This
is an application for summary judgment.
The
basis of the application is that sometime in 2010 the respondent was
supplied, upon request, on credit, cake flour by the applicant to its
various branches throughout the country. The cake flour was valued at
US$828,518=05. This amount was due and payable on 7 December 2010.
The
respondent acknowledged its indebtedness by securing US$700,000= via
a surety mortgage bond number 1020/2010 by a company called Medworth
Properties (Pvt) Ltd. A further US$218,240= was acknowledged via an
acknowledgement of debt signed by the respondent on 27 October 2010.
Given
the foregoing, the appearance to defend entered by the respondent is
merely a dilatory tactic since the respondent has no bona
fide
defence.
The
salient aspects of the opposition are as follows:-
1.
The applicant's answering affidavit was filed without leave of the
court. In the event, it must be disregarded.
2.
Paragraph 4 of the applicant's declaration claims an amount of
US$828,851= as capital debt, but, in the prayer, the amount claimed as
capital is US$828,518=05.
It is therefore not clear what the correct amount is.
3.
Still on the amounts thrown about in the applicant's papers there
is attached an alleged acknowledgement of debt for flour worth
US$218,240= signed on 27 October 2010 by one Langton Chivasa. There
is also a surety mortgage bond for US$700,000= by Medworth Properties
(Pvt) Ltd. The two amounts, if added, yield $928,240= and not either
of the capital amounts claimed of $828,851= or $828,518=05. It is not
stated whether the respondent made some payments to reduce the debt
or the applicant abandoned part of the debt. There are no payment
terms on the mortgage bond. It simply refers to a facility granted to
the respondent – supposedly that is where the payment terms are
captured. Without spelling out those terms of payment the court has
not been shown that the terms had been breached to ground
foreclosure.
4.
The mortgagor bound itself as a surety and co-principal debtor yet
that mortgagor was not cited as a party to the proceedings despite it
being an interested party.
5.
The mortgage bond attached to the application is defective in that it
has no identification number or date; it is not signed by the
conveyancer; there is no proof that the owner authorized the
transaction; and does not show the office where the conveyancer
appeared.
Now,
the essence of summary judgment was aptly summed up by LORDS ESHER
and LOPES in Roberts
v Plant
[1895] QB 597…, as follows:
“Where…,
the Plaintiff can show, to the satisfaction of the judge, that he has
a clear case against the defendant, which the defendant cannot
possibly answer, the judge may give the plaintiff leave to enter
judgment forthwith without the expense and delay which would be
involved in letting the case go on trial in the ordinary way. This is
a stringent power to give and therefore the courts have said that its
exercise must be strictly watched in order to see that the plaintiff
has brought himself within the scope of the provisions of the order.”
And,
in the locus
classicus of Maharaj v Barclays National Bank Ltd
1976 (1) SA 418 (AD)…, CORBET JA held as follows:-
“Accordingly,
one of the ways in which a defendant may successfully oppose a claim
for summary judgment is by satisfying the court…, that he has a
bona
fide
defence to the claim. Where the defence is based upon facts, in the
sense that material alleged by the plaintiff in his summons or
combined summons, are disputed or new facts are alleged constituting
a defence, the court does not attempt to decide these issues or to
determine whether or not there is a balance of probabilities in
favour of one party or the other. All that the court enquires into
is:
(a)
Whether the defendant has 'fully' disclosed the nature and
grounds of his defence and the material facts upon which it is
founded; and
(b)
Whether on the facts so disclosed the defendant appears to have, as
to either the whole or part of the claim, a defence which is bona
fide
and good in law.”
In
Jena
v Nechipote
1986 (1) ZLR 29 (S) it was held that all the defendant has to
establish in order to succeed in having an application for summary
judgment dismissed is that there is a mere possibility of his
success; he has a plausible defence; there is a triable issue; or
there is a reasonable possibility that an injustice may be done if
summary judgment is granted.
Now,
applying the law to the facts in
casu
in the chronological sequence of the defendant's defence enumerated
supra
Order 10 Rule 67 of the High Court Rules, 1971 provides;
“No
evidence may be adduced by the plaintiff otherwise than by the
affidavit of which a copy was delivered with the notice…,; provided
that the court may do one or more of the following:-
(a)…,.
(b)…,.
(c)
Permit the plaintiff to supplement his affidavit with a further
affidavit dealing with either or both of the following:-
(i)
Any matter raised by the defendant which the plaintiff could not
reasonably be expected to have dealt with in his first affidavit; or
(ii)
The question whether, at the time the application was instituted, the
plaintiff was or should have been aware of the defence.”
