MTSHIYA J: On 7 October 2011 the plaintiff (Gloar
Design Team) issued summons against the defendant for the following relief:
“(a) Payment of USD184 450-65 being an amount due and owing to the plaintiff by the
defendant in respect of services rendered.
(b) Interest on the above amount at the prescribed rate calculated from the date of
summons to the date of summons to the date of full and final payment both dates
inclusive.
(c) Costs of suit.”
Under para 1 of its declaration, the plaintiff went on to describe itself as
follows:
“1. The plaintiff is a company duly incorporated in terms of the laws of the
Republic operating and carrying on business from the 6th Floor,
Hungwe House, Suit 605, Jason Moyo Avenue, Harare, but for whose address for
service for purpose of these proceedings is care of its undersigned Legal
Practitioners, Messrs Scanlen & Holderness, 13th Floor, 74 Jason
Moyo Avenue,
Harare.”
The above description was incorrect because the plaintiff
is not a body corporate.
Upon filing an appearance to defend, the defendant
proceeded to file a special plea indicating that, because of the above
description of the plaintiff, the summons was a nullity.
The dependant, however, pleaded over and raised a
counterclaim for damages in the sum of US$165 461-00.
Since the special plea is based on the validity of the
summons, I shall not, at this stage, go into the details of the parties'
claims.
In its special plea filed on 14 November 2011, the defendant averred that the
summons and declaration are invalid because:
“(i) Gloar Design Team – as pleaded in the heading and thus citation of the parties
– is a juristic non-entity. Significantly the legitimately expected
suffix after 'Gloar Design Team' of “(Pvt) Limited or Limited” is absent.
The entity cited and pleaded by Plaintiff is a non-entity incapable of suing or
being sued in its own name.
(ii) The further averment in paragraph 1 of the Plaintiff's declaration that
“Plaintiff is a company duly incorporated in terms of the laws of the Republic
operating and carrying on business” is incorrect and denied. There is no
private limited or publicly listed company by that name registered in Zimbabwe
under the Companies Act. The Plaintiff accordingly has no locus standi
and is in want of juristic personality. Plaintiff's claim is fatally
defective.
WHEREFORE Defendant prays that Plaintiff's claim be dismissed with costs of
suit on a legal practitioner and client scale.”
In its replication, filed on 25 November 2011, the
plaintiff responded to the special plea in the following terms:
“Having regard to provision of
Rule 8C of the High Court Rules RGN 1047/71 regarding proceedings against
persons under their trading name, the citation of the Plaintiff by its trading
name is not fatal to the proceedings and hence the special plea must
fail.”
The above response from the plaintiff was, in my view, correct in law.
At the commencement of the trial the plaintiff, as a way of dealing with the
special plea, applied to amend para 1 of its declaration to read as follows:
“1. The plaintiff is a registered Architect by the name of Owen Chikuhuhu trading
as Gloar Design Team whose address for service for the purposes of these
proceedings is care of his undersigned legal practitioners, Messrs Scalen &
Holderness, 13th Floor, CABS Centre, Harare.”
The application to amend the declaration was strongly opposed.
Mr Moyo, for the plaintiff, submitted that the amendment was
necessitated by the need to properly describe the plaintiff. He said
there was no intention to substitute the plaintiff. He said the architect
trading under the name 'Gloar Design Team' was Owen Chikuhuhu and that r 8c of
the High Court Rules 1971, allowed for the said Owen Chikuhuhu to issue summons
in his business name.
Indeed order 2A of the High Court Rules 1971 which was
promulgamated under Statutory Instrument 192 of 1997, came into force on 1
October 1997. Rules 8A, 8B and 8C thereunder provide, as follows:
“8A. Naming of associates
(1) In any proceedings to which an association is a party, any other party may, by
written notice to the association, require a statement of the names and places
of residence of the persons who were the association's associates at the time
the cause of action accrued.
