MAKONI J: Sometime in August 2005 and at a sale in
execution the applicant purchased the first respondent's rights title and
interest in Stand 124, The Grange Township of the Grange commonly known as
number 4 Wroxham Road The Grange Harare (the property). On 7 September 2005,
the second respondent confirmed the sale. The first respondent then filed and
objection to the sale in terms of rule 259. The second respondent dismissed the
objection on 4 October 2005.
The
first respondent proceeded to file an application, to this court, for the sale
to be set aside. The application was dismissed with cost on 1 June 2006. First
respondent appealed against the decision to the Supreme Court. The appeal was
struck off the roll for want of compliance with Supreme Court Rules. An attempt
to have the matter re-instated was dismissed by the Supreme Court on 4 June
2008.
In
the meantime, the second respondent, in a letter dated 4 January 2006, but only
delivered to the applicant on 4 February 2009, advised that he had recommended
that the sale be aborted as the creditor had paid in full. He also returned the
applicant's cheque which he advised was now stale.
On
11 May 2009, the applicant instituted an action whereby he claims an order directing
the second defendant to transfer the first defendant's right title and interest
in the property to him, ejectment of the first defendant and all those claiming
through her from the property and cost of suit. The first respondent entered
appearance to defend. The applicant then filed the present proceedings for
summary judgment.
It
was contended by the applicant that all issues raised by the first respondent
in her defence are res judicata. The
first respondent in effect seeks to impugn the validity of the sale of the
property. This issue has been adjudicated upon by this court and the Supreme
Court.
The
first respondent opposes the application on two main grounds. She contends that
the applicant claims damages, which are not liquidated, through summary
judgment procedure. In the summons and declaration, the applicant claims
holding over damages in the sum of $1000-00. In the application for summary
judgment the amount of $1 per month is mentioned. No application to amend the summons
and declaration was made.
Secondly
she contends that the applicant did not pay the purchase price. He made a
payment by a cheque which cheque was not deposited. The cheque became stale and
was later returned to him.
The
procedure of summary judgment is not available in a claim for damages which are
not liquidated. In casu the first
respondent puts in issue the question of liability and obviously the quantum.
It does not assist the applicant to reduce the claim to nominal amount of US1
as he still has to prove the basis for claiming the amount. In any event, the
applicant cannot use the affidavit in summary judgment proceedings to amend the
summons and declaration. It is merely supposed to verify the cause of action.
In actual fact there is no room for amendment of the summons in an application
of summary judgment. See Cold Storage
Commission of Rhodesia
v Gey Van Pittius GB 21/73 (not reported).
Applicant
submitted that if the court were not inclined to grant to damages, if can still
grant the other relief claimed. His application is three pronged and severable.
Each claim should be considered separately.
In
the case of Garlicks Wholesale v Davis
1927 CPD 185 as quoted in Hugo Franco
(Pty) Ltd v Gordon 1956(4) SA 482 at
484 D-F GARDNER JP remarks:
“summary judgment could only be
granted in respect of all the plaintiffs claims in his summons not only such as
he selected as the separate subject of summary judgment”
MURRAY CJ in the Hugo Franco case supra continued:
“Prime
facie, the plaintiff could have avoided those difficulties if, prior to
making its application for summary judgment, it had amended its summons
abandoning its alternative claim for the payment of damages and its claim for
interests”
I
share the view as expressed above. Summary judgment procedure is meant to be
simple and straight forward. If parties were allowed to amend or sever claims
at summary judgment, it defeats the whole purpose of having the procedure in
place. It is no wonder that an applicant is not allowed to file an answering
affidavit in summary judgment proceedings.
In
casu, the plaintiff could have
amended its summons abandoning the claim for damages before filing the present
application. The applicant cannot succeed in its quest to have the order severed.
Assuming
I am wrong on the point, I will proceed to determine the other issues.
The
law of summary judgment is settled in our jurisdiction. It is a drastic remedy
in which the plaintiff, whose belief is that the defence is not bona fide and entered solely for dilatory
purposes, should be granted immediate relief without the expense, and delay of
trial. See Chiadzwa v Paulkner 1991(2)
ZLR 33(5) and Coleman v Sahange SC
132/91. It has far reaching consequences as it effectively denies the defendant
the benefits of the fundamental principle of audi alterem partem
rule. See Nedlaw Investments and Truth
Corp Ltd v Zimbabwe Development Bank S 5/2000.
It
can only be granted to the plaintiff when all proposed defences to the
plaintiff's claim are clearly inarguable both in fact and in law. See Chrisnar (Pvt) Ltd v Stutchbury and Anor 1973
(1) RLR 277 G at 279.
The
defence does not have to establish its defence on the probabilities. All she
need allege are facts which disclose a defence. These facts if pleaded and
accepted at the trial, must be sufficient to establish their defence. See Jena v Nechipote 1986(1) ZLR at 30.
The
first respondent's defence to the applicant's claim of specific performance is
that the applicant did not pay the purchase price. It is common cause that the
applicant made payment to the second respondent through a cheque. The cheque
was not deposited. The cheque was later returned to the applicant as it had
become stale. It is also common cause that the first respondent paid the
judgment creditor through other means.
The
issue of whether the applicant paid the purchase price of the property, is in
my view, not res judicata. It only
came to light in February 2009 when the applicant received the letter from the
second respondent advising that the sale had been aborted. The matter before
MUSAKWA J was concluded in June 2006.
The
applicant is suing for specific performance. He has not performed his
obligations in terms of contract of sale neither has he tendered performance.
Although he tendered a cheque to the second respondent, his estate was not
diminished by the amount of the cheque as it was not deposited: What the
applicant is asking the court to do is to order specific performance when he
was not paid a cent for the property. In effect he will get the property for
free. There is also the issue of when a payment by cheque becomes a payment in
terms of the purchases obligations
In
any event the first respondent paid to the judgment creditor through other
means and not from the proceeds of the sale. In sales in execution the
responsibility of officers of execution is first to the judgment creditor and
secondly to the debtors. See Maparanyanga
v Sheriff of the High Court & Ors 2003(1) ZLR 325 S at 335C. If the
first respondent paid the judgment creditor, could the second respondent still
proceed with the sale?
Having
considered the above, it is my view that the first respondent has alleged facts
which disclose a defence. In the result I will make the following order.
The
application is dismissed with costs.
Ziumbe &
Mtambanengwe,
applicant's legal practitioners
Manase
& Manase, first respondent's
legal practitioners
