Findings of Fact re: Witness Testimony iro Approach & the Presumption of Clarity of Events Nearer the Date of the Event

Simbarashe Sagonda..., gave his evidence well and I have no reason to disbelieve him....,.

In my view, Thomas Makwangudze gave his evidence well. I gained the impression that he is honest and reliable.

Pleadings re: Withdrawal of Pleadings, Admissions, Proceedings or Claims

The plaintiff is resident in the United Kingdom.

Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.

The property, whose description and location in Ruwa was known to the second defendant's property negotiator, “Nyasha”, is owned by the first defendant who holds freehold title to the land.

It is common cause that the instructions to sell the property did not emanate from the first defendant but from a fraudster, still at large, who was making out to be the first defendant and not only had with him a forged copy of the Deed of Transfer in respect of the property bearing the first defendant's name, but also a driver's licence and a passport with the names of the first defendant but bearing his picture.

It is further common cause that the two plaintiff's relatives viewed the property in the company of Nyasha, the property negotiator, and were satisfied with its condition in relation to the asking price. They accordingly, but separately, recommended to the plaintiff that he purchases the property.

An Agreement of Sale was duly drawn up and the plaintiff cautioned that he wanted the transaction to be supervised by a lawyer. Debut the third respondent in her capacity as a conveyancer and one who was well known to the second defendant and had done work for the second defendant previously.

On the date that the Agreement of Sale was signed, the fraudster, still making out to be the first defendant, attended at the third defendant's offices and not only did he sign the agreement as seller and first defendant, he also collected the deposit of the purchase price that had been paid in the sum of 8,000 pounds sterling. It is at this meeting that the fraudster exhibited the identity documents that he used to commit the fraud. The documents were inspected by all who were present, including the plaintiff's representative, who did not find anything amiss with the documentation.

A further payment in the sum of 6,000 pounds sterling was made some months thereafter.

Soon after the payment of the balance of the purchase price, transfer fees were called for in anticipation of transferring the property into the plaintiff's name. It was at this stage that the fraud was discovered as the Registrar of Deeds raised issues with the authenticity of the Deed of Transfer tendered with the transfer papers and advised that the matter be reported to the police.

Efforts to trace the purported seller of the property to obtain vacant possession of the property by the plaintiff's agent were in vain.

On 21 April 2004, the plaintiff issued summons claiming against all defendants, an order compelling them to transfer the property in dispute to him. In the alternative, the plaintiff sought an order against all the defendants jointly and severally for the payment of damages to be calculated as the purchase price of a similar stand in Ruwa at the time of payment less the Zimbabwe Dollar equivalent of 14,000 pounds sterling, $2,7 million, and interest a temporae morae on the two amounts at the prescribed rates.

The action was defended by all three defendants.

The first defendant denied that he ever put up his property for sale or connived with the fraudster to defraud the plaintiff. The second defendant denied conniving with the fraudster or misrepresenting any facts to the plaintiff. The third defendant also denied conniving with the fraudster or misrepresenting any facts to the plaintiff.

At the pre-trial conference of the matter, four issues were identified for trial. These were;

(i) Whether or not there was misrepresentation on the part of the defendants that led the plaintiff to lose his money;

(ii) The quantum of damages;

(iii) From whom such damages were recoverable; and

(iv) Who should bear costs of suit.

At the trial of the matter, the plaintiff called Simbarashe Sagonda and Thomas Makwangudze as witnesses. The testimonies of the two witnesses were to narrate what is essentially common cause in this trial.

It was Simbarashe Sagonda's testimony, that, when he went to view the property in the company of the property negotiator from the second defendant, Nyasha, they were shown around by a lady of middle age. Also present were a gardener who opened the gate for them, a maid who was busying herself in the kitchen, and some other young man. From the visit, he got the impression that Nyasha had been to the property before and knew all the faults and uncompleted details in the structure.

The witness gave his evidence well and I have no reason to disbelieve him.

As indicated above, his testimony was a narration of facts that are not in dispute as between the parties.

Thomas Makwangudze also testified as to how he went to view the property in the company of Nyasha and one Lovemore Hombarume who was held out to be the nephew of the seller of the property. He also testified as to how an Agreement of Sale was then drafted and that at the time of signing the agreement and paying the deposit, he met the fraudster, who produced a driver's licence and passport all bearing the names of the first defendant. He inspected the documents together with the third defendant, Nyasha, and a friend he had brought along to witness the transaction.

All four of them did not notice anything irregular with the identity documents and were duped into believing that they were dealing with the first defendant, the owner of the property.

He further testified as to how he paid the balance of the purchase price and transfer fees for the property.

Again, in my view, the witness gave his evidence well. I gained the impression that he is honest and reliable.

He found it difficult, on his observations, to categorically hold that the defendants were conniving with the fraudster. He only assumed there may have been connivance between the first defendant and the fraudster but had no basis for making this assumption save the fact that he and Nyasha freely viewed the first defendant's property in the presence of his maid and gardener.

After leading these two witnesses, the plaintiff closed its case.

At the close of the evidence, the plaintiff withdrew his claim against the first defendant, tendering costs. It is therefore unnecessary that I deal with the evidence led by the first defendant in his defence.

Costs re: Wasted Costs

The plaintiff is resident in the United Kingdom.

Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.

The property, whose description and location in Ruwa was known to the second defendant's property negotiator, “Nyasha”, is owned by the first defendant who holds freehold title to the land.

It is common cause that the instructions to sell the property did not emanate from the first defendant but from a fraudster, still at large, who was making out to be the first defendant and not only had with him a forged copy of the Deed of Transfer in respect of the property bearing the first defendant's name, but also a driver's licence and a passport with the names of the first defendant but bearing his picture.

It is further common cause that the two plaintiff's relatives viewed the property in the company of Nyasha, the property negotiator, and were satisfied with its condition in relation to the asking price. They accordingly, but separately, recommended to the plaintiff that he purchases the property.

An Agreement of Sale was duly drawn up and the plaintiff cautioned that he wanted the transaction to be supervised by a lawyer. Debut the third respondent in her capacity as a conveyancer and one who was well known to the second defendant and had done work for the second defendant previously.

On the date that the Agreement of Sale was signed, the fraudster, still making out to be the first defendant, attended at the third defendant's offices and not only did he sign the agreement as seller and first defendant, he also collected the deposit of the purchase price that had been paid in the sum of 8,000 pounds sterling. It is at this meeting that the fraudster exhibited the identity documents that he used to commit the fraud. The documents were inspected by all who were present, including the plaintiff's representative, who did not find anything amiss with the documentation.

A further payment in the sum of 6,000 pounds sterling was made some months thereafter.

Soon after the payment of the balance of the purchase price, transfer fees were called for in anticipation of transferring the property into the plaintiff's name. It was at this stage that the fraud was discovered as the Registrar of Deeds raised issues with the authenticity of the Deed of Transfer tendered with the transfer papers and advised that the matter be reported to the police.

Efforts to trace the purported seller of the property to obtain vacant possession of the property by the plaintiff's agent were in vain.

On 21 April 2004, the plaintiff issued summons claiming against all defendants, an order compelling them to transfer the property in dispute to him. In the alternative, the plaintiff sought an order against all the defendants jointly and severally for the payment of damages to be calculated as the purchase price of a similar stand in Ruwa at the time of payment less the Zimbabwe Dollar equivalent of 14,000 pounds sterling, $2,7 million, and interest a temporae morae on the two amounts at the prescribed rates.

The action was defended by all three defendants.

The first defendant denied that he ever put up his property for sale or connived with the fraudster to defraud the plaintiff. The second defendant denied conniving with the fraudster or misrepresenting any facts to the plaintiff. The third defendant also denied conniving with the fraudster or misrepresenting any facts to the plaintiff.

At the pre-trial conference of the matter, four issues were identified for trial. These were;

(i) Whether or not there was misrepresentation on the part of the defendants that led the plaintiff to lose his money;

(ii) The quantum of damages;

(iii) From whom such damages were recoverable; and

(iv) Who should bear costs of suit.

At the trial of the matter, the plaintiff called Simbarashe Sagonda and Thomas Makwangudze as witnesses. The testimonies of the two witnesses were to narrate what is essentially common cause in this trial.

It was Simbarashe Sagonda's testimony, that, when he went to view the property in the company of the property negotiator from the second defendant, Nyasha, they were shown around by a lady of middle age. Also present were a gardener who opened the gate for them, a maid who was busying herself in the kitchen, and some other young man. From the visit, he got the impression that Nyasha had been to the property before and knew all the faults and uncompleted details in the structure.

The witness gave his evidence well and I have no reason to disbelieve him.

As indicated above, his testimony was a narration of facts that are not in dispute as between the parties.

Thomas Makwangudze also testified as to how he went to view the property in the company of Nyasha and one Lovemore Hombarume who was held out to be the nephew of the seller of the property. He also testified as to how an Agreement of Sale was then drafted and that at the time of signing the agreement and paying the deposit, he met the fraudster, who produced a driver's licence and passport all bearing the names of the first defendant. He inspected the documents together with the third defendant, Nyasha, and a friend he had brought along to witness the transaction.