(2) A person who receives a notice in terms of subrule (1) shall, within five days
after receiving it –
(a) furnish the party concerned with a written statement containing the required
information; and
(b) file a copy of the written
statement with the Registrar; and the proceedings shall continue in the same manner, and the same
consequences shall follow, as if the associates had been named in this summons
or notice commencing the proceedings:
Provided that the proceedings shall continue in the name of the association
except where a writ of civil imprisonment is sought against an associate, in
which event the associate shall be specifically named in the civil imprisonment
proceedings.
8B. Declaration of persons to be associates
(1) Where proceedings have been instituted by or against an association in
terms of this Order, the court or a judge may, on court application made by any
party to the proceedings either before or after judgement, declare any person
to be an associate of the association.
(2) Upon a declaration being made in terms of subrule (1), the proceedings shall
continue in the same manner, and the same consequences shall follow, as if the
person who is the subject of the declaration had been named in the summons or
notice commencing the proceedings.
8C. Proceedings by or against persons under their trade name
Subject to this Order, a person
carrying on business in a name or style other than his own name may sue or be
sued in that name or style as if it were the name of an association, and Rules
8A and 8B shall apply, mutatis mutandis, to any such
proceedings.”
Clearly r 8c equates a business name to an association.
However, notwithstanding r 8c above, Advocate Girach,
for the defendant persisted that there was no valid summons before the
court. He said the court could not be asked to amend a
nullity.
In the main, Advocate Girach relied on Stewart
Scott Kennedy v Mazongororo Syringes (Pvt) Ltd 1996 (2) ZLR 565
(5) and J.D Magro-Consult & Marketing (Pvt) Ltd v Editor, The
Herald & Anor 2007 (2) ZLR 71 (H).
In Stewart Scott Kennedy, (supra), the Supreme Court stated the
following:
“But the crucial distinguishing
feature is that the institution of the action in the name of Stewart Scott
Kennedy was void ab initio. Without a plaintiff there can be no
claim. A document which purports to be a summons requiring the defendant
to comply with a claim of a non-existent person, is null and void as far as the
institution of the claim is concerned. The plaintiff is the one who
issues the challenge to litigation (see Voet 5.1.9) and must be a persona.
If authority is needed for such an axiomatic statement it is to be found in Kelly
v Petersen 1948 (4) SA 958 (A).”
The above is a correct exposition of the law prior to 1 October 1997 when r 8c
was introduced into our High Court Rules 1971. In reading J.D Magro
Consult (Pvt) Ltd, (supra), I did not find any reference to r 8c
which was already in force. I noted, however, that there was, in that
case, reliance on Stewart Scott Kennedy, (supra), a case which was
decided before r 8c came into force.
As submitted by the plaintiff's counsel r 8c was relied upon in the decision in
The Sheriff of the High Court v Antony William Mackingtosh and 2
Ors HH 330/13. In that case MATHONSI J said:
“It is a celebrated principle of company law that a
company, once incorporated, becomes a fictious person. That is the whole
essence of the legalpersona principle of our law. To that extent
therefore, the use of the word “person” in r 8C should, of necessity include an
incorporation. In my view, an incorporation which carries on business in
a name or style can be sued in that name or style.”
As already stated the rule actually elevates the business/trade name to an association.
Apart from being guided by the fact that in terms of our
law, as from 1 October 1997 a party or “person carrying on business in a name
or style other than his own name may sue or be sued in that name
or style as if it were an association,” I readily associate myself with the
above enunciation of our current law on the issue before me.
On 7 October 2011, Owen Chikuhuhu, referred to in the proposed amendment,
decided to sue under his business name, Gloar Design Team, as permitted by r
8c. It cannot therefore be argued that as at that date there was no
plaintiff. The question of a nullity, in my view, is thrown away by r
8c. That being the case, there is a summons and declaration that the
plaintiff can amend. The issue of substitution does not arise and therefore the
defendant is estopped from arguing prescription. There has always been a
plaintiff.
