UCHENA J: The appellants
were according to a lease agreement they and the Estate late Givie Chizema
signed the respondents' tenants. The respondents are co- executors of the
Estate late Givie Chizema.
The appellant's were sued
by the respondents in the Magistrate's court. They entered appearance to defend
and pleaded against the respondent's claim leading to the case being set down
for a pre-trial conference. The appellants did not attend the pre-trial
conference leading to the respondents' applying for a default judgment which
was granted.
The appellants applied to
the court aquo for the rescission of
the default judgment. The court aquo
dismissed the appellant's application. The appellants appealed to this court against
the dismissal of their application for recession.
The appellants premised
their appeal on the following grounds of appeal;
1. The
magistrate in the court aquo erred by
failing to find out that only one of the appellants was part of the lease
agreement.
2. The
magistrate erred by failing to find out that the matter was res judicata.
3. The
magistrate erred by failing to find out that the respondents were representing
a deceased estate, therefore, they had to furnish the court with properly
issued out letters of administration.
4. That
the magistrate misdirected himself by failing to find out that the appellants
were not in wilful default of court and that the explanation given was
reasonable, as the appellants' representative is a sole legal practitioner and
was attending a matter in the High Court.
5. The
magistrate misdirected himself by failing to find that the appellants had a
bona fide defence to the respondent's claim.
6. The
magistrate also erred by failing to find out that the lease agreement was not
properly drawn out and therefore invalid.
7. The
magistrate failed to find out that the appellants' at all material times
defended the matter and as such the matter needed to be determined on the
merits and not on technicalities.
One appellant
The
appellant's allegation that there is only one appellant is not supported by the
facts the appellants placed before the court. The lease agreement on pages 13
to 15 of the record indicates that the first appellant was the tenant
represented by the second appellant. The first appellant in its founding
affidavit for the application for rescission on p 41 of the record para 7 said.
“1st respondent is a law firm and has never operated from 51 Kambanji Drive, Glen
Lorne, Harare; which is a residential place. The only reason it was joined as a
party was that the 2nd respondent who rented the place is a main
partner in the 1st respondent”. This is not correct because the
lease agreement indicates that the first appellant is the leasee represented by
the second appellant. This confusion was created by the appellants who
unnecessarily involved a law firm in the second appellant's lease agreement. Mr
Dembure for the respondents therefore
correctly pointed out that second appellant, “used 1st appellant as
a vehicle to create legal complications, yet he negotiated the lease for his
own benefit and comfort”. It is apparent from the record that the second
appellant is the alter ego of the first appellant. He seems to have used the
law firm to drag his weight around and end up bullying the respondents as he
seems to be doing. That could only have
been unravelled at the trial. As things stand both appellants have been
correctly cited as they are indistinguishable parties. The first appellant is
the lessee while the second appellant is the occupant. It is therefore clear that the first appellant
is involved as the lessee, while the second appellant is the one who stayed at
the leased property. There is therefore no merit
in this ground of appeal.
Res Judicata
The
appellants alleged that this case was res
judicata because case No 27732/12 between the same parties and on the same
facts was dismissed by the court aquo
on 30 January 2013 and that summons issued under case No 24504/12 were
withdrawn. It is common cause, that case No 27732/12 was dismissed for want of
proper citation of the parties. It was not heard on the merits. It is therefore
not res judicata. The withdrawal of
the summons in case no 24504/12, did not dispose of the matter on the
merits. The principle of res judicata
only applies, were the case has been determined on the merits between the same
parties. There is therefore no merit in this ground of appeal.
Respondent's Letters of
Administration
The
appellants submitted that the respondents who were representing a deceased
estate should have furnished the court with properly issued out letters of
administration. The issue of locus standi
should be raised as a special plea or a preliminary issue which can be
determined separately before the hearing or at the hearing of the case at the
instance of the aggrieved party. There
is no evidence on record that it was raised as a special plea and set down for
determination. The appellants should therefore have attended court to raise it
as an issue for trial. Their failure to attend the pre-trial conference
deprived them of an opportunity to raise it as an issue for trial. The
appellants therefore denied themselves an opportunity to raise this issue. It
cannot therefore be raised on appeal against the dismissal of their application
for recession.
Wilful Default
The
appellants erroneously appealed against the magistrate's decision on this
aspect. The magistrate had found them to not have been in wilful default. In
his reasons for judgment the magistrate said;
“An
applicant must satisfy two requirements for the application to succeed.
Firstly, that he was not in wilful default and he has a bona-fide defence to
the claim. On the first requirement the applicant without more passes.”
The magistrate had
clearly found that the appellant was not in wilful default.
It is strange that the appellants appealed
against a finding in their favour. This has however brought before the court a
point of law which must be corrected. The appellants had in their application
for rescission told the court aquo
that they had not attended court because the second appellant was appearing in
the High Court which should be given precedence if a Legal practitioner 's
attendance is required in both courts. The respondent in responds to this
ground of appeal submitted that a litigant cannot choose to go to work instead
of going to court and there- after say that he was not in wilful default. It
seems the respondent was also of the mistaken view that the magistrate had
found in the respondent's favour on this aspect.