All four of them did not notice anything irregular with the identity documents and were duped into believing that they were dealing with the first defendant, the owner of the property.

He further testified as to how he paid the balance of the purchase price and transfer fees for the property.

Again, in my view, the witness gave his evidence well. I gained the impression that he is honest and reliable.

He found it difficult, on his observations, to categorically hold that the defendants were conniving with the fraudster. He only assumed there may have been connivance between the first defendant and the fraudster but had no basis for making this assumption save the fact that he and Nyasha freely viewed the first defendant's property in the presence of his maid and gardener.

After leading these two witnesses, the plaintiff closed its case.

At the close of the evidence, the plaintiff withdrew his claim against the first defendant, tendering costs.

Pleadings re: Approach to Pleadings, Pre-Trial Proceedings, Disparities with Oral Evidence and Unchallenged Statements

The plaintiff is resident in the United Kingdom.

Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.

The property, whose description and location in Ruwa was known to the second defendant's property negotiator, “Nyasha”, is owned by the first defendant who holds freehold title to the land.

It is common cause that the instructions to sell the property did not emanate from the first defendant but from a fraudster, still at large, who was making out to be the first defendant and not only had with him a forged copy of the Deed of Transfer in respect of the property bearing the first defendant's name, but also a driver's licence and a passport with the names of the first defendant but bearing his picture.

It is further common cause that the two plaintiff's relatives viewed the property in the company of Nyasha, the property negotiator, and were satisfied with its condition in relation to the asking price. They accordingly, but separately, recommended to the plaintiff that he purchases the property.

An Agreement of Sale was duly drawn up and the plaintiff cautioned that he wanted the transaction to be supervised by a lawyer. Debut the third respondent in her capacity as a conveyancer and one who was well known to the second defendant and had done work for the second defendant previously.

On the date that the Agreement of Sale was signed, the fraudster, still making out to be the first defendant, attended at the third defendant's offices and not only did he sign the agreement as seller and first defendant, he also collected the deposit of the purchase price that had been paid in the sum of 8,000 pounds sterling. It is at this meeting that the fraudster exhibited the identity documents that he used to commit the fraud. The documents were inspected by all who were present, including the plaintiff's representative, who did not find anything amiss with the documentation.

A further payment in the sum of 6,000 pounds sterling was made some months thereafter.

Soon after the payment of the balance of the purchase price, transfer fees were called for in anticipation of transferring the property into the plaintiff's name. It was at this stage that the fraud was discovered as the Registrar of Deeds raised issues with the authenticity of the Deed of Transfer tendered with the transfer papers and advised that the matter be reported to the police.

Efforts to trace the purported seller of the property to obtain vacant possession of the property by the plaintiff's agent were in vain.

On 21 April 2004, the plaintiff issued summons claiming against all defendants, an order compelling them to transfer the property in dispute to him. In the alternative, the plaintiff sought an order against all the defendants jointly and severally for the payment of damages to be calculated as the purchase price of a similar stand in Ruwa at the time of payment less the Zimbabwe Dollar equivalent of 14,000 pounds sterling, $2,7 million, and interest a temporae morae on the two amounts at the prescribed rates.

The action was defended by all three defendants.

The first defendant denied that he ever put up his property for sale or connived with the fraudster to defraud the plaintiff. The second defendant denied conniving with the fraudster or misrepresenting any facts to the plaintiff. The third defendant also denied conniving with the fraudster or misrepresenting any facts to the plaintiff.

At the pre-trial conference of the matter, four issues were identified for trial. These were;

(i) Whether or not there was misrepresentation on the part of the defendants that led the plaintiff to lose his money;

(ii) The quantum of damages;

(iii) From whom such damages were recoverable; and

(iv) Who should bear costs of suit.

At the trial of the matter, the plaintiff called Simbarashe Sagonda and Thomas Makwangudze as witnesses. The testimonies of the two witnesses were to narrate what is essentially common cause in this trial.

It was Simbarashe Sagonda's testimony, that, when he went to view the property in the company of the property negotiator from the second defendant, Nyasha, they were shown around by a lady of middle age. Also present were a gardener who opened the gate for them, a maid who was busying herself in the kitchen, and some other young man. From the visit, he got the impression that Nyasha had been to the property before and knew all the faults and uncompleted details in the structure.

The witness gave his evidence well and I have no reason to disbelieve him.

As indicated above, his testimony was a narration of facts that are not in dispute as between the parties.

Thomas Makwangudze also testified as to how he went to view the property in the company of Nyasha and one Lovemore Hombarume who was held out to be the nephew of the seller of the property. He also testified as to how an Agreement of Sale was then drafted and that at the time of signing the agreement and paying the deposit, he met the fraudster, who produced a driver's licence and passport all bearing the names of the first defendant. He inspected the documents together with the third defendant, Nyasha, and a friend he had brought along to witness the transaction.

All four of them did not notice anything irregular with the identity documents and were duped into believing that they were dealing with the first defendant, the owner of the property.

He further testified as to how he paid the balance of the purchase price and transfer fees for the property.

Again, in my view, the witness gave his evidence well. I gained the impression that he is honest and reliable.

He found it difficult, on his observations, to categorically hold that the defendants were conniving with the fraudster. He only assumed there may have been connivance between the first defendant and the fraudster but had no basis for making this assumption save the fact that he and Nyasha freely viewed the first defendant's property in the presence of his maid and gardener.

After leading these two witnesses, the plaintiff closed its case.

At the close of the evidence, the plaintiff withdrew his claim against the first defendant, tendering costs. It is therefore unnecessary that I deal with the evidence led by the first defendant in his defence.

The second and third defendants applied for absolution from the instance arguing that the plaintiff had not established a prima facie case that the defendants had misrepresented to him any fact.

I granted the application and indicated that my reasons would follow. I now set them out.

Before I proceed to deal with the application for absolution from the instance, there are two issues that I wish to remark on. These relate to the standard of pleadings exhibited in this matter and the need for legal practitioners at pre-trial conferences to assess the cogency of the evidence they intend to adduce at the trial of the matter.

The purpose of pleadings is not only to inform the other party in concise terms of the precise nature of the claim they have to meet, but, pleadings also serve to identify the branch of the law under which the claim has been brought. Different branches of the law require different matters to be specifically pleaded for a claim to be sustainable under that action.

Thus, for example, in a divorce action, the allegation of irretrievable breakdown is imperative while in a delictual claim for bodily injury, fault has to be averred against the defendant.

This may appear trite but a number of matters coming before the courts seem to indicate that legal practitioners have abandoned the need to plead a cause of action by making the necessary averments to sustain such an action: see S Pilime v B Chisvo HH10-07.

In casu, the plaintiff's legal practitioner appears to have simply rehashed the instructions he had received from his client in the declaration without making an attempt to precisely and concisely lay out the cause of action and the averments necessary to sustain such. I gain this impression from the wording of the concluding paragraph of the declaration which is framed as follows:

“All the defendants were either conniving together or misrepresented facts to the Plaintiff in order to deprive the plaintiff of the said Stand and money.”

The defendants' legal practitioners did not fare any better in the matter.

Instead of seeking clarification of the claim and its basis by either a request for further particulars or an appropriate exception, the defendants were advised to file pleas to the merits which pleas read no better than the declaration as they seek to deny the statements made in the declaration (Mr Nhemwa was not representing the second defendant at the time the pleadings were exchanged).

In my view, the exchange of pleadings between the parties is what may pass as conversation at a social gathering between disagreeing parties but bears not the slightest resemblance to pleadings in a court of law.

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.

The duty of a legal practitioner to precisely and concisely draw up pleading is closely related to the duty to establish and assess the evidence necessary to sustain each important averment made in the pleadings.

This should be done before or at the pretrial conference stage when the summaries of evidence are drawn up. Gaps in the evidence should be identified at this stage and brought to the attention of the party who may thus avoid the loss occasioned by a dismissal or absolution from the instance at the close of the plaintiff's case at trial.

All too often, legal practitioners are heard in a pre-trial conference to whisper to their clients asking how many witnesses they will call at the trial of the matter. Preparedness is the hallmark of a good legal practitioner. It is no use for a legal practitioner to concede, at trial, that his client does not have sufficient evidence when pleading that the matter should not be dismissed but that absolution from the instance be granted.

It is my view, that, had the plaintiff's legal practitioner in this matter assessed the cogency of the evidence that he had, he may have avoided a trial in this matter and legal costs for his client as none of the plaintiff's witnesses testified as to a misrepresentation made to them, and, the second witness in particular, denied that there was any connivance by the defendants to deprive the plaintiff of his money. His testimony was to the effect, that, because the second and third defendants were professionals, they should have guarded against the loss. This, in my view, suggests a claim based on negligence rather than on misrepresentation or fraud.

Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.

Cause of Action and Draft Orders re: Approach, Timing, Framing and Legal Basis for Invoking Jurisdiction of the Court

The plaintiff is resident in the United Kingdom.

Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.

The property, whose description and location in Ruwa was known to the second defendant's property negotiator, “Nyasha”, is owned by the first defendant who holds freehold title to the land.