In Stewart Scott Kennedy, (supra), the Supreme Court made the
following observations:
“Rule 132 of the High Court Rules stipulates that:
“… failing consent by all
parties, the court or judge may, at any stage of the proceedings, allow either
party to alter or amend his pleadings, in such manner and on such terms as may
be just, and all such amendments shall be made as may be necessary for the
purpose of determining the real question in controversy between the parties.”
The general principle which
guides the court in allowing an amendment is stated in Beck's Theory and
Principles of Pleading in Civil Actions 5ed para 83. It is that:
“an amendment will be granted
unless the application to amend is mala fide or would cause
prejudice to the other side which cannot be compensated by a postponement or by
an order for costs or both.”
There are very many cases in
which the court has granted applications for substitution involving the
introduction of a new persona upon being satisfied that no prejudice would be
caused to the other side.”
The above are the guiding principles placed before me in dealing with the
plaintiff's application to amend the declaration.
It is also important to note that r 8c must be read together with rules 8A and
8B. Accepting that r 8c treats a business name as an association, I
believe that the plaintiff can legitimately bring this application under r 8B
(1) which provided as
follows:
“Where proceedings have been
instituted by or against an association in terms of this Order, the court or a
judge may, on court application made by any party to the proceedings
either before or after judgement, declare any person to be an associate of the
association.” (my own
underlining).
In casu, the plaintiff seeks to declare that Owen Chikuhuhu is the
person behind the trading name “Gloar Design Team.”
The applicant wants to amend para 1 of the declaration in
order to properly describe itself. There is no substitution at all
because the plaintiff remains as was when summons was issued. In fact,
were it not for the incorrect description of the plaintiff in para 1 of the
declaration, there would, in my opinion, have been no need for the proposed
amendment. I believe all what the plaintiff is saying is:
“Whilst I should have cited
myself as Owen Chikuhuhu trading as Gloar Design Team, I want it to be clearly
known that I am the person trading under that name i.e Goar Design Team.”
The law allows him to do that by way of an application as he has done (i.e. r
8B (1) above). The record also shows that, through correspondence, the
defendant was always aware who Gloar Design Team was. I therefore find it
unbecoming on the part of the defendant to attempt to avoid court proceedings
through an unsustainable legal technicality. I also want to believe the
incorrect description of the plaintiff was made in error.
Indeed at the end of it all, I am asking myself why I have
had to write all this when r 8c is clear and unambigious. That rule
requires no supper legal interpretation. It simply says a person can,
with effect from 1 October 1997, sue and be sued under the business or trade
name he or she operates. There has to be evidence of the existence of a
person and the business name under which the person operates. That
is why rules 8A (1) and 8B (1) apply. In casu, the amendment is
being sought under r 8B (1) in order to make the correct declaration of the
person who trades under “Gloar Design Team” so as for the court to determine
the real issues of dispute between the parties.
The amendment, in my view, does not prejudice the defendant, who has, in any
case, already pleaded to the summons.
The application to amend the declaration should succeed and
that being the case, the special plea cannot be upheld. Our law allows
the procedure adopted by the plaintiff. The trial should proceed on the
basis of the pleadings already filed.
I therefore order as follows:
1. The defendant's special plea is dismissed.
2. The plaintiff be and is hereby granted permission to amend para 1 of its declaration
so that it reads as follows:
“1. The plaintiff is a registered Architect by the name of Owen Chikuhuhu trading
as Gloar Design Team whose address for service for the purposes of these
proceedings is care of his undersigned legal practitioners, Messrs Scalen &
Holderness, 13th Floor, CABS Centre, Harare;” and
3. Costs shall be costs in the cause.
Messrs Scanlen and Holderness, Plaintiff's
Legal Practitioners
Messrs
Honey & Blackenberg, Defendant's Legal Practitioners
