of what it believed were further particulars requested. Ultimately, the respondent filed its plea completely denying ever having entered into any contract with the appellant let alone being indebted to it. It disputed the claim in its entirety and pointed out as it did that the absence of any paper trail negated the notion of there ever having been a contract between the parties. This then paved the way to the trial that ensued.

In the trial which followed, Mr David Israel Angel purportedly on behalf of the appellant, was the sole witness for the plaintiff’s case. In a word he testified that he was contracted to service Runyararo Primary School’s computer network at an agreed fee. He described himself as an author, bookseller and a trader in computer and computer related services and accessories. He indicated that the contract on which his claim was based was reduced to writing in a log book which regrettably remained in the possession of the respondent’s agents who were reluctant to produce it.

He further testified that he was contracted to service the respondent’s computers in 2019, but that the respondent had at that stage failed to raise the requisite funds for the proposed project and instead of servicing the network the respondent requested to provide what he referred to as “ledger guards” and the servicing of the school’s computer network was postponed to January 2020. He indicated that subsequently however, he and the chairperson of the respondent had agreed orally that he would service the school’s computer system for a period of 5 years and that was for a fee of US$2275 or its equivalent at the prevailing rate.

It was his evidence that the respondent reneged on its contractual obligation to pay when he had done 60% of the work which consisted of “reshuffling” the entire network, re-arranging gadgets, replacing certain components and configuring the network. Eventually he claimed to have completed 100 % of work which he was contracted to do.

He was subjected to some intensive cross examination regarding the alleged contract and the work supposedly undertaken by the appellant, the details of which are not relevant for current purposes, suffice it to say that at the close of the plaintiff’s case the respondent moved the court to grant absolution from the instance. The appellant resisted the application and filed a response spanning all of 42 pages of “tightly” typed paragraphs. His efforts in attempting to ward off the application for absolution from the instance came to naught as the court a quo in a 3-page ruling found that the appellant had dismally failed to show the existence of a contract between itself and the respondent let alone a breach of the same. It therefore granted the application for absolution from the instance.

It was against that ruling that the appellant appealed to this court seeking to have it overturned and substituted with one granting the claim originally sought.

The respondent opposed the appeal on four main grounds namely;

That the appellant’s notice of appeal was fatally defective for want of compliance with Order 31 rule 4(b) of the Magistrate Court and Rules, 2019 which requires the grounds of appeal to be stated concisely and clearly.

That the relief sought was incompetent as it sought to have judgment awarded to appellant at the close of the plaintiff’s case instead of having the matter remitted to the court a quo for same to proceed to the defendant’s case.

That the appeal was defective as it was noted against the decision of the Magistrate instead of that of the court.

That in any event there was no misdirection the part of the court a quo in granting the order of absolution from the instance.

However, before turning to the grounds of appeal and the prayer sought, it is necessary to address an issue which immediately captured our attention upon a perusal of the record of the proceedings a quo and which we raised mero motu. This issue relates to the locus standi of Mr David Israel to institute proceedings on behalf of the appellant.

We observed in this regard that no resolution had been filed by the appellant authorizing Mr Angel to so litigate on its behalf. Counsel for the respondent immediately latched onto this particular point and made it an additional basis for opposing the appeal. He attributed to oversight his failure to raise it either in the proceedings a quo or its heads of argument opposing the appeal.

Be that as it may, much as we tried to explain to Mr Angel the basics of separate legal personality of artificial persons, and the legal implications thereof and the need to file a company resolution authorizing him to institute or defend legal proceedings on behalf of the company, he stood firm and dug in. He insisted that as the holder of CR 14 he was ipso facto entitled to litigate on behalf of the appellant. It was clearly an exercise in futility to make him comprehend the necessity of so filing the required resolution.

In Madzivire & Ors v Zvarivadza & Ors 2006(1) ZLR 514 (S) it was held that a company, being a separate legal persona from its directors, cannot be represented in a legal suit by a person who has not been authorized to do so. CHEDA JA delivering the judgment of the court said the following;

“It is clear from the above that a company, being a separate legal persona from its directors, cannot be represented in a legal suit by a person who has not been authorized to do so. This is a well-established principle, which the courts cannot ignore. It does not depend on the pleadings by either party. The fact that the first appellant is the managing director of the fourth appellant to sue on behalf of the company in the absence of any resolution authorizing him to do so. In Burstein v Yale 1958 (1) SA 768 (W), it was held that the general rule is that directors of a company can only act validly when assembled at a board meeting.

There is no evidence that there was any service of a meeting to pass the required resolution authorizing the first appellant to represent the fourth appellant. Even if the first, second and third appellant had agreed on the action, there is in no indication that the first respondent, who is one of the directors, was served with a notice of a meeting of directors to pass the resolution of authority. Both the fourth appellant and the first respondent are entitled to be served with a notice of meeting so that a resolution be passed authorizing the first appellant to represent the fourth appellant. This was not done. Failure to do so renders the decision to represent the fourth appellant invalid”.

See also; Harold Crown & Anor v Energy Resources Africa Consortium SC 3/2017; First Mutual Investment (Pvt) Ltd v Roussaland Enterprises (Pvt) Ltd t/a Third World Bazzar & Ors HH 301/17 and Deputy Sheriff Chinhoyi v Appointed Enterprises & Ors HH 450/13.

There being no company resolution authorising Mr Angel to institute proceedings on behalf of the appellant that would ordinarily have been the end of the matter. However, out of an abundance of caution that we proceeded to further deliberate on the appeal regarding two of issues specifically raised by the respondent in its heads of argument in opposing the appeal which were for all intents and purposes preliminary points. These were firstly that the appeal was fatally defective for want of clarity and conciseness of the grounds of appeal in violation of the rules of the court and secondly that the prayer sought was at odds with the grounds of appeal.