It is common cause that the instructions to sell the property did not emanate from the first defendant but from a fraudster, still at large, who was making out to be the first defendant and not only had with him a forged copy of the Deed of Transfer in respect of the property bearing the first defendant's name, but also a driver's licence and a passport with the names of the first defendant but bearing his picture.

It is further common cause that the two plaintiff's relatives viewed the property in the company of Nyasha, the property negotiator, and were satisfied with its condition in relation to the asking price. They accordingly, but separately, recommended to the plaintiff that he purchases the property.

An Agreement of Sale was duly drawn up and the plaintiff cautioned that he wanted the transaction to be supervised by a lawyer. Debut the third respondent in her capacity as a conveyancer and one who was well known to the second defendant and had done work for the second defendant previously.

On the date that the Agreement of Sale was signed, the fraudster, still making out to be the first defendant, attended at the third defendant's offices and not only did he sign the agreement as seller and first defendant, he also collected the deposit of the purchase price that had been paid in the sum of 8,000 pounds sterling. It is at this meeting that the fraudster exhibited the identity documents that he used to commit the fraud. The documents were inspected by all who were present, including the plaintiff's representative, who did not find anything amiss with the documentation.

A further payment in the sum of 6,000 pounds sterling was made some months thereafter.

Soon after the payment of the balance of the purchase price, transfer fees were called for in anticipation of transferring the property into the plaintiff's name. It was at this stage that the fraud was discovered as the Registrar of Deeds raised issues with the authenticity of the Deed of Transfer tendered with the transfer papers and advised that the matter be reported to the police.

Efforts to trace the purported seller of the property to obtain vacant possession of the property by the plaintiff's agent were in vain.

On 21 April 2004, the plaintiff issued summons claiming against all defendants, an order compelling them to transfer the property in dispute to him. In the alternative, the plaintiff sought an order against all the defendants jointly and severally for the payment of damages to be calculated as the purchase price of a similar stand in Ruwa at the time of payment less the Zimbabwe Dollar equivalent of 14,000 pounds sterling, $2,7 million, and interest a temporae morae on the two amounts at the prescribed rates.

The action was defended by all three defendants.

The first defendant denied that he ever put up his property for sale or connived with the fraudster to defraud the plaintiff. The second defendant denied conniving with the fraudster or misrepresenting any facts to the plaintiff. The third defendant also denied conniving with the fraudster or misrepresenting any facts to the plaintiff.

At the pre-trial conference of the matter, four issues were identified for trial. These were;

(i) Whether or not there was misrepresentation on the part of the defendants that led the plaintiff to lose his money;

(ii) The quantum of damages;

(iii) From whom such damages were recoverable; and

(iv) Who should bear costs of suit.

At the trial of the matter, the plaintiff called Simbarashe Sagonda and Thomas Makwangudze as witnesses. The testimonies of the two witnesses were to narrate what is essentially common cause in this trial.

It was Simbarashe Sagonda's testimony, that, when he went to view the property in the company of the property negotiator from the second defendant, Nyasha, they were shown around by a lady of middle age. Also present were a gardener who opened the gate for them, a maid who was busying herself in the kitchen, and some other young man. From the visit, he got the impression that Nyasha had been to the property before and knew all the faults and uncompleted details in the structure.

The witness gave his evidence well and I have no reason to disbelieve him.

As indicated above, his testimony was a narration of facts that are not in dispute as between the parties.

Thomas Makwangudze also testified as to how he went to view the property in the company of Nyasha and one Lovemore Hombarume who was held out to be the nephew of the seller of the property. He also testified as to how an Agreement of Sale was then drafted and that at the time of signing the agreement and paying the deposit, he met the fraudster, who produced a driver's licence and passport all bearing the names of the first defendant. He inspected the documents together with the third defendant, Nyasha, and a friend he had brought along to witness the transaction.

All four of them did not notice anything irregular with the identity documents and were duped into believing that they were dealing with the first defendant, the owner of the property.

He further testified as to how he paid the balance of the purchase price and transfer fees for the property.

Again, in my view, the witness gave his evidence well. I gained the impression that he is honest and reliable.

He found it difficult, on his observations, to categorically hold that the defendants were conniving with the fraudster. He only assumed there may have been connivance between the first defendant and the fraudster but had no basis for making this assumption save the fact that he and Nyasha freely viewed the first defendant's property in the presence of his maid and gardener.

After leading these two witnesses, the plaintiff closed its case.

At the close of the evidence, the plaintiff withdrew his claim against the first defendant, tendering costs. It is therefore unnecessary that I deal with the evidence led by the first defendant in his defence.

The second and third defendants applied for absolution from the instance arguing that the plaintiff had not established a prima facie case that the defendants had misrepresented to him any fact.

I granted the application and indicated that my reasons would follow. I now set them out.

Before I proceed to deal with the application for absolution from the instance, there are two issues that I wish to remark on. These relate to the standard of pleadings exhibited in this matter and the need for legal practitioners at pre-trial conferences to assess the cogency of the evidence they intend to adduce at the trial of the matter.

The purpose of pleadings is not only to inform the other party in concise terms of the precise nature of the claim they have to meet, but, pleadings also serve to identify the branch of the law under which the claim has been brought. Different branches of the law require different matters to be specifically pleaded for a claim to be sustainable under that action.

Thus, for example, in a divorce action, the allegation of irretrievable breakdown is imperative while in a delictual claim for bodily injury, fault has to be averred against the defendant.

This may appear trite but a number of matters coming before the courts seem to indicate that legal practitioners have abandoned the need to plead a cause of action by making the necessary averments to sustain such an action: see S Pilime v B Chisvo HH10-07.

In casu, the plaintiff's legal practitioner appears to have simply rehashed the instructions he had received from his client in the declaration without making an attempt to precisely and concisely lay out the cause of action and the averments necessary to sustain such. I gain this impression from the wording of the concluding paragraph of the declaration which is framed as follows:

“All the defendants were either conniving together or misrepresented facts to the Plaintiff in order to deprive the plaintiff of the said Stand and money.”

The defendants' legal practitioners did not fare any better in the matter.

Instead of seeking clarification of the claim and its basis by either a request for further particulars or an appropriate exception, the defendants were advised to file pleas to the merits which pleas read no better than the declaration as they seek to deny the statements made in the declaration (Mr Nhemwa was not representing the second defendant at the time the pleadings were exchanged).

In my view, the exchange of pleadings between the parties is what may pass as conversation at a social gathering between disagreeing parties but bears not the slightest resemblance to pleadings in a court of law.

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.

The duty of a legal practitioner to precisely and concisely draw up pleading is closely related to the duty to establish and assess the evidence necessary to sustain each important averment made in the pleadings.

This should be done before or at the pretrial conference stage when the summaries of evidence are drawn up. Gaps in the evidence should be identified at this stage and brought to the attention of the party who may thus avoid the loss occasioned by a dismissal or absolution from the instance at the close of the plaintiff's case at trial.

All too often, legal practitioners are heard in a pre-trial conference to whisper to their clients asking how many witnesses they will call at the trial of the matter. Preparedness is the hallmark of a good legal practitioner. It is no use for a legal practitioner to concede, at trial, that his client does not have sufficient evidence when pleading that the matter should not be dismissed but that absolution from the instance be granted.

It is my view, that, had the plaintiff's legal practitioner in this matter assessed the cogency of the evidence that he had, he may have avoided a trial in this matter and legal costs for his client as none of the plaintiff's witnesses testified as to a misrepresentation made to them, and, the second witness in particular, denied that there was any connivance by the defendants to deprive the plaintiff of his money. His testimony was to the effect, that, because the second and third defendants were professionals, they should have guarded against the loss. This, in my view, suggests a claim based on negligence rather than on misrepresentation or fraud.

Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.

In view of the evidence adduced on behalf of the plaintiff, it was clear, at the close of the plaintiff's case, that there was no need to call upon the defendants to testify.

Even if I were to be overly generous and hold that the plaintiff had pleaded misrepresentation as a cause of action against the defendants, the evidence adduced by the plaintiff revealed that it was the fraudster who misrepresented to both the plaintiff and to the defendants that he was the registered owner of the property that he was selling.

It is this fraud that induced the sale between the parties.

The fraudster went to the extent of producing cleverly forged documents to support his fraud. The defendants did not assist him in this fraud and were also the victims of the fraud.

In any event, it was not specifically pleaded in the papers whether the alleged fraud by the defendants was innocent, negligent, or fraudulent.

Having alleged that he was induced into the contract by misrepresentation, the plaintiff proceeded to pray for transfer of the property into his name.

I am not clear how the remedy of specific performance was pleaded after the alleged misrepresentation.

I may mention, in passing, that, the Rules require that particulars of any misrepresentation be stated in the pleading: see Rule 103 of the High Court Rules, 1972.

The Rule is often overlooked in drafting summons and declarations.

It is on the basis of the above that I granted absolution from the instance at the close of the plaintiff's case.

Professional Ethics, Legal Duty to the Court and Clients, Dominus Litis and Correspondence with the Court

The plaintiff is resident in the United Kingdom.

Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.

The property, whose description and location in Ruwa was known to the second defendant's property negotiator, “Nyasha”, is owned by the first defendant who holds freehold title to the land.

