Spriyano Investments (Pvt) Ltd v Allied Timbers (Pvt) Ltd

### Preamble
1
HCMTJ 48/24
HCMTC 286/24
7
HCMTJ 48/24
HCMTC 286/24
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SPRIYANO INVESTMENTS (PVT) LTD

Versus

ALLIED TIMBERS (PVT) LTD

HIGH COURT OF ZIMBABWE

SIZIBA J

MUTARE, 14 October 2024

CIVIL TRIAL – PRELIMINARY OBJECTION

Mr V. Chinzamba, for the plaintiff

Mr I. Nderere, for the defendant

SIZIBA J: This judgment deals with a preliminary objection that was raised by defendant’s counsel in his written submissions which were filed under cover of a letter dated 8 October 2024 when the trial in this matter was scheduled to commence on 10 October 2024. The preliminary objection by the defendant is basically to say that the plaintiff’s summons are a nullity or fatally defective and incurably bad at law for want of compliance with r 12(5)(d) of the High Court Rules, 2021. In particular, the summons are being impugned for their failure to give a concise statement of the nature, extent and grounds of the plaintiff’s cause of action and of the relief or remedies sought. When the matter was called on the said trial date, counsel for the plaintiff was prepared to oppose the preliminary objection albeit he had not filed written submissions. I heard oral submissions from both parties on the preliminary point only and reserved my judgment so as to dispose of the preliminary point before proceeding with the trial in the event that the preliminary point is not upheld.

AN OUTLINE OF THE PLAINTIFF’S CLAIM

The plaintiff’s claim in the summons is set out as follows:

An Order directing the Defendant to allow the Plaintiff to collect its 1 300 m3 pine logs from the Defendant’s field at ERIN FOREST in Nyanga or Alternatively payment of the sum of US$58 000.00 being the net value of the timber.

An Order directing the Defendant to allow the Plaintiff to harvest the timber on the two clusters that they allocated to them or Alternatively pay the sum of US$53 000.00 being the net value of the timber that the Plaintiff would have harvested from the two clusters.

Costs of suit.

The declaration that was attached to the summons is a lengthy document consisting of twenty four (24) paras. It lays out the background facts upon which the plaintiff’s claim is based. It alleges that the two parties entered into or signed a written contract whereof the plaintiff bought standing timber from the defendant which was to be cut into logs at agreed four clusters of the defendant’s field and transported away by the plaintiff for its use or benefit. There was to be a deposit of US$20 000 which the plaintiff did pay and there was also an agreed rate for the charges on the timber being sold. There was to be a written notice of seven (7) days in the event of any breach by the plaintiff. The contract was to subsist until 30 June 2024. The plaintiff was also obliged to plant twenty hectares with plants which the plaintiff did. There were occasions when the plaintiff was stopped by the defendant to cut timber and it was directed to plant more timber. On 15 May 2024, the plaintiff was stopped again on claims that some investigations were being carried out and plaintiff was alleged to have caused some variances on its reports which prejudiced the defendant. The parties finally resolved the stalemate in question and thereafter when the plaintiff wanted to collect the 1 300 m3 logs that he had cut and also to cut timber from the last two clusters that had been allocated it, the defendant refused to allow the plaintiff to collect the 1 300 m3 logs nor to cut the timber on the two clusters alleging that the contract had expired by 30 June 2024 as agreed. The plaintiff alleges that it was never notified of any breach of contract and that the stoppage of its works was unjustified and hence the claims as articulated in its prayer which is similar both in the summons and also in its declaration.

THE PROGRESS OF THE LITIGATION

The papers filed of record show that when the defendant was served with the summons and declaration, it filed its Plea. In its Plea, the defendant admitted most of the allegations in the plaintiff’s declaration pertaining to the terms of the contract. It alleged that the plaintiff could not be allowed to continue cutting the timber in the remaining structures and also that it cannot collect the 1 300 m3 logs already cut as the contract between the parties had lapsed or ceased to exist as from 30 June 2024. The defendant also alleged that the plaintiff had been fraudulent in causing a variance in the actual timber collected from its field although it agreed that the issue was settled by a sum of money that the parties agreed upon.