In
light of the foregoing provision it is clear that in an application
for summary judgment the plaintiff is limited only to the founding
affidavit. Any further affidavit can only be filed with leave of the
court and is restricted to the aspects provided for in proviso (c)(i)
or (ii) cited above.
Accordingly,
it follows that the defendant's contention that the applicant's
answering affidavit, which was filed without the leave of the court,
must be disregarded is quite correct. In the event, it is expunged
from the record.
Regarding
paragraph 4 of the applicant's declaration claiming $828,851= as the
capital debt while the prayer has the amount as $828,518=05, the
applicant was supposed to have applied to amend its declaration so
that the correct amount it is claiming is reflected. The summons
claims $828,518=05. The applicant's counsel, in his oral
submissions, averred that it is trite law that in such a scenario the
court is inclined to consider the figure highlighted in the summons.
He, at the same time confessed that he had no authority for that
proposition of law. Neither does the court. It is therefore not clear
what the correct capital amount the applicant is claiming.
This,
in conjunction with other issues to follow below, amounts to a
triable issue and there exists a reasonable possibility that an
injustice may be done if summary judgment is granted.
As
regards aspect number 3 of the respondent's defence supra
the amounts of $218,240= reflected in the acknowledgment of debt and
the $700,000= appearing in the mortgage bond do not assist the
applicant in establishing the exact capital amount claimed whether it
be $828,851=
or $828,518=05. There are no payment terms on the mortgage bond. It
simply refers to a facility granted to the respondent.
The
question that arises is what was that facility? Was it in respect of
cake flour or money lent and advanced?
Without
spelling out the nature of the facility and the terms of payment it
is not possible to establish a nexus between the alleged facility and
the cake flour claimed to found the cause of action, and whether the
payment terms were breached in order to ground foreclosure of the
bond. All these constitute a plausible defence as well as a mere
possibility of the defendant's success.
Regarding
aspect number 4 supra
the mortgage bond clearly states that the mortgagor is a surety and
co-principal debtor.
In
Muchabaiwa
v Grab Enterprises (Pvt) Ltd
1996 (2) ZLR 691 (SC) it was pointed out that a person who subscribes
to an act of suretyship in solidum and as co-principal debtor is, as
far as the creditor is concerned, a surety who has undertaken the
obligations of a co-debtor. His obligations are co-equal in extent
with those of the principal debtor. See also Neon
and Cold Cathode Illumination v Ephron
1978 SA 463…, where TROLLIP JA stated that:
“It
appears that generally the only consequence (albeit an important one)
that flows from a surety also undertaking liability as a co-principal
debtor is that vis-a-vis
the creditor he thereby tacitly renounces the ordinary benefits
available to a surety, such as those of excussion and division, and
he becomes liable jointly and severally with principal debtor.”
Furthermore,
CANEY,
The Law of Suretyship,
4th
ed…, in regard to the significance of the surety also binding
himself as co-principal debtor states “he is liable with him
jointly and severally.”
On
the strength of the above authorities, the mortgagor should have been
joined in this suit it being a co-principal debtor who, in the
process of being such, had renounced the ordinary benefits normally
available to a surety such as those of excussion and division. The
respondent's contention on this score has merit constituting a bona
fide
defence.
The
last point relates to the deficiencies of the mortgage bond itself.
The applicant argued;
“That
the bond is regular and that its ineligibility (sic)
is owed to the poor photocopying.”
Most
probably counsel wanted to say its illegibility is due to poor
photocopying. I find that the contentions raised by the respondent,
in regard to the deficiencies in the bond, cannot be dismissed out of
hand as mere sophistry. They require closer examination going beyond
“poor photocopying.” That bond is annexure “C” to the
applicant's founding affidavit…,.
That
bond has no identification number 1020/2010 that appears in paragraph
5.4 of its founding affidavit. It also has no date or stamp showing
when it was registered and which Registrar of Deeds' office it was
registered. The conveyancer's signature is not appended to it.
A
bond's identification number is governed by practice and common
law.
Section
44(b) of the Deeds Registries Act [Chapter
20:05]
provides that a mortgage bond shall be executed in the presence of
the Registrar by a notary public duly authorized by such owner by
power of attorney.
In
casu,
the bond is not signed by the conveyancer and there is not proof that
the owner of the property duly authorized its execution by way of
power of attorney. No such power of attorney is attached. Since the
bond does not show which office of the Registrar it was registered,
coupled with the foregoing defects, it cannot be said that there is a
valid mortgage bond that can be used as proof of indebtedness.
In
the result, I find that the respondent has managed to fully disclose
the nature and grounds of its defence and the material facts upon
which it is founded thereby establishing a defence which is bona
fide
and good in law. In the event, the application is dismissed with
costs and the respondent is given unconditional leave to defend the
action.