It is common cause that the instructions to sell the property did not emanate from the first defendant but from a fraudster, still at large, who was making out to be the first defendant and not only had with him a forged copy of the Deed of Transfer in respect of the property bearing the first defendant's name, but also a driver's licence and a passport with the names of the first defendant but bearing his picture.

It is further common cause that the two plaintiff's relatives viewed the property in the company of Nyasha, the property negotiator, and were satisfied with its condition in relation to the asking price. They accordingly, but separately, recommended to the plaintiff that he purchases the property.

An Agreement of Sale was duly drawn up and the plaintiff cautioned that he wanted the transaction to be supervised by a lawyer. Debut the third respondent in her capacity as a conveyancer and one who was well known to the second defendant and had done work for the second defendant previously.

On the date that the Agreement of Sale was signed, the fraudster, still making out to be the first defendant, attended at the third defendant's offices and not only did he sign the agreement as seller and first defendant, he also collected the deposit of the purchase price that had been paid in the sum of 8,000 pounds sterling. It is at this meeting that the fraudster exhibited the identity documents that he used to commit the fraud. The documents were inspected by all who were present, including the plaintiff's representative, who did not find anything amiss with the documentation.

A further payment in the sum of 6,000 pounds sterling was made some months thereafter.

Soon after the payment of the balance of the purchase price, transfer fees were called for in anticipation of transferring the property into the plaintiff's name. It was at this stage that the fraud was discovered as the Registrar of Deeds raised issues with the authenticity of the Deed of Transfer tendered with the transfer papers and advised that the matter be reported to the police.

Efforts to trace the purported seller of the property to obtain vacant possession of the property by the plaintiff's agent were in vain.

On 21 April 2004, the plaintiff issued summons claiming against all defendants, an order compelling them to transfer the property in dispute to him. In the alternative, the plaintiff sought an order against all the defendants jointly and severally for the payment of damages to be calculated as the purchase price of a similar stand in Ruwa at the time of payment less the Zimbabwe Dollar equivalent of 14,000 pounds sterling, $2,7 million, and interest a temporae morae on the two amounts at the prescribed rates.

The action was defended by all three defendants.

The first defendant denied that he ever put up his property for sale or connived with the fraudster to defraud the plaintiff. The second defendant denied conniving with the fraudster or misrepresenting any facts to the plaintiff. The third defendant also denied conniving with the fraudster or misrepresenting any facts to the plaintiff.

At the pre-trial conference of the matter, four issues were identified for trial. These were;

(i) Whether or not there was misrepresentation on the part of the defendants that led the plaintiff to lose his money;

(ii) The quantum of damages;

(iii) From whom such damages were recoverable; and

(iv) Who should bear costs of suit.

At the trial of the matter, the plaintiff called Simbarashe Sagonda and Thomas Makwangudze as witnesses. The testimonies of the two witnesses were to narrate what is essentially common cause in this trial.

It was Simbarashe Sagonda's testimony, that, when he went to view the property in the company of the property negotiator from the second defendant, Nyasha, they were shown around by a lady of middle age. Also present were a gardener who opened the gate for them, a maid who was busying herself in the kitchen, and some other young man. From the visit, he got the impression that Nyasha had been to the property before and knew all the faults and uncompleted details in the structure.

The witness gave his evidence well and I have no reason to disbelieve him.

As indicated above, his testimony was a narration of facts that are not in dispute as between the parties.

Thomas Makwangudze also testified as to how he went to view the property in the company of Nyasha and one Lovemore Hombarume who was held out to be the nephew of the seller of the property. He also testified as to how an Agreement of Sale was then drafted and that at the time of signing the agreement and paying the deposit, he met the fraudster, who produced a driver's licence and passport all bearing the names of the first defendant. He inspected the documents together with the third defendant, Nyasha, and a friend he had brought along to witness the transaction.

All four of them did not notice anything irregular with the identity documents and were duped into believing that they were dealing with the first defendant, the owner of the property.

He further testified as to how he paid the balance of the purchase price and transfer fees for the property.

Again, in my view, the witness gave his evidence well. I gained the impression that he is honest and reliable.

He found it difficult, on his observations, to categorically hold that the defendants were conniving with the fraudster. He only assumed there may have been connivance between the first defendant and the fraudster but had no basis for making this assumption save the fact that he and Nyasha freely viewed the first defendant's property in the presence of his maid and gardener.

After leading these two witnesses, the plaintiff closed its case.

At the close of the evidence, the plaintiff withdrew his claim against the first defendant, tendering costs. It is therefore unnecessary that I deal with the evidence led by the first defendant in his defence.

The second and third defendants applied for absolution from the instance arguing that the plaintiff had not established a prima facie case that the defendants had misrepresented to him any fact.

I granted the application and indicated that my reasons would follow. I now set them out.

Before I proceed to deal with the application for absolution from the instance, there are two issues that I wish to remark on. These relate to the standard of pleadings exhibited in this matter and the need for legal practitioners at pre-trial conferences to assess the cogency of the evidence they intend to adduce at the trial of the matter.

The purpose of pleadings is not only to inform the other party in concise terms of the precise nature of the claim they have to meet, but, pleadings also serve to identify the branch of the law under which the claim has been brought. Different branches of the law require different matters to be specifically pleaded for a claim to be sustainable under that action.

Thus, for example, in a divorce action, the allegation of irretrievable breakdown is imperative while in a delictual claim for bodily injury, fault has to be averred against the defendant.

This may appear trite but a number of matters coming before the courts seem to indicate that legal practitioners have abandoned the need to plead a cause of action by making the necessary averments to sustain such an action: see S Pilime v B Chisvo HH10-07.

In casu, the plaintiff's legal practitioner appears to have simply rehashed the instructions he had received from his client in the declaration without making an attempt to precisely and concisely lay out the cause of action and the averments necessary to sustain such. I gain this impression from the wording of the concluding paragraph of the declaration which is framed as follows:

“All the defendants were either conniving together or misrepresented facts to the Plaintiff in order to deprive the plaintiff of the said Stand and money.”

The defendants' legal practitioners did not fare any better in the matter.

Instead of seeking clarification of the claim and its basis by either a request for further particulars or an appropriate exception, the defendants were advised to file pleas to the merits which pleas read no better than the declaration as they seek to deny the statements made in the declaration (Mr Nhemwa was not representing the second defendant at the time the pleadings were exchanged).

In my view, the exchange of pleadings between the parties is what may pass as conversation at a social gathering between disagreeing parties but bears not the slightest resemblance to pleadings in a court of law.

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.

The duty of a legal practitioner to precisely and concisely draw up pleading is closely related to the duty to establish and assess the evidence necessary to sustain each important averment made in the pleadings.

This should be done before or at the pretrial conference stage when the summaries of evidence are drawn up. Gaps in the evidence should be identified at this stage and brought to the attention of the party who may thus avoid the loss occasioned by a dismissal or absolution from the instance at the close of the plaintiff's case at trial.

All too often, legal practitioners are heard in a pre-trial conference to whisper to their clients asking how many witnesses they will call at the trial of the matter. Preparedness is the hallmark of a good legal practitioner. It is no use for a legal practitioner to concede, at trial, that his client does not have sufficient evidence when pleading that the matter should not be dismissed but that absolution from the instance be granted.

It is my view, that, had the plaintiff's legal practitioner in this matter assessed the cogency of the evidence that he had, he may have avoided a trial in this matter and legal costs for his client as none of the plaintiff's witnesses testified as to a misrepresentation made to them, and, the second witness in particular, denied that there was any connivance by the defendants to deprive the plaintiff of his money. His testimony was to the effect, that, because the second and third defendants were professionals, they should have guarded against the loss. This, in my view, suggests a claim based on negligence rather than on misrepresentation or fraud.

Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.

In view of the evidence adduced on behalf of the plaintiff, it was clear, at the close of the plaintiff's case, that there was no need to call upon the defendants to testify.

Even if I were to be overly generous and hold that the plaintiff had pleaded misrepresentation as a cause of action against the defendants, the evidence adduced by the plaintiff revealed that it was the fraudster who misrepresented to both the plaintiff and to the defendants that he was the registered owner of the property that he was selling.

It is this fraud that induced the sale between the parties.

The fraudster went to the extent of producing cleverly forged documents to support his fraud. The defendants did not assist him in this fraud and were also the victims of the fraud.

In any event, it was not specifically pleaded in the papers whether the alleged fraud by the defendants was innocent, negligent, or fraudulent.

Having alleged that he was induced into the contract by misrepresentation, the plaintiff proceeded to pray for transfer of the property into his name.

I am not clear how the remedy of specific performance was pleaded after the alleged misrepresentation.

I may mention, in passing, that, the Rules require that particulars of any misrepresentation be stated in the pleading: see Rule 103 of the High Court Rules, 1972.

The Rule is often overlooked in drafting summons and declarations.

It is on the basis of the above that I granted absolution from the instance at the close of the plaintiff's case.

Agency Law re: Acting on Behalf of Another iro Agency Relationship, Independent Contractor & Quasi-Mutual Assent Doctrine

The plaintiff is resident in the United Kingdom.

Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.

The property, whose description and location in Ruwa was known to the second defendant's property negotiator, “Nyasha”, is owned by the first defendant who holds freehold title to the land.