After the pleadings were closed and on 27 August 2024, the parties signed a joint pre trial memorandum after holding a pre trial conference before a judge in chambers whereupon the issues for trial were agreed as follows:

Whether or not the plaintiff is entitled to the 1 300 m3 of timber logs or their value in the sum of US$58 000.00 or equivalent in Zig.

Whether or not the plaintiff is entitled to harvest the timber on two clusters allocated to it in terms of the agreement or to be paid the value of the timber in the sum of US$53 000.00 or equivalent in Zig.

The parties also made admissions in the pre trial minute and thereafter a trial date was applied for and allocated. Both parties filed discovery papers and summaries of evidence. None of the parties ever requested further particulars of each other’s claims or defenses both before or after closure of pleadings.

SUBMISSIONS BY THE PARTIES

Mr Nderere’s submission was that defendant’s preliminary objection was capable of disposing of this matter without the need of a trial. He submitted that the provisions of r 12(5) (d) of the High Court Rules, 2021 were peremptory in requiring a concise statement of the nature and grounds of the cause of action and of the relief or remedies sought. He went further to say that in the absence of such particulars, the summons were fatally defective. He submitted that the situation was as if no summons had been filed at all. Counsel further submitted that any noncompliance with a peremptory rule led to a nullity at law and any pleading which did not comply with a peremptory rule was a nullity. He cited numerous authorities which included the following: Delta Beverages (Pvt) Ltd  v Zimbabwe Revenue Authority SC 09/19, Zimbabwe Open University v Mazombwe HH 43/09, Dabengwa and Another v Zimbabwe Electoral Commission SC 32/16, Munyorovi v Sakonda HH 467/21. His other submission was that pleadings must also identify the area of law upon which the relief sought is based. See Masendeke v Chalimba HH 354/14, Chifamba v Mutasa and Others HH 16/08, Sifara v Jemwa HCC 28/24.

Mr Chinzamba’s submission was that the preliminary point raised by the defendant at the eleventh hour just when the trial was about to commence was a delay tactic and that it had no merit. His submission was that the preliminary point had been raised just for the sake of it or as a tactical move to avoid going into the merits of the case. He referred to an admonition against such attitude by lawyers by my sister Muremba J in the case of Warren Hills Golf Club v Sunshine Development (Pvt) Ltd HH 623/23. Interestingly and properly so, he conceded that the plaintiff’s summons did suffer from the alleged defect in failing to outline the grounds of the cause of action and the relief sought. His submission was that the summons go hand in glove with the declaration and hence the deficiency had been cured by the declaration that was attached thereon. He referred to the case of Sifara v Jemwa (supra) where my sister Bachi-Muzawazi J in dealing with an exception based upon r 12(5)(d) of the High Court Rules, 2021 held that the summons could be cured by the declaration in a situation of this nature.  He also cited the case of Mavheya v Mutangiri and Others 1997 (2) ZRL 462 as an additional authority for that submission. Counsel for the plaintiff also pointed out that the fact that the defendant had pleaded to the summons without requesting for any further particulars was proof that there was no prejudice to it. He submitted that the costs should be in the cause because the defendant did not raise an exception at an earlier stage as he ought to have done as the plaintiff would have had an opportunity to rectify the defect. He submitted that since the summons cured the defect, there was no longer any need for the plaintiff to amend them before the trial could continue.

In his reply, Mr Nderere maintained his stance with the same vigor. His submission was that the case of Sifara v Jemwa (supra) was wrongly decided in so far as it says that the summons could be cured by the declaration. He urged me to depart from that position. His submission was that such an approach would go against the Supreme Court decisions which say that a pleading which does not comply with a peremptory rule is fatally defective and that it cannot be amended nor condoned. He also cited the case of Chikura N.O v Al Shams’ Global BVI (Pvt) Ltd SC 17/17 as well as Practice Direction 3 of 2013. His final submission was that since the summons were fatally defective and since no condonation application had been filed, there was no basis for the court to condone the noncompliance and hence the matter should be struck off the roll.

