Special
Plea in Bar/Abatement
MATHONSI
J:
The 2 defendants have taken a “plea in bar/abatement” against a
claim brought against them by the plaintiff seeking an order for
their evection from Stand 11347 Joseph Msika Housing Co-operative
Hatcliffe Harare and costs of suit.
In
his declaration the plaintiff pleaded in relevant part as follows:
“4.
In or about November 2006, plaintiff was allocated Stand No.11347
Joseph Msika Housing Co-operative, Hatcliffe by Joseph Msika
Co-operative Ltd, a member of the Harare North Housing Co-operatives
Union Ltd.
5.
Plaintiff duly paid for the land, road, sewer and water reticulation
services in respect of the allocated stand.
6.
The plaintiff after being authorised by the Co-operative, proceeded
to effect improvements on the property by excavating the foundation,
concrete footing and erected the foundation and a four (4) roomed
house.
7.
Sometime in September 2012, the defendants unlawfully and violently
evicted the plaintiff together with his family and took occupation of
the property together with the improvements.
8.
The stand is registered in the name of the plaintiff in the City of
Harare and Joseph Msika Housing Co-operative Ltd records.
9.
There being no contractual relationship between defendants and either
the plaintiff or Joseph Msika Housing Co-operative Ltd or Harare
North Housing Co-operative Union, the plaintiff therefore seeks an
order divesting the defendants of possession and use of the property
and vesting the same with the plaintiff.
10.
The defendants have, despite demand by the plaintiff, refused and/or
neglected to vacate the property.”
The
defendants, as I have stated, have taken issue with that claim and in
their long winding “special plea in bar/abatement” filed in terms
of Rule 137 of the High Court of Zimbabwe Rules 1971, the defendants
aver that the plaintiff does not have locus
standi in judicio
to bring the action for eviction as the land in question is
unalienated State land and only the State can institute such eviction
action.
As
the plaintiff is not an agent of the State, has no real rights over
the land and the purported sale of the land to him by the
co-operative is a nullity since there is no deed of transfer that was
executed, the plaintiff cannot sue for eviction.
The
second basis for the bar is that the plaintiff has not exhausted
domestic remedies available to him given that there is a dispute
between Joseph Msika Housing Co-operative which sold the land to the
plaintiff and another co-operative, Casa Nova Housing Co-operative
which allocated the same piece of land to the second defendant.
In
light of that, there being a dispute between two registered
co-operatives, it should be resolved in terms of s(s) 115 and 116 of
the Co-operative Societies Act [Cap
24:05].
Thirdly
the defendants averred that the order that the plaintiff seeks is
impossible of performance by reason that Stand 11347 from which
eviction is sought does not exist given that the land in question is
yet to be surveyed in terms of the Land Survey Act [Cap
20:12].
I
must hasten to point out that, after exchanging a few “war stories”
with Mr Mapendere
who appeared for the defendants he quickly abandoned the third leg of
the plea in bar having rightly accepted its lack of merit.
It
is in respect of the first 2 objections that I must decide.
The
rules of court providing for a plea in bar are there for a purpose.
They are certainly not designed to provide sanctuary to litigants
bent on evading law suits. They are for genuine ones who desire to
dispose of those actions which should not detain the court because
they can be disposed of on substance as opposed to merit.
In
fact Rule 137(1)(a) under which the plea in bar has been made
provides:
“A
party may take a plea in bar or in abatement where the matter is one
of substance which does not involve going into the merits of the case
and which,
if allowed will dispose of the case.”
(The underlining is mine)
Legal
practitioners should be reminded the these remedies are not to be
abused for dilatory purposes or for buying time where one has not
fully constructed the defence which the defendant has against the
action. The first question that a legal practitioner should ask
before rushing to prepare such a plea is whether, if allowed, it will
dispose of the case.
It
is irresponsible to just present a plea which has no earthly chance
of bringing finality to the matter or, as is the case in casu,
is long winding, confusing and creates a dispute of facts as cannot
possibly be decided without resort to evidence.
The
mere fact that the averments in such a plea are disputed should be
enough to dissuade the litigant from raising it.
