CHEDA AJ: The judgment creditor issued summons against Haddon & Sly of 88
Fife Street, Bulawayo. In its declaration the judgment creditor gave the
address for service as 89 Five Street, Bulawayo. The summons was served
at that address. Haddon & Sly entered appearance to defend, giving
the same address and referred to itself as Haddon & Sly Limited. Its
plea to the claim also gave the same address. The claim was for a sum of
$45 597,20 for certain services including levies and water charges.
In its plea Haddon & Sly Limited simply denied the claim and said the
plaintiff is put to the strictest proof thereof. From thereon the matter
proceeded with the parties referred to in the same manner and using the same
address. One Onias Ncube who deposed to the defendant's affidavit said he
was authorised by the company in a resolution marked 'A'. However that
resolution authorizes Donna-Ray Campbell and not Onias Ncube. He said he
was representing the company as its manager. He filed an opposing
affidavit against an application for summary judgment. The summary
judgment was granted against Haddon & Sly on the 1st march 2012
for the sum of $45 597,20 and costs of suit on attorney and client scale.
Following this judgment a warrant of execution was issued, and the applicant
went to No 89 Fife Street, Bulawayo and attached stand No 391, City of Bulawayo
Lands.
Donna Ray Campbell filed an affidavit saying she represented Haddon & Sly
Properties (Pvt) Ltd and said she was authorized by the company's resolution
marked 'A'.
She said that Haddon & Sly was unknown to them. Instead Haddon &
Sly Properties (Pvt) Ltd is based in Harare and as per their lease agreement
the leasing company is responsible for settling all charges and levies relating
to the premises which include but not limited to rates, sewages, water,
electricity and refuse collection.
She said the Deputy Sheriff came with a writ of execution against one of their
properties, stand 391, Bulawayo Township, but Haddon & Sly Properties (Pvt)
Ltd has never been a party to the proceedings referred to in the court
documents with the Deputy Sheriff. She said the person or two persons on
the papers is Haddon & Sly and not the company with the words Private
Limited.
The above is a cunning attempt by Donna Ray Campbell to confuse the
issue. The judgment creditor has a long standing agreement with the
Bulawayo City Council for the payment of rates and other charges. The
appearance to defend was entered on behalf of Haddon & Sly Limited.
There was no “Private”. The address used is 89 Fife Street, the same
address is used in all the proceedings. A letter dated 13 June 2011 was
written to the judgment creditors' lawyers on behalf of Haddon & Sly from
the same address.
A sum of $2 500 was paid by Haddon & Sly in favour of the judgment creditor
on 2 April 2012. On 25th July 2012 a letter was written by
Donna Ray Campbell in connection with this matter, to the judgment creditors'
lawyers. It reads as follows:
“To Mr Moyo-Majwabu
It has come to our attention
that our former tenants Stanley's limited have defaulted on council rates
payments at our premises 89 Fife Street, Haddon and Sly Building. As such
they have incurred a bill that has forced you to try and attach one of our
stands. We would have wished to have been notified or rather have action
taken against this bill much earlier to it becoming so astronomical. None
the less we are prepared to intervene and ensure that the councils due's are
met. As such I request a member of your organization with whom I may
liaise with to set up a payment plan. Listed below are the account
numbers for each of the stands on our premises which we would like to deal
with.
Account 1: 41404615
Account 2: 40404608
Account 3: 41400507
Account 4: 41400705
Account 5: 41400509
Yours sincerely
Donna-Ray Campbell
Haddon & Sly Properties”
This letter destroys completely the argument raised by Donna Ray
Campbell. It was in fact written by herself. It is self
explanatory.
In one of her affidavits she says Haddon & Sly is a trade name of a company
known as Catsbury Trading (Pvt) Ltd. In his submissions on behalf of the
claimant Mr Nkomo said,
“Catsbury which trades as Haddon
& Sly is in occupation of the property which accumulated the rates.”
The judgment creditor says it has never dealt with Catsbury but with Haddon
& Sly. It is not disputed that Haddon & Sly has always been the
one paying the rates to the Bulawayo City Council over a long time. If,
as it seems a new company called Haddon & Sly properties was formed this
was never arranged with the judgment creditor to change the responsibility for
the rates and levies. In any case, the claimant is not Haddon & Sly
which was cited in the papers. If it is admitted that Haddon & Sly is
a trade name for Catsbury then they are one and the same. The attempt by
Donna-Ray Campbell to deny any knowledge of Haddon & Sly is simply
dishonest. The facts point to the fact that Haddon & Sly and Haddon
& Sly Properties are one and the same.
The papers also show that at one stage Haddon & Sly attempted to settle the
debt but did not make full payment. This is reflected by the receipt
referred to earlier.
At the hearing of the summary judgment application one Chipanguza who said he
was Director of Haddon & Sly Properties was assisted by Lazarus &
Sariff Attorney. It was after the attempt to settle that the sum of $2
500 was paid on behalf of Haddon & Sly.
Campbell signed documents for Haddon & Sly and also for Catsbury. A
stamp of Haddon & Sly was actually used in one of the documents from the
claimant. The above shows a clear abuse of the court process and should
properly be reflected by an order for costs on attorney and client scale as
prayed.
1. I therefore hold that
Haddon & Sly and Haddon & Sly Properties are one and the same.
2. The application by the
inter pleader succeeds, and the claimant's claim is dismissed.
3. The claimant is to pay
costs on attorney and client scale.
Dube-Banda & Nzarayapenga, appliant's legal practitioners
Advocate Nkomo for
claimant
James,
Moyo-Majwabu & Nyoni, legal practitioners for the
judgment creditor