It is common cause that the instructions to sell the property did not emanate from the first defendant but from a fraudster, still at large, who was making out to be the first defendant and not only had with him a forged copy of the Deed of Transfer in respect of the property bearing the first defendant's name, but also a driver's licence and a passport with the names of the first defendant but bearing his picture.

It is further common cause that the two plaintiff's relatives viewed the property in the company of Nyasha, the property negotiator, and were satisfied with its condition in relation to the asking price. They accordingly, but separately, recommended to the plaintiff that he purchases the property.

An Agreement of Sale was duly drawn up and the plaintiff cautioned that he wanted the transaction to be supervised by a lawyer. Debut the third respondent in her capacity as a conveyancer and one who was well known to the second defendant and had done work for the second defendant previously.

On the date that the Agreement of Sale was signed, the fraudster, still making out to be the first defendant, attended at the third defendant's offices and not only did he sign the agreement as seller and first defendant, he also collected the deposit of the purchase price that had been paid in the sum of 8,000 pounds sterling. It is at this meeting that the fraudster exhibited the identity documents that he used to commit the fraud. The documents were inspected by all who were present, including the plaintiff's representative, who did not find anything amiss with the documentation.

A further payment in the sum of 6,000 pounds sterling was made some months thereafter.

Soon after the payment of the balance of the purchase price, transfer fees were called for in anticipation of transferring the property into the plaintiff's name. It was at this stage that the fraud was discovered as the Registrar of Deeds raised issues with the authenticity of the Deed of Transfer tendered with the transfer papers and advised that the matter be reported to the police.

Efforts to trace the purported seller of the property to obtain vacant possession of the property by the plaintiff's agent were in vain.

On 21 April 2004, the plaintiff issued summons claiming against all defendants, an order compelling them to transfer the property in dispute to him. In the alternative, the plaintiff sought an order against all the defendants jointly and severally for the payment of damages to be calculated as the purchase price of a similar stand in Ruwa at the time of payment less the Zimbabwe Dollar equivalent of 14,000 pounds sterling, $2,7 million, and interest a temporae morae on the two amounts at the prescribed rates.

The action was defended by all three defendants.

The first defendant denied that he ever put up his property for sale or connived with the fraudster to defraud the plaintiff. The second defendant denied conniving with the fraudster or misrepresenting any facts to the plaintiff. The third defendant also denied conniving with the fraudster or misrepresenting any facts to the plaintiff.

At the pre-trial conference of the matter, four issues were identified for trial. These were;

(i) Whether or not there was misrepresentation on the part of the defendants that led the plaintiff to lose his money;

(ii) The quantum of damages;

(iii) From whom such damages were recoverable; and

(iv) Who should bear costs of suit.

At the trial of the matter, the plaintiff called Simbarashe Sagonda and Thomas Makwangudze as witnesses. The testimonies of the two witnesses were to narrate what is essentially common cause in this trial.

It was Simbarashe Sagonda's testimony, that, when he went to view the property in the company of the property negotiator from the second defendant, Nyasha, they were shown around by a lady of middle age. Also present were a gardener who opened the gate for them, a maid who was busying herself in the kitchen, and some other young man. From the visit, he got the impression that Nyasha had been to the property before and knew all the faults and uncompleted details in the structure.

The witness gave his evidence well and I have no reason to disbelieve him.

As indicated above, his testimony was a narration of facts that are not in dispute as between the parties.

Thomas Makwangudze also testified as to how he went to view the property in the company of Nyasha and one Lovemore Hombarume who was held out to be the nephew of the seller of the property. He also testified as to how an Agreement of Sale was then drafted and that at the time of signing the agreement and paying the deposit, he met the fraudster, who produced a driver's licence and passport all bearing the names of the first defendant. He inspected the documents together with the third defendant, Nyasha, and a friend he had brought along to witness the transaction.

All four of them did not notice anything irregular with the identity documents and were duped into believing that they were dealing with the first defendant, the owner of the property.

He further testified as to how he paid the balance of the purchase price and transfer fees for the property.

Again, in my view, the witness gave his evidence well. I gained the impression that he is honest and reliable.

He found it difficult, on his observations, to categorically hold that the defendants were conniving with the fraudster. He only assumed there may have been connivance between the first defendant and the fraudster but had no basis for making this assumption save the fact that he and Nyasha freely viewed the first defendant's property in the presence of his maid and gardener.

After leading these two witnesses, the plaintiff closed its case.

At the close of the evidence, the plaintiff withdrew his claim against the first defendant, tendering costs. It is therefore unnecessary that I deal with the evidence led by the first defendant in his defence.

The second and third defendants applied for absolution from the instance arguing that the plaintiff had not established a prima facie case that the defendants had misrepresented to him any fact.

I granted the application and indicated that my reasons would follow. I now set them out.

Before I proceed to deal with the application for absolution from the instance, there are two issues that I wish to remark on. These relate to the standard of pleadings exhibited in this matter and the need for legal practitioners at pre-trial conferences to assess the cogency of the evidence they intend to adduce at the trial of the matter.

The purpose of pleadings is not only to inform the other party in concise terms of the precise nature of the claim they have to meet, but, pleadings also serve to identify the branch of the law under which the claim has been brought. Different branches of the law require different matters to be specifically pleaded for a claim to be sustainable under that action.

Thus, for example, in a divorce action, the allegation of irretrievable breakdown is imperative while in a delictual claim for bodily injury, fault has to be averred against the defendant.

This may appear trite but a number of matters coming before the courts seem to indicate that legal practitioners have abandoned the need to plead a cause of action by making the necessary averments to sustain such an action: see S Pilime v B Chisvo HH10-07.

In casu, the plaintiff's legal practitioner appears to have simply rehashed the instructions he had received from his client in the declaration without making an attempt to precisely and concisely lay out the cause of action and the averments necessary to sustain such. I gain this impression from the wording of the concluding paragraph of the declaration which is framed as follows:

“All the defendants were either conniving together or misrepresented facts to the Plaintiff in order to deprive the plaintiff of the said Stand and money.”

The defendants' legal practitioners did not fare any better in the matter.

Instead of seeking clarification of the claim and its basis by either a request for further particulars or an appropriate exception, the defendants were advised to file pleas to the merits which pleas read no better than the declaration as they seek to deny the statements made in the declaration (Mr Nhemwa was not representing the second defendant at the time the pleadings were exchanged).

In my view, the exchange of pleadings between the parties is what may pass as conversation at a social gathering between disagreeing parties but bears not the slightest resemblance to pleadings in a court of law.

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.

The duty of a legal practitioner to precisely and concisely draw up pleading is closely related to the duty to establish and assess the evidence necessary to sustain each important averment made in the pleadings.

This should be done before or at the pretrial conference stage when the summaries of evidence are drawn up. Gaps in the evidence should be identified at this stage and brought to the attention of the party who may thus avoid the loss occasioned by a dismissal or absolution from the instance at the close of the plaintiff's case at trial.

All too often, legal practitioners are heard in a pre-trial conference to whisper to their clients asking how many witnesses they will call at the trial of the matter. Preparedness is the hallmark of a good legal practitioner. It is no use for a legal practitioner to concede, at trial, that his client does not have sufficient evidence when pleading that the matter should not be dismissed but that absolution from the instance be granted.

It is my view, that, had the plaintiff's legal practitioner in this matter assessed the cogency of the evidence that he had, he may have avoided a trial in this matter and legal costs for his client as none of the plaintiff's witnesses testified as to a misrepresentation made to them, and, the second witness in particular, denied that there was any connivance by the defendants to deprive the plaintiff of his money. His testimony was to the effect, that, because the second and third defendants were professionals, they should have guarded against the loss. This, in my view, suggests a claim based on negligence rather than on misrepresentation or fraud.

Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.

In view of the evidence adduced on behalf of the plaintiff, it was clear, at the close of the plaintiff's case, that there was no need to call upon the defendants to testify.

Even if I were to be overly generous and hold that the plaintiff had pleaded misrepresentation as a cause of action against the defendants, the evidence adduced by the plaintiff revealed that it was the fraudster who misrepresented to both the plaintiff and to the defendants that he was the registered owner of the property that he was selling.

It is this fraud that induced the sale between the parties.

The fraudster went to the extent of producing cleverly forged documents to support his fraud. The defendants did not assist him in this fraud and were also the victims of the fraud.

In any event, it was not specifically pleaded in the papers whether the alleged fraud by the defendants was innocent, negligent, or fraudulent.

Having alleged that he was induced into the contract by misrepresentation, the plaintiff proceeded to pray for transfer of the property into his name.

I am not clear how the remedy of specific performance was pleaded after the alleged misrepresentation.

I may mention, in passing, that, the Rules require that particulars of any misrepresentation be stated in the pleading: see Rule 103 of the High Court Rules, 1972.

The Rule is often overlooked in drafting summons and declarations.

It is on the basis of the above that I granted absolution from the instance at the close of the plaintiff's case.

Debt re: Contractual and Judgment Debt iro Approach, Proof of Claim, Execution, Revalorization and Civil Imprisonment

The plaintiff is resident in the United Kingdom.

Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.

The property, whose description and location in Ruwa was known to the second defendant's property negotiator, “Nyasha”, is owned by the first defendant who holds freehold title to the land.

It is common cause that the instructions to sell the property did not emanate from the first defendant but from a fraudster, still at large, who was making out to be the first defendant and not only had with him a forged copy of the Deed of Transfer in respect of the property bearing the first defendant's name, but also a driver's licence and a passport with the names of the first defendant but bearing his picture.

It is further common cause that the two plaintiff's relatives viewed the property in the company of Nyasha, the property negotiator, and were satisfied with its condition in relation to the asking price. They accordingly, but separately, recommended to the plaintiff that he purchases the property.

An Agreement of Sale was duly drawn up and the plaintiff cautioned that he wanted the transaction to be supervised by a lawyer. Debut the third respondent in her capacity as a conveyancer and one who was well known to the second defendant and had done work for the second defendant previously.

On the date that the Agreement of Sale was signed, the fraudster, still making out to be the first defendant, attended at the third defendant's offices and not only did he sign the agreement as seller and first defendant, he also collected the deposit of the purchase price that had been paid in the sum of 8,000 pounds sterling. It is at this meeting that the fraudster exhibited the identity documents that he used to commit the fraud. The documents were inspected by all who were present, including the plaintiff's representative, who did not find anything amiss with the documentation.

A further payment in the sum of 6,000 pounds sterling was made some months thereafter.

Soon after the payment of the balance of the purchase price, transfer fees were called for in anticipation of transferring the property into the plaintiff's name. It was at this stage that the fraud was discovered as the Registrar of Deeds raised issues with the authenticity of the Deed of Transfer tendered with the transfer papers and advised that the matter be reported to the police.

Efforts to trace the purported seller of the property to obtain vacant possession of the property by the plaintiff's agent were in vain.

On 21 April 2004, the plaintiff issued summons claiming against all defendants, an order compelling them to transfer the property in dispute to him. In the alternative, the plaintiff sought an order against all the defendants jointly and severally for the payment of damages to be calculated as the purchase price of a similar stand in Ruwa at the time of payment less the Zimbabwe Dollar equivalent of 14,000 pounds sterling, $2,7 million, and interest a temporae morae on the two amounts at the prescribed rates.

The action was defended by all three defendants.

The first defendant denied that he ever put up his property for sale or connived with the fraudster to defraud the plaintiff. The second defendant denied conniving with the fraudster or misrepresenting any facts to the plaintiff. The third defendant also denied conniving with the fraudster or misrepresenting any facts to the plaintiff.

At the pre-trial conference of the matter, four issues were identified for trial. These were;

(i) Whether or not there was misrepresentation on the part of the defendants that led the plaintiff to lose his money;

(ii) The quantum of damages;

(iii) From whom such damages were recoverable; and

(iv) Who should bear costs of suit.

At the trial of the matter, the plaintiff called Simbarashe Sagonda and Thomas Makwangudze as witnesses. The testimonies of the two witnesses were to narrate what is essentially common cause in this trial.

It was Simbarashe Sagonda's testimony, that, when he went to view the property in the company of the property negotiator from the second defendant, Nyasha, they were shown around by a lady of middle age. Also present were a gardener who opened the gate for them, a maid who was busying herself in the kitchen, and some other young man. From the visit, he got the impression that Nyasha had been to the property before and knew all the faults and uncompleted details in the structure.

The witness gave his evidence well and I have no reason to disbelieve him.

As indicated above, his testimony was a narration of facts that are not in dispute as between the parties.

Thomas Makwangudze also testified as to how he went to view the property in the company of Nyasha and one Lovemore Hombarume who was held out to be the nephew of the seller of the property. He also testified as to how an Agreement of Sale was then drafted and that at the time of signing the agreement and paying the deposit, he met the fraudster, who produced a driver's licence and passport all bearing the names of the first defendant. He inspected the documents together with the third defendant, Nyasha, and a friend he had brought along to witness the transaction.

All four of them did not notice anything irregular with the identity documents and were duped into believing that they were dealing with the first defendant, the owner of the property.

He further testified as to how he paid the balance of the purchase price and transfer fees for the property.

Again, in my view, the witness gave his evidence well. I gained the impression that he is honest and reliable.

He found it difficult, on his observations, to categorically hold that the defendants were conniving with the fraudster. He only assumed there may have been connivance between the first defendant and the fraudster but had no basis for making this assumption save the fact that he and Nyasha freely viewed the first defendant's property in the presence of his maid and gardener.

After leading these two witnesses, the plaintiff closed its case.

At the close of the evidence, the plaintiff withdrew his claim against the first defendant, tendering costs. It is therefore unnecessary that I deal with the evidence led by the first defendant in his defence.

The second and third defendants applied for absolution from the instance arguing that the plaintiff had not established a prima facie case that the defendants had misrepresented to him any fact.

I granted the application and indicated that my reasons would follow. I now set them out.

Before I proceed to deal with the application for absolution from the instance, there are two issues that I wish to remark on. These relate to the standard of pleadings exhibited in this matter and the need for legal practitioners at pre-trial conferences to assess the cogency of the evidence they intend to adduce at the trial of the matter.

The purpose of pleadings is not only to inform the other party in concise terms of the precise nature of the claim they have to meet, but, pleadings also serve to identify the branch of the law under which the claim has been brought. Different branches of the law require different matters to be specifically pleaded for a claim to be sustainable under that action.

Thus, for example, in a divorce action, the allegation of irretrievable breakdown is imperative while in a delictual claim for bodily injury, fault has to be averred against the defendant.

This may appear trite but a number of matters coming before the courts seem to indicate that legal practitioners have abandoned the need to plead a cause of action by making the necessary averments to sustain such an action: see S Pilime v B Chisvo HH10-07.

In casu, the plaintiff's legal practitioner appears to have simply rehashed the instructions he had received from his client in the declaration without making an attempt to precisely and concisely lay out the cause of action and the averments necessary to sustain such. I gain this impression from the wording of the concluding paragraph of the declaration which is framed as follows:

“All the defendants were either conniving together or misrepresented facts to the Plaintiff in order to deprive the plaintiff of the said Stand and money.”

The defendants' legal practitioners did not fare any better in the matter.

Instead of seeking clarification of the claim and its basis by either a request for further particulars or an appropriate exception, the defendants were advised to file pleas to the merits which pleas read no better than the declaration as they seek to deny the statements made in the declaration (Mr Nhemwa was not representing the second defendant at the time the pleadings were exchanged).

In my view, the exchange of pleadings between the parties is what may pass as conversation at a social gathering between disagreeing parties but bears not the slightest resemblance to pleadings in a court of law.

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.

The duty of a legal practitioner to precisely and concisely draw up pleading is closely related to the duty to establish and assess the evidence necessary to sustain each important averment made in the pleadings.

This should be done before or at the pretrial conference stage when the summaries of evidence are drawn up. Gaps in the evidence should be identified at this stage and brought to the attention of the party who may thus avoid the loss occasioned by a dismissal or absolution from the instance at the close of the plaintiff's case at trial.

All too often, legal practitioners are heard in a pre-trial conference to whisper to their clients asking how many witnesses they will call at the trial of the matter. Preparedness is the hallmark of a good legal practitioner. It is no use for a legal practitioner to concede, at trial, that his client does not have sufficient evidence when pleading that the matter should not be dismissed but that absolution from the instance be granted.

It is my view, that, had the plaintiff's legal practitioner in this matter assessed the cogency of the evidence that he had, he may have avoided a trial in this matter and legal costs for his client as none of the plaintiff's witnesses testified as to a misrepresentation made to them, and, the second witness in particular, denied that there was any connivance by the defendants to deprive the plaintiff of his money. His testimony was to the effect, that, because the second and third defendants were professionals, they should have guarded against the loss. This, in my view, suggests a claim based on negligence rather than on misrepresentation or fraud.

Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.

In view of the evidence adduced on behalf of the plaintiff, it was clear, at the close of the plaintiff's case, that there was no need to call upon the defendants to testify.

Even if I were to be overly generous and hold that the plaintiff had pleaded misrepresentation as a cause of action against the defendants, the evidence adduced by the plaintiff revealed that it was the fraudster who misrepresented to both the plaintiff and to the defendants that he was the registered owner of the property that he was selling.

It is this fraud that induced the sale between the parties.

The fraudster went to the extent of producing cleverly forged documents to support his fraud. The defendants did not assist him in this fraud and were also the victims of the fraud.

In any event, it was not specifically pleaded in the papers whether the alleged fraud by the defendants was innocent, negligent, or fraudulent.

Having alleged that he was induced into the contract by misrepresentation, the plaintiff proceeded to pray for transfer of the property into his name.

I am not clear how the remedy of specific performance was pleaded after the alleged misrepresentation.

I may mention, in passing, that, the Rules require that particulars of any misrepresentation be stated in the pleading: see Rule 103 of the High Court Rules, 1972.

The Rule is often overlooked in drafting summons and declarations.

It is on the basis of the above that I granted absolution from the instance at the close of the plaintiff's case.

Debt re: Joint and Several Liability

The plaintiff is resident in the United Kingdom.

Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.

The property, whose description and location in Ruwa was known to the second defendant's property negotiator, “Nyasha”, is owned by the first defendant who holds freehold title to the land.

It is common cause that the instructions to sell the property did not emanate from the first defendant but from a fraudster, still at large, who was making out to be the first defendant and not only had with him a forged copy of the Deed of Transfer in respect of the property bearing the first defendant's name, but also a driver's licence and a passport with the names of the first defendant but bearing his picture.

It is further common cause that the two plaintiff's relatives viewed the property in the company of Nyasha, the property negotiator, and were satisfied with its condition in relation to the asking price. They accordingly, but separately, recommended to the plaintiff that he purchases the property.

An Agreement of Sale was duly drawn up and the plaintiff cautioned that he wanted the transaction to be supervised by a lawyer. Debut the third respondent in her capacity as a conveyancer and one who was well known to the second defendant and had done work for the second defendant previously.

On the date that the Agreement of Sale was signed, the fraudster, still making out to be the first defendant, attended at the third defendant's offices and not only did he sign the agreement as seller and first defendant, he also collected the deposit of the purchase price that had been paid in the sum of 8,000 pounds sterling. It is at this meeting that the fraudster exhibited the identity documents that he used to commit the fraud. The documents were inspected by all who were present, including the plaintiff's representative, who did not find anything amiss with the documentation.

A further payment in the sum of 6,000 pounds sterling was made some months thereafter.

Soon after the payment of the balance of the purchase price, transfer fees were called for in anticipation of transferring the property into the plaintiff's name. It was at this stage that the fraud was discovered as the Registrar of Deeds raised issues with the authenticity of the Deed of Transfer tendered with the transfer papers and advised that the matter be reported to the police.

Efforts to trace the purported seller of the property to obtain vacant possession of the property by the plaintiff's agent were in vain.

On 21 April 2004, the plaintiff issued summons claiming against all defendants, an order compelling them to transfer the property in dispute to him. In the alternative, the plaintiff sought an order against all the defendants jointly and severally for the payment of damages to be calculated as the purchase price of a similar stand in Ruwa at the time of payment less the Zimbabwe Dollar equivalent of 14,000 pounds sterling, $2,7 million, and interest a temporae morae on the two amounts at the prescribed rates.

The action was defended by all three defendants.

The first defendant denied that he ever put up his property for sale or connived with the fraudster to defraud the plaintiff. The second defendant denied conniving with the fraudster or misrepresenting any facts to the plaintiff. The third defendant also denied conniving with the fraudster or misrepresenting any facts to the plaintiff.

At the pre-trial conference of the matter, four issues were identified for trial. These were;

(i) Whether or not there was misrepresentation on the part of the defendants that led the plaintiff to lose his money;

(ii) The quantum of damages;

(iii) From whom such damages were recoverable; and

(iv) Who should bear costs of suit.

At the trial of the matter, the plaintiff called Simbarashe Sagonda and Thomas Makwangudze as witnesses. The testimonies of the two witnesses were to narrate what is essentially common cause in this trial.

It was Simbarashe Sagonda's testimony, that, when he went to view the property in the company of the property negotiator from the second defendant, Nyasha, they were shown around by a lady of middle age. Also present were a gardener who opened the gate for them, a maid who was busying herself in the kitchen, and some other young man. From the visit, he got the impression that Nyasha had been to the property before and knew all the faults and uncompleted details in the structure.

The witness gave his evidence well and I have no reason to disbelieve him.

As indicated above, his testimony was a narration of facts that are not in dispute as between the parties.

Thomas Makwangudze also testified as to how he went to view the property in the company of Nyasha and one Lovemore Hombarume who was held out to be the nephew of the seller of the property. He also testified as to how an Agreement of Sale was then drafted and that at the time of signing the agreement and paying the deposit, he met the fraudster, who produced a driver's licence and passport all bearing the names of the first defendant. He inspected the documents together with the third defendant, Nyasha, and a friend he had brought along to witness the transaction.

All four of them did not notice anything irregular with the identity documents and were duped into believing that they were dealing with the first defendant, the owner of the property.

He further testified as to how he paid the balance of the purchase price and transfer fees for the property.

Again, in my view, the witness gave his evidence well. I gained the impression that he is honest and reliable.

He found it difficult, on his observations, to categorically hold that the defendants were conniving with the fraudster. He only assumed there may have been connivance between the first defendant and the fraudster but had no basis for making this assumption save the fact that he and Nyasha freely viewed the first defendant's property in the presence of his maid and gardener.

After leading these two witnesses, the plaintiff closed its case.

At the close of the evidence, the plaintiff withdrew his claim against the first defendant, tendering costs. It is therefore unnecessary that I deal with the evidence led by the first defendant in his defence.

The second and third defendants applied for absolution from the instance arguing that the plaintiff had not established a prima facie case that the defendants had misrepresented to him any fact.

I granted the application and indicated that my reasons would follow. I now set them out.

Before I proceed to deal with the application for absolution from the instance, there are two issues that I wish to remark on. These relate to the standard of pleadings exhibited in this matter and the need for legal practitioners at pre-trial conferences to assess the cogency of the evidence they intend to adduce at the trial of the matter.

The purpose of pleadings is not only to inform the other party in concise terms of the precise nature of the claim they have to meet, but, pleadings also serve to identify the branch of the law under which the claim has been brought. Different branches of the law require different matters to be specifically pleaded for a claim to be sustainable under that action.

Thus, for example, in a divorce action, the allegation of irretrievable breakdown is imperative while in a delictual claim for bodily injury, fault has to be averred against the defendant.

This may appear trite but a number of matters coming before the courts seem to indicate that legal practitioners have abandoned the need to plead a cause of action by making the necessary averments to sustain such an action: see S Pilime v B Chisvo HH10-07.

In casu, the plaintiff's legal practitioner appears to have simply rehashed the instructions he had received from his client in the declaration without making an attempt to precisely and concisely lay out the cause of action and the averments necessary to sustain such. I gain this impression from the wording of the concluding paragraph of the declaration which is framed as follows:

“All the defendants were either conniving together or misrepresented facts to the Plaintiff in order to deprive the plaintiff of the said Stand and money.”

The defendants' legal practitioners did not fare any better in the matter.

Instead of seeking clarification of the claim and its basis by either a request for further particulars or an appropriate exception, the defendants were advised to file pleas to the merits which pleas read no better than the declaration as they seek to deny the statements made in the declaration (Mr Nhemwa was not representing the second defendant at the time the pleadings were exchanged).

In my view, the exchange of pleadings between the parties is what may pass as conversation at a social gathering between disagreeing parties but bears not the slightest resemblance to pleadings in a court of law.

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.

The duty of a legal practitioner to precisely and concisely draw up pleading is closely related to the duty to establish and assess the evidence necessary to sustain each important averment made in the pleadings.

This should be done before or at the pretrial conference stage when the summaries of evidence are drawn up. Gaps in the evidence should be identified at this stage and brought to the attention of the party who may thus avoid the loss occasioned by a dismissal or absolution from the instance at the close of the plaintiff's case at trial.

All too often, legal practitioners are heard in a pre-trial conference to whisper to their clients asking how many witnesses they will call at the trial of the matter. Preparedness is the hallmark of a good legal practitioner. It is no use for a legal practitioner to concede, at trial, that his client does not have sufficient evidence when pleading that the matter should not be dismissed but that absolution from the instance be granted.

It is my view, that, had the plaintiff's legal practitioner in this matter assessed the cogency of the evidence that he had, he may have avoided a trial in this matter and legal costs for his client as none of the plaintiff's witnesses testified as to a misrepresentation made to them, and, the second witness in particular, denied that there was any connivance by the defendants to deprive the plaintiff of his money. His testimony was to the effect, that, because the second and third defendants were professionals, they should have guarded against the loss. This, in my view, suggests a claim based on negligence rather than on misrepresentation or fraud.

Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.

In view of the evidence adduced on behalf of the plaintiff, it was clear, at the close of the plaintiff's case, that there was no need to call upon the defendants to testify.

Even if I were to be overly generous and hold that the plaintiff had pleaded misrepresentation as a cause of action against the defendants, the evidence adduced by the plaintiff revealed that it was the fraudster who misrepresented to both the plaintiff and to the defendants that he was the registered owner of the property that he was selling.

It is this fraud that induced the sale between the parties.

The fraudster went to the extent of producing cleverly forged documents to support his fraud. The defendants did not assist him in this fraud and were also the victims of the fraud.

In any event, it was not specifically pleaded in the papers whether the alleged fraud by the defendants was innocent, negligent, or fraudulent.

Having alleged that he was induced into the contract by misrepresentation, the plaintiff proceeded to pray for transfer of the property into his name.

I am not clear how the remedy of specific performance was pleaded after the alleged misrepresentation.

I may mention, in passing, that, the Rules require that particulars of any misrepresentation be stated in the pleading: see Rule 103 of the High Court Rules, 1972.

The Rule is often overlooked in drafting summons and declarations.

It is on the basis of the above that I granted absolution from the instance at the close of the plaintiff's case.

