At
the hearing, Ms Makumbe and Mr Muchada of Dube, Manikai Hwacha
appeared on behalf of the first respondent, as a matter of courtesy.
The Court was told that the application had been served on Dube,
Manikai Hwacha, who, at times, represent the first respondent.
However, in this matter they did ...
At
the hearing, Ms Makumbe and Mr Muchada of Dube, Manikai & Hwacha
appeared on behalf of the first respondent, as a matter of courtesy.
The Court was told that the application had been served on Dube,
Manikai & Hwacha, who, at times, represent the first respondent.
However, in this matter they did not have instructions to represent
the first respondent. That development was communicated to the
applicant at the time that the legal practitioners were served with
the application. Nonetheless, the notice of set down was served on
Dube, Manikai & Hwacha.
The
applicant produced a document which he said was a return of service
of the application on the first respondent, following the
communication from Dube, Manikai & Hwacha. The applicant informed
the Court that he served the application at the first respondent's
place of business. The document did not indicate who received the
application on behalf of the first respondent.
There
was no proper proof of service of the application on the second and
third respondents.
Rule
9(2)(b) of the Rules provides that, where service is effected by a
litigant himself or herself or itself, proof of such service shall be
by way of an affidavit by the litigant that the document concerned
was served by him or her or it on the party concerned. The affidavit
of service must inform the Court how the service was effected.
That
was not done in this case.
The
Court, however, proceeded to hear the matter despite the
circumstances, because it was the applicant who bore the onus of
proving his case.
