After
hearing argument in this matter I granted summary judgment and said
the reasons for doing so would follow. These are the reasons:
The
applicant and one Jacobus Andrew Summerfield are friends of long
standing. This did not stop the applicant instituting summons action
against the respondent, a company in which Jacobus Andrew Summerfield
is Managing Director, for payment of a sum of US$88,000= together
with interest at the prescribed rate and attorney and client costs.
In
his declaration, the applicant averred that he sold and delivered to
the respondent a UD Nissan 15 ton truck for a price of US$68,000=
about 2006 or 2008 which amount the respondent failed to pay. He
averred, further, that on 23 August 2010 the respondent acknowledged
indebtedness in that sum but still did not pay. Instead, after
negotiations, in February 2011, the respondent offered to pay that
capital amount together with an additional US$20,000= as fixed
interest in recognition of the lengthy delay in payment, hence the
claim of US$88,000=.
The
respondent entered appearance to defend the action prompting the
applicant to file this application for summary judgement on the basis
that the respondent has not a bona
fide
defence to the claim and has entered appearance for dilatory
purposes.
The
applicant maintains that no defence can exist in a matter such as the
present where the respondent signed an acknowledgement of debt in the
capital sum of $68,000= and went on to make an offer in writing to
pay fixed interest of $20,000= which offer was also accepted in
writing.
The
acknowledgement of indebtedness, signed by the parties on 23 August
2010, with the respondent represented by the applicant's erstwhile
friend, Jacobus Andrew Summerfield, has been submitted and it is on
the respondent's very own letterhead. It reads, in part, thus:
“We
hereby agree that J G Construction owes Mr Graeme Chadwick
US$68,000=. Any other acknowledgement of debts between J G
Construction, Mr Graeme Chadwick, and Mr Jacobus Andries Summerfield
are now null and void except for this one.”
In
addition to that, on 18 February 2011, Jacobus Andrew Summerfield
sent a written offer to the applicant, again, on the respondent's
letterhead, in the following:
“I
can offer you 88K as soon as you would like it and in one payment.”
This
was followed by another dated 25 February 2011 which states;
“I
think that you have misunderstood, Graham, I can only offer you $88K
in total but can arrange for that payment immediately.”
The
offer was accepted by the applicant by letter dated 17 June 2011
which also explains the route the parties took to arrive at the
figure. The applicant wrote:
“I
accept the offer of $88,000= in your email of 18 February 2011 and 21
February 2011 as the full and final amount owed by J.G. Construction
(Pvt) Ltd to me for the UD15 ton truck and trailer sold to J G
Construction in about 2006 or 2008.
We
agree that this amount includes the capital amount of $68,000=
contained in the acknowledgement of debt dated 23 August 2010 and
remaining $20,000= is the final amount agreed (offered and accepted)
as interest on the capital even though you had originally indicated
that you would pay me interest at 15% per annum, which is US$10,200=
interest per year, or $30,600= interest from 2008 or $51,000=
interest from 2006. In the end, you only offered me US$20,000=. I
accept it as the total interest from 2006 or 2008 to date.”
At
no time did the respondent refute the contents of the above quoted
letter. One can only assume that its silence represented its
acquiescence.
In
opposing the application, the respondent introduced a new element not
mentioned anywhere in the deliberations of the parties as appear on
the documents I have referred to. While claiming the existence of a
dispute as to the amount owing, the respondent stated that the
parties were in partnership and that the Nissan UD truck was the
applicant's contribution to the partnership. This, despite the fact
that no attempt whatsoever was made to prove the existence of such
partnership, either in the form of a partnership deed or otherwise or
to set out the terms of the alleged partnership.
In
fact, the respondent's opposing affidavit is couched in such scant
and vague terms as to put its bona
fides
to serious doubt. No meaningful effort was made to explain the
acknowledgement of debt and the written offer made by the respondent
and those documents remain unchallenged.
Counsel
for the respondent half-heartedly tried to argue that the interest
claimed violates the Money
Lending and Rates of Interest Act [Chapter 14:14].
He
did not develop that argument at all and could not even cite the rate
of interest that was applied.
I
agree with counsel for the applicant that whatever interest was
agreed by the parties was a compromise. A compromise is a settlement
of disputed obligations. See R
H CHRISTIE,
Business Law In Zimbabwe,
2nd
ed…,. A party sued on a compromise is not entitled to raise
defences to the original cause of action. Moyo
& Anor v Intermarket Discount House Ltd
2008 (1)
ZLR 268 (S).
In
Hales
v Doverick Investments (Pvt) Ltd
1998 (2) ZLR 235…, MALABA J…, set out what a respondent in an
application for summary judgment must show in order to successfully
contest the application as follows:
“…,
while the defendant need not deal exhaustively with the facts and the
evidence relied on to substantiate them, he must at least disclose
his defence and material facts upon which it is based with sufficient
clarity and completeness to enable the court to decide whether the
affidavit discloses a bona fide defence (Maharaj
v Barclays National Bank Ltd
1976 (1) SA 418 (A) at 426D…,; the statement of material facts
(must) be sufficiently full to persuade the court that what the
defendant has alleged, if it is proved at the trial, will constitute
a defence to the plaintiff's claim…,; if the defence is averred
in a manner which appears in all the circumstances needlessly bald,
vague or sketchy that will constitute material for the court to
consider in relation to the requirement of bona
fides…,;
he
must take the court into his confidence and provide sufficient
information to enable the court to assess his defence. He must not
content himself with vague generalities not substantiated by solid
facts.”
I
have already stated that the respondent's opposing affidavit is
couched in vague and sketchy terms. It is needlessly bald and does
not proffer any defence against the acknowledgment of indebtedness
relied upon by the applicant. In fact, the respondent contented
itself with arguing extraneously about the existence of a partnership
it did not substantiate while ignoring the documents relied upon by
the applicant.
I
therefore come to the inescapable conclusion that the applicant's
claim is unassailable and that appearance has indeed been entered for
purposes of delay. This is a case in which the respondent should have
capitulated from the very beginning especially as it has no answer
whatsoever to the documents it authored accepting indebtedness.
Instead, it proceeded to contest the claim almost headlong, in
complete defiance of logic. An award of costs on a punitive scale is
therefore in order.
Accordingly,
it is ordered that:
1.
The application for summary judgment is hereby granted.
2.
The respondent shall pay to the applicant the sum of US$88,000=
(eighty eight thousand United States Dollars).
3.
The respondent shall also pay to the applicant interest on the
aforesaid amount at the prescribed rate, being 5% per annum, from the
7th
of July 2011, being the date of summons, to date of full and final
payment.
4.
The respondent shall pay costs of suit including costs on a legal
practitioner and client scale.