THE ISSUES FOR DETERMINATION

The critical issue that is discernible from the above contestation and which can dispose of the preliminary objection is as follows:

Whether a summons which fails to give a concise statement of the nature, extent and grounds of the cause of action and of the relief or remedy sought as required by r 12 (5)(d) of the High Court Rules, 2021 is fatally defective so as to warrant the matter to be struck off the roll.

THE POSITION OF THE LAW

The submission that a failure to comply with a peremptory rule renders the resultant pleading or state of affairs to be a nullity is true in a proper context. The Supreme Court decisions which were relied upon by defendant’s counsel in forcefully making this submission relate to notices of appeal which do no comply with the peremptory requirements of the rules of court. That is what the case of Chikura N.O v Al Shams’ Global BVI (Pvt) Ltd SC 17/17 says together with many others. The other context is the case of Delta Beverages (Pvt) Ltd v Zimbabwe Revenue Authority (supra) which related to an application for leave to appeal which had been filed out of time without condonation having been sought.  If these authorities are applicable to the present matter, then the preliminary objection can succeed. If they do no apply, then a different conclusion may be taken.

Before going too far, one should begin with an enquiry as to what kind of sanction is provided in the rules or at law for a summons which does not comply with the peremptory provisions of r 12(5)(d) of the High Court Rules, 2021. The answer is found in the provisions of r 42(1)(b) and (d) which reads thus:

“42. Exceptions, special pleas, applications to strike out and applications for particulars

(1) As an alternative to pleading to the merits, a party may within the period allowed for filing any subsequent pleading—

(a) …….

(b) except to the pleading or to single paragraphs thereof if they embody separate causes of action or defence as the case may be where the pleading is vague and embarrassing or lacks averments which are necessary to sustain an action or defence, as the case may be;

(c) ……

(d) apply for a further and better statement of the nature of the claim or defence or for further and better particulars of any matter stated in any pleading, notice or written proceeding requiring particulars.” (Added emphasis)

Furthermore, rule 42 (10) (b) provides as follows:

“(10) At any stage of the proceedings the court may—

……

(b) order either party to furnish a further and better statement of the nature of his or her claim or defence, or further and better particulars of any matter stated in any pleading, notice or written proceeding requiring particulars.” (Added emphasis)

What the plaintiff’s counsel is saying in the preliminary objection is that the summons which do not comply with the peremptory provisions of r 12 (5) (d) are dead and that a decent burial will be an order to strike the matter off the roll with no need of a trial. I do not agree. The provisions of the rules cited above say that such summons or pleadings are not dead but sick and that they can be cured by being supplemented either through an amendment or a supply of a better statement or further particulars. At the very least, what the provisions of r 42 imply is that if the summons give insufficient details on the face of the claim, they cannot be said to be dead until a defendant approaches a court of law to certify them dead by upholding an exception. To say that the summons which do not contain enough particulars ex facie are fatally defective is to remove the need for raising an exception in terms of r 42. When the need for an exception is wrongly removed thus far, one would then take the stray path of petitioning the court to regard the summons as a nullity. Such would be contrary to the law. This is not what was intended by the framer of the rules.

In the context of the High Court Rules, 2021, it cannot be accurate to say that every pleading that does not comply with a peremptory rule is a nullity. That is not true. To demonstrate this point, a party who fails to comply with the peremptory provisions of r 36 which deals with the format and contents of pleadings can only be accused of having taken an irregular step whereby the opposite party has to move the court to set such irregular step aside. See r 36(18) of the High Court Rules, 2021. Rule 43 of the High Court Rules, 2021 deals with such irregular proceedings. It is therefore not correct at law to say that every pleading that is filed in a manner that transgresses a peremptory rule should be regarded as fatally defective or as a nullity. Such is a sweeping statement which can be misleading in other contexts.