Whether or not the notice of appeal is fatally defective

The appellant raised two grounds of appeal. Ground 1 alone consists of more than three closely typed pages, made up of 18 paragraphs!

Order 31 Rule 1(4) (b) of the Magistrate Court (Civil) Rules, 2019 provides as follows;

(4) A notice of appeal or cross appeal shall state –

(a) 	......

(b)	 in the grounds of appeal, concisely and clearly the findings of fact or rulings of law appealed against; and

(c) 	....

The need for conciseness and clarity cannot be over-emphasized. It has often been said that the noting of an appeal constitutes the very foundation upon which the case of the appellant must stand or fall. It serves to inform the trial court in clear and specific terms which part of his or her judgment is being appealed against, what the grounds on which the appeal is being brought are and whether they relate to issues of law or fact or both. This is particularly important for purposes of any comments the Magistrate may need to make in relation to the appeal in terms of Order 31 Rule 2. The said rule reads;

2. 	Magistrate’s comments to grounds of appeal

Upon the delivery of a notice of appeal the Magistrate shall within 14 days deliver to the clerk of court his or her comments in writing, so far as may be necessary, having regard to the written judgment already delivered by him or her -

the facts he or she found to be proved; and

the grounds upon which he or she arrived at any finding of fact specified in the notice of appeal as appealed against; and

his or her reasons for any ruling of law or for the admission or rejection of any evidence so specified as appeal against.

Couched in an incoherent and rambling fashion as the appellant’s grounds of appeal are, the Magistrate was no doubt hamstrung to properly respond thereto.

The notice of appeal also serves to inform the respondent of the case it is required to meet, and regard being had to the record and the Magistrate judgment and comments referred to above, whether it should concede or oppose the appeal.

It is not solely the unnecessary prolixity that afflicts the grounds of appeal but also their lack of clarity. In parts, the lengthy and long-winded grounds were, with respect, pure gibberish and the rest incomprehensible. It was virtually impossible to make out, for example to make out what the appellant meant by the following statement appearing on the first page of his notice of appeal.

“the court a cuo (sic) grossly misdirected itself by granting the application for absolution from instance raised by defendant, to an extend (sic) of failing to cite the applicant under P046/20: ruling submissions dated 06/10/2- who submitted that the job was performed at her school and was not paid is the same defendant being under case 211/20 that, as a court, it was supposed to blow off the application for absolution from instance on the basis that:

its prima facie was found a negligence prima facie case than a normal rule of law (in opposite of prima facie rule)”!

The rest of this first ground of appeal follows a similar pattern.

Apart from informing the Magistrate who presided over the proceedings a quo and the respondent of the nature of the complaint, the grounds of appeal should similarly inform the appeal court of the precise issues of contestation and crystallises the disputes and determines the parameters within which the court of appeal will have to decide the case. In the same vein, it also serves to focus the minds of the judges of Appeal when reading the records of appeal which is oftentimes voluminous, researching the law in point, considering argument and adjudicating the merits of the appeal.

Typically, a single ground of appeal consists of no more than couple of lines, but not with Mr Angel who insisted during the hearing of the appeal that there was nothing wrong with the appellant’s lengthy grounds of appeal. Try as we might to explain to him the fundamentals and requirements of a proper formulation of grounds of appeal, we might as well have been talking to a brick wall as he remained obstinate and argumentative.

Whether or not the prayer sought was incompetent

The respondent also correctly observed that the relief sought was incompetent as it was at cross-purposes with the grounds of appeal. The prayer sought reads;

WHEREFORE applicant (sic) prays the following;

The appeal succeeds with costs

The judgment of the court a quo (sic) be quashed and set aside and in its place the following is substituted;

“The application for Absolution for instance raised by the defendant be and is hereby dismissed.”

The order for the plaintiff to be paid his sum of US$3 575 as per claim in summons under case number 211/10 be granted as to costs (sic)

A certain interest from the date of summons to present be included on top of the sum of US$3 575

Exhibition of correspondence dated 13 and 14 February 2020 be used as an alternate of recovery by applicant to respondent being.

The reliefs sought in paragraph 3(c) and (d) were patently incompetent for obvious reasons. The court a quo could not take that giant leap of faith in granting the claim at the close of the plaintiff’s case in the event of finding the application for absolution from the instance unmeritorious. In Sambaza v A 1 Shams Global BV1 Ltd SC 3 – 18 the following though said in the context of similarly worded High Court rules, applies with equal force in relation to Order 31 Rule 1(4)(c) of the Magistrates Court rules:

“The exact nature of the relief sought referred to in r29(1) (e) refers to the type or characteristics of the relief sought. This means the relief sought must be the type relevant to the dispute between the parties. Therefore, the nature of the relief sought was wrongly framed and is incompetent as it refers to allowing an appeal and setting aside of an order, remedies which could not have been granted by the court a quo in a court application.”

The order sought in paragraph (e) is as incomprehensible as it is unenforceable and therefore incompetent.

It was on the basis of the foregoing that we found the appeal to be fatally defective and deserving to be struck off the roll. A defective notice of appeal lends itself to being struck off the roll, see Sambaza v A 1 Shams Global BV1 Ltd (supra).

Costs

We agreed with the respondent’s counsel that there was good reason for awarding costs on the punitive scale to mark our displeasure at appellant’s conduct in pursuing with vigour and tenacity an appeal which was flawed. Further that despite our best efforts to make the appellant’s representative see the light he remained obstinate and impervious to the court’s advice.

Accordingly, we struck the appeal off the roll with costs on the attorney – client scale.

ZISENGWE J

MAWADZE J. agrees...................................

Saratoga Makausi Law Chambers, respondent’s legal practitioners