When the court mero motu, raised this issue which it
was entitled to do, the parties fully ventilated it. It is now trite that a
point of law can be raised at any stage even on appeal. See the cases of Trustees, Leonard Cheshire homes Zimbabwe
Central Trust v Chite & ors
2010 (1) ZLR 631, Muchakata v Nertherburn Mine 1996 (1) ZLR 153 (S) at
157. Nissan Zimbabwe (Pvt) Ltd v Hopitt (Pvt) Ltd 1997 (1) ZLR 569 (S), Zesa v Bopoto 1997 (1) ZLR 126 (S). The point of law which arises in this
case is does the precedence created by the hierarchy of courts apply in cases
where a legal practitioner chooses to go to work instead of attending court as
a litigant. Put differently can a litigant deliberately choose to go to work
instead of attending court, and not, be in wilful default.
The appellants were given
notice of the set down of a pre-trial conference. They do not say they were not
aware of the set down date. They say their representative one Kelvin Musimwa is
the only Legal practitioner in the law firm. He was appearing in the High Court
hence did not appear in the Magistrate's Court where he and his law firm were
litigant's. Mr Dembure for the
respondent submitted that a legal practitioner who is a litigant in a lower
court cannot hide behind the hierarchy of the courts to avoid attending his
case at the lower court. I agree. There is a vast difference between a legal
practitioner appearing for litigants in the High Court and the Magistrate's
Court, and a legal practitioner who is a litigant in the magistrate's court and
has a case he should be representing in the High Court. In the former case his
appearance in the High Court takes precedence. In the later, case his appearing
in the magistrate's court should take precedence. The reason is simple. A
litigant cannot come before the court and say “I did not come to court to
defend myself against the plaintiff's case, because I had gone to work”. A legal
practitioner goes to the courts to work for his clients. When he is required to
go to court as a litigant he is going there to represent himself as a litigant
and cannot give priority to his own work. A litigant, who chooses to go to work
instead of going to court to prosecute or defend his case, will obviously be in
wilful default. This is because attending court takes precedence over going to
work. Litigants should excuse themselves from their work so that they can
attend court.
In this case the second
appellant fully aware of the need to attend court with the 1st
appellant as co-litigants chose to go to work to represent clients instead of
attending their own case. The 1st appellant also chose not to
attrend. The second appellant's explanation that the case he was representing
in the High Court was rolled over to the afternoon is not supported by the
purported affidavit of Prince Hurungudo because it was not signed by the
deponent, nor commissioned by a Commissioner of oath. There is no supporting
affidavit by Prince Hurungudo before the court. Even if it was not defective it
would not have been of any assistance to him because it does not state that he
asked to be excused on account of the case at the Magistrate's court. The
appellants' own affidavits do not state that they sought to be excused from the
High Court case or sought the postponement of their case in the magistrate's
court. A reasonable litigant seeks a postponement of one of the cases when two
cases he is involved in as a legal practitioner and a litigant are set down for
hearing at the same time. One cannot, just stay away, in the hope that he will
there-after apply for rescission on the ground that he was appearing in a
superior court for his client. The appellant's failure to contact the Magistrate's
Court and the legal practitioner for the respondents or to aver that he asked
to be excused from appearing in the High Court or the Magistrate's Court, are
indications that the appellants were in wilful default.
Once a Magistrate finds
that a party was in wilful default that should be end of the inquiry. This was
clearly spelt out in the case of Fletcher v Three Edmunds (Pvt) Ltd; Vishram
v Four Edmunds (Pvt) Ltd 1998 (1) ZLR
257 (SC) at p 260 B where GUBBAY CJ commented on the effect of wilful default
as follows;
“Order 30 Rule
2(1) of the Magistrates Court (Civil) Rules expressly provides that a
magistrate has no power to rescind where the default was wilful. The enquiry
terminates with that finding. Indulgence must be withheld. See Neuman (Pvt) Ltd v Marks 1960 R&N 166 (SR) at 168B-C; Gundani v Kanyemba 1988
(1) ZLR 226 (S) at 228F; Karimazando
v Standard Chartered Bank Zimbabwe
1995 (2) ZLR 404 (S) at 407E-F.”
It therefore follows that
nothing turns on the magistrate's consideration of the merits. He should not,
have taken them into consideration.
The finding of wilful
default renders the consideration of grounds of appeal numbers 5 to 7, which
are premised on the merits of their case and their having always wanted to
defend the case unnecessary.
The appellants' appeal is
therefore dismissed with costs.
MWAYERA J
agrees-------------------------------
Musimwa and Associates, Appellants'
Legal Practitioners
Zuze Law Chambers, Respondents' Legal Practitioners