Whilst it remains true that a Notice of Appeal that does not comply with the peremptory rules is fatally defective and also a nullity, such is not the case with a summons. The distinction lies in the provisions of the rules and also in the established legal principles of dealing with the two processes of an action and an appeal. A Notice of Appeal and a Summons are neither identical nor fraternal twins. The two are not of the same family. This is where the defendants missed the point in taking the submission that the summons are fatally defective. I do not agree. Summons which do not comply with r 12(5)(d) are not fatally defective before a defendant has exhausted the remedies given in r 42 as to how the claim should be dealt with by the court. The court may deal with them by upholding the exception, dismissing the exception, allowing an amendment or ordering a supply of further or better particulars of the nature and basis of the claim or relief. I therefore take the view that the summons in the present matter are not fatally defective. There is nothing going to the root of the action to invalidate it.

As correctly pointed out by Mr Chinzamba, the defendant ought to have filed an exception to the summons before pleading to the merits of the claim. The defendant should have only pleaded after the exception had been determined. This is what r 42(7) provides. It would also have been even much better for the defendant to have alluded to its preliminary objection at the pre-trial conference so that the judge then would have given proper directions in having the issue settled prior to the trial, but nonetheless, nothing prevents the court from dealing with the point of law on the date of the trial.

For purposes of dealing with the present preliminary objection, it suffices for me to hold that the plaintiff’s summons are not fatally defective and neither are they a nullity. There is no need for the plaintiff to apply for condonation for its failure to comply with r 12(5)(d) as the effect of such noncompliance is dealt with under the provisions of r 42. Since the particulars of the nature and ground of the cause of action and the relief sought were clearly set out in the plaintiff’s declaration to which the defendant pleaded without seeking any further particulars, there is nothing which should stop the trial from proceeding. I agree that a summons that is lacking particulars or facts supporting the cause of action or the grounds of the relief can be effectively cured by a declaration which contains such particulars. The position that was taken by my sister Bachi-Muzawazi J in Sifara v Jemwa (supra) is very much persuasive to me. If such was not the case, or if such summons were totally incurable, then the court would not have been granted any liberty to even order the supply of a further and better statement of the claim as is provided for in r 42(10)(b).  In the case at hand, the summons have now been cured. There is a proper claim for the trial to commence. The submission that the summons or pleadings should identify the area of law under which a claim or the relief is based should never be taken too far to the extent that one imposes a duty upon a litigant to plead the law or evidence. When the facts are clearly pleaded together with the relief sought and the basis thereof to constitute a valid cause of action, the particular area of law will be discernible and ascertainable to a legal mind. Ordinarily, the question of whether a party’s claim or defense meets the requirements of the law in an action is tackled during submissions and in the judgment unless an earlier preliminary objection is taken. I am satisfied that the current claim by the plaintiff has been sufficiently set out in the summons as read with the declaration and other subsequent pleadings. The defendant’s defense is equally clear. The issues for adjudication at the trial are clear and both parties did agree upon them. It is therefore in the interests of justice that the trial should proceed as there is no fatal defect afflicting the plaintiff’s summons. I will not award any costs to the plaintiff since it conceded that its summons were not properly framed. This effectively means that the defendant cannot be penalized for having taken its preliminary objection just before commencement of the trial.

In the result, it is ordered as follows:

The preliminary objection to the plaintiff’s summons that was taken by the defendant at the commencement of the trial in this matter be and is hereby dismissed.

The trial shall proceed on the 7th of November 2024 at 0900 hours as had been tentatively agreed by the parties.

There shall be no order as to costs pertaining to the defendant’s preliminary objection.

Mugadza, Chinzamba & Partners, plaintiff’s legal practitioners

Scanlen & Holderness, defendant’s legal practitioners