While
still at that, it is time to remind legal practitioners once again,
that in formulating pleadings they should always bear in mind the
purpose of pleading. The essence of any claim is found in the
pleadings whose function is to inform the parties of the points of
issue between them to enable them to know in advance what case they
have to meet, to assist the court define the limits of the action and
to place the issues on record: Matewa
v Zimbabwe Electricity transmission and Distribution Company (ZETDC)
HH304/13; Beck's Theory and Principles of Civil Actions ed 5 at
p32.
By
definition, pleadings must be concise and to the point.
They
must identify the branch of the law under which the claim or defence
to it is made and should not contain evidence. Pleadings which are
long winding and argumentative should not find their way to these
courts. It is a serious dereliction of duty for legal practitioners
to continue, presenting such offensive pleadings when they have the
aid of literature guiding the drafting pleadings.
I
associate myself fully with the sentiments of MAKARAU JP (as she then
was) in Chifamba
v Mutasa & Ors
HH 16/08 (unreported) that:
“Legal
practitioners are urged to read on the law before putting pen to
paper to draft pleadings in any matter so that what they plead is
what the law requires their clients to prove to sustain the remedy
they seek---------. Litigation in the High Court is serious business
and the standard of pleadings in the court must reflect such.”
We
have a situation in which the lengthy plea in bar is not only at
variance with acceptable standards of pleadings, it also raises
controversial, argumentative and indeed disputed allegations which
should not be contained in such a pleading.
On
the issue of locus
standi
the plaintiff has stated in his declaration that he was allocated a
stand by a co-operative in consideration for payment of money. The
stand is registered in his name at the Municipality of Harare.
Inspite of all that, the defendants “unlawfully and violently
evicted” him from the property after he had already effected
improvements, a clear act of spoliation.
In
my view there can be no better way of establishing locus
standi in judicio.
The
defendants then come up with the argument that it is state land and
that it is the state which should litigate, while not even attempting
to deny the alleged act of spoliation.
Are
we to understand the defendants to say that the court should turn a
blind eye to an alleged illegality merely because it was perpetrated
on unalienated state land? Or that self-help is acceptable as long as
the land has not been surveyed?
It
is remarkable that the plaintiff insists that the land was not only
surveyed and clearly marked on a general plan, DG 3843 and as such it
is no longer unalianated but also that there is correspondence from
the Ministry of Local Government, Public Works and Urban Development
confirming the allocation of stands, including that of the plaintiff,
to co-operatives.
I
agree with Mr Kanengoni
for
the plaintiff that, as a member of a co-operative allocated the
stands, the plaintiff would have locus
standi
to
vindicate.
A
party instituting proceedings is only required to show that he has an
interest or special reason which entitles him to bring such
proceedings: Stevenson
v Min of Local Government & National Housing & Ors S 38-02.
In
my view the pleadings establish the plaintiff's real and
substantial interest to commence proceedings against the defendants.
The
issue of the dispute between 2 co-operatives over the same stands
which Mr Mapendere
relies
upon in the second instance has no merit either.
Section
115 of the Co-operatives Societies Act [Cap
24:05]
relates to a dispute between a society and its member, or between
registered societies. A dispute resolution mechanism is provided for
in respect of such dispute.
In
my view that provision together with section 116 of the Act have
nothing to do with the present matter where the plaintiff's claim
is premised on what is alleged to be unlawful conduct of the
defendants entitling the plaintiff to what is in fact spoliatory
relief.
I
conclude therefore that there is no merit in the special plea filed
by the defendants. It simply cannot succeed.
Mr
Kanengoni
for the plaintiff took issue with the set down of the matter arguing
that there was no compliance with Rule 138 dealing with such matters.
Mr
Mapendere
disputed that in correspondence between the parties maintaining that
he was entitled to his day in court.
Having
come to the conclusion that the special plea is without merit, it may
be unnecessary to deal with the issue of set down.
Suffice
to say though that the matter was not set down in accordance with the
rules. In fact the defendants should have pleaded over to the merits
of the matter the moment they failed to satisfy the requirements of
Rule 138.
In
the result the plea in bar is hereby dismissed with costs.
Nyika
Kanengoni & Partners,
plaintiff's legal practitioners
Magodora
& Partners,
defendants legal practitioners
