HUNGWE
J: Plaintiff, an incola, issued summons in April 2004 against first and second
defendants both peregrine, claiming
damages arising out of a motor vehicle collision that occurred in Harare on 8 February
2004. In early 2006 the defendants raised special plea to the jurisdiction of
the court. That special plea was upheld. On April 2006 plaintiff made a chamber
application in terms of which on 10 October 2006, this court issued an order
attaching certain of second defendant's mechanical horses and trailers
specified in the order. On 1 December 2006, plaintiff withdrew the proceedings
in HC 4819/04 and filed the present proceedings on 30 November 2007.
Plaintiff
is again met by the same plea as to the jurisdiction of this court in the first
special plea and with prescription in the second special plea raised by the second
respondent.
Mr Matinenga who appeared for the
plaintiff in the matter argued that plaintiff has effectively placed the
defendants within the jurisdiction by successfully securing an order to confirm
jurisdiction under HC 1857/07. As to prescription, he argued that since the
debtor is outside Zimbabwe
plaintiff's position is saved by s 17(1) (c) of the Prescription Act [Chapter 8:11]. That section provides
that:
"(1)
If -
(a)-
(b).....
(c)
the debtor is outside Zimbabwe:
(d)-
(e)....
and the period
of prescription would, but for this subsection, be completed before or on, or within one year after the
date on which the relevant impediment referred to in paragraph (a), (b) (c) (d)
or (e) has ceased to exist, the period of prescription shall not be completed
before the expiration of the period of one year which follows that date."
Mr
Phillips argued that as the plaintiff
withdrew his earlier action in HC4819/04 against the defendants, it follows
that prescription has run and he is barred from bringing this suit. I did not
hear him to say that the effect of that withdrawal was to render the attachment
to confirm jurisdiction under HC 1857/07 a nullity. Indeed it may have been imperfectly
drafted but the court order makes it clear what the essence of the application
was. The effect of the order is not in doubt. It confirms this court's
jurisdiction as there is another jurisdictional basis upon which the claim
against the defendants could be entertained. The delict was committed in Zimbabwe. The
attachment therefore serves to confirm that jurisdictional ground.
As observed by BECK
J in African Distillers Ltd v Zietkwiecz 1980 ZLR 135 @ 136F:
"The well
settled common law, for which there is no dearth of judicial authority, is that for claims that sound in money brought
by an incola or a peregrinus against a
peregrinus, there must be an arrest of the person of the defendant or an attachment
of his property in order to found or to confirm jurisdiction in those cases
where some other jurisdictional ground exists in relation to the claim - such
as, for example, that it arises from a contract or delict committed within the
Court's territorial limits if jurisdiction. Such arrests or attachments are
necessary in order to satisfy, albeit only partially and imperfectly in some
cases, the doctrine of effectiveness, for the Court will not concern itself
with suits in which the resulting judgment will be no more than a brutum
fulmen."
Applying
the above principles, I am satisfied that the plaintiff has succeeded in
overcoming the jurisdictional hurdle in his quest to satisfy his claim.
The
accident in which plaintiff was injured occurred on 8 February 2004. His claim
would be extinguished by prescription unless he served summons on or before 8th
February 2007.
The
plaintiff, by implication, admits that prescription has run. He however relies
on S 17(1) for the proposition that prescription shall not be completed before
the expiration of a period of one year following that date. As the debtor is
resident outside Zimbabwe,
in my view, plaintiff can seek the aid of s 17 of the Prescription Act [Chapter 8: 11].
In the result
both special pleas are dismissed with costs.
Musunga & Associates, plaintiff's legal practitioners
Gill, Godlontons
& Gerrans, 2nd
defendant's legal practitioners