Negligence or Dolus re: Liability iro Loss Arising from Commercial and Professional Negligence

The plaintiff is resident in the United Kingdom.

Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.

The property, whose description and location in Ruwa was known to the second defendant's property negotiator, “Nyasha”, is owned by the first defendant who holds freehold title to the land.

It is common cause that the instructions to sell the property did not emanate from the first defendant but from a fraudster, still at large, who was making out to be the first defendant and not only had with him a forged copy of the Deed of Transfer in respect of the property bearing the first defendant's name, but also a driver's licence and a passport with the names of the first defendant but bearing his picture.

It is further common cause that the two plaintiff's relatives viewed the property in the company of Nyasha, the property negotiator, and were satisfied with its condition in relation to the asking price. They accordingly, but separately, recommended to the plaintiff that he purchases the property.

An Agreement of Sale was duly drawn up and the plaintiff cautioned that he wanted the transaction to be supervised by a lawyer. Debut the third respondent in her capacity as a conveyancer and one who was well known to the second defendant and had done work for the second defendant previously.

On the date that the Agreement of Sale was signed, the fraudster, still making out to be the first defendant, attended at the third defendant's offices and not only did he sign the agreement as seller and first defendant, he also collected the deposit of the purchase price that had been paid in the sum of 8,000 pounds sterling. It is at this meeting that the fraudster exhibited the identity documents that he used to commit the fraud. The documents were inspected by all who were present, including the plaintiff's representative, who did not find anything amiss with the documentation.

A further payment in the sum of 6,000 pounds sterling was made some months thereafter.

Soon after the payment of the balance of the purchase price, transfer fees were called for in anticipation of transferring the property into the plaintiff's name. It was at this stage that the fraud was discovered as the Registrar of Deeds raised issues with the authenticity of the Deed of Transfer tendered with the transfer papers and advised that the matter be reported to the police.

Efforts to trace the purported seller of the property to obtain vacant possession of the property by the plaintiff's agent were in vain.

On 21 April 2004, the plaintiff issued summons claiming against all defendants, an order compelling them to transfer the property in dispute to him. In the alternative, the plaintiff sought an order against all the defendants jointly and severally for the payment of damages to be calculated as the purchase price of a similar stand in Ruwa at the time of payment less the Zimbabwe Dollar equivalent of 14,000 pounds sterling, $2,7 million, and interest a temporae morae on the two amounts at the prescribed rates.

The action was defended by all three defendants.

The first defendant denied that he ever put up his property for sale or connived with the fraudster to defraud the plaintiff. The second defendant denied conniving with the fraudster or misrepresenting any facts to the plaintiff. The third defendant also denied conniving with the fraudster or misrepresenting any facts to the plaintiff.

At the pre-trial conference of the matter, four issues were identified for trial. These were;

(i) Whether or not there was misrepresentation on the part of the defendants that led the plaintiff to lose his money;

(ii) The quantum of damages;

(iii) From whom such damages were recoverable; and

(iv) Who should bear costs of suit.

At the trial of the matter, the plaintiff called Simbarashe Sagonda and Thomas Makwangudze as witnesses. The testimonies of the two witnesses were to narrate what is essentially common cause in this trial.

It was Simbarashe Sagonda's testimony, that, when he went to view the property in the company of the property negotiator from the second defendant, Nyasha, they were shown around by a lady of middle age. Also present were a gardener who opened the gate for them, a maid who was busying herself in the kitchen, and some other young man. From the visit, he got the impression that Nyasha had been to the property before and knew all the faults and uncompleted details in the structure.

The witness gave his evidence well and I have no reason to disbelieve him.

As indicated above, his testimony was a narration of facts that are not in dispute as between the parties.

Thomas Makwangudze also testified as to how he went to view the property in the company of Nyasha and one Lovemore Hombarume who was held out to be the nephew of the seller of the property. He also testified as to how an Agreement of Sale was then drafted and that at the time of signing the agreement and paying the deposit, he met the fraudster, who produced a driver's licence and passport all bearing the names of the first defendant. He inspected the documents together with the third defendant, Nyasha, and a friend he had brought along to witness the transaction.

All four of them did not notice anything irregular with the identity documents and were duped into believing that they were dealing with the first defendant, the owner of the property.

He further testified as to how he paid the balance of the purchase price and transfer fees for the property.

Again, in my view, the witness gave his evidence well. I gained the impression that he is honest and reliable.

He found it difficult, on his observations, to categorically hold that the defendants were conniving with the fraudster. He only assumed there may have been connivance between the first defendant and the fraudster but had no basis for making this assumption save the fact that he and Nyasha freely viewed the first defendant's property in the presence of his maid and gardener.

After leading these two witnesses, the plaintiff closed its case.

At the close of the evidence, the plaintiff withdrew his claim against the first defendant, tendering costs. It is therefore unnecessary that I deal with the evidence led by the first defendant in his defence.

The second and third defendants applied for absolution from the instance arguing that the plaintiff had not established a prima facie case that the defendants had misrepresented to him any fact.

I granted the application and indicated that my reasons would follow. I now set them out.

Before I proceed to deal with the application for absolution from the instance, there are two issues that I wish to remark on. These relate to the standard of pleadings exhibited in this matter and the need for legal practitioners at pre-trial conferences to assess the cogency of the evidence they intend to adduce at the trial of the matter.

The purpose of pleadings is not only to inform the other party in concise terms of the precise nature of the claim they have to meet, but, pleadings also serve to identify the branch of the law under which the claim has been brought. Different branches of the law require different matters to be specifically pleaded for a claim to be sustainable under that action.

Thus, for example, in a divorce action, the allegation of irretrievable breakdown is imperative while in a delictual claim for bodily injury, fault has to be averred against the defendant.

This may appear trite but a number of matters coming before the courts seem to indicate that legal practitioners have abandoned the need to plead a cause of action by making the necessary averments to sustain such an action: see S Pilime v B Chisvo HH10-07.

In casu, the plaintiff's legal practitioner appears to have simply rehashed the instructions he had received from his client in the declaration without making an attempt to precisely and concisely lay out the cause of action and the averments necessary to sustain such. I gain this impression from the wording of the concluding paragraph of the declaration which is framed as follows:

“All the defendants were either conniving together or misrepresented facts to the Plaintiff in order to deprive the plaintiff of the said Stand and money.”

The defendants' legal practitioners did not fare any better in the matter.

Instead of seeking clarification of the claim and its basis by either a request for further particulars or an appropriate exception, the defendants were advised to file pleas to the merits which pleas read no better than the declaration as they seek to deny the statements made in the declaration (Mr Nhemwa was not representing the second defendant at the time the pleadings were exchanged).

In my view, the exchange of pleadings between the parties is what may pass as conversation at a social gathering between disagreeing parties but bears not the slightest resemblance to pleadings in a court of law.

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.

The duty of a legal practitioner to precisely and concisely draw up pleading is closely related to the duty to establish and assess the evidence necessary to sustain each important averment made in the pleadings.

This should be done before or at the pretrial conference stage when the summaries of evidence are drawn up. Gaps in the evidence should be identified at this stage and brought to the attention of the party who may thus avoid the loss occasioned by a dismissal or absolution from the instance at the close of the plaintiff's case at trial.

All too often, legal practitioners are heard in a pre-trial conference to whisper to their clients asking how many witnesses they will call at the trial of the matter. Preparedness is the hallmark of a good legal practitioner. It is no use for a legal practitioner to concede, at trial, that his client does not have sufficient evidence when pleading that the matter should not be dismissed but that absolution from the instance be granted.

It is my view, that, had the plaintiff's legal practitioner in this matter assessed the cogency of the evidence that he had, he may have avoided a trial in this matter and legal costs for his client as none of the plaintiff's witnesses testified as to a misrepresentation made to them, and, the second witness in particular, denied that there was any connivance by the defendants to deprive the plaintiff of his money. His testimony was to the effect, that, because the second and third defendants were professionals, they should have guarded against the loss. This, in my view, suggests a claim based on negligence rather than on misrepresentation or fraud.

Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.

In view of the evidence adduced on behalf of the plaintiff, it was clear, at the close of the plaintiff's case, that there was no need to call upon the defendants to testify.

Even if I were to be overly generous and hold that the plaintiff had pleaded misrepresentation as a cause of action against the defendants, the evidence adduced by the plaintiff revealed that it was the fraudster who misrepresented to both the plaintiff and to the defendants that he was the registered owner of the property that he was selling.

It is this fraud that induced the sale between the parties.

The fraudster went to the extent of producing cleverly forged documents to support his fraud. The defendants did not assist him in this fraud and were also the victims of the fraud.

In any event, it was not specifically pleaded in the papers whether the alleged fraud by the defendants was innocent, negligent, or fraudulent.

Having alleged that he was induced into the contract by misrepresentation, the plaintiff proceeded to pray for transfer of the property into his name.

I am not clear how the remedy of specific performance was pleaded after the alleged misrepresentation.

I may mention, in passing, that, the Rules require that particulars of any misrepresentation be stated in the pleading: see Rule 103 of the High Court Rules, 1972.

The Rule is often overlooked in drafting summons and declarations.

It is on the basis of the above that I granted absolution from the instance at the close of the plaintiff's case.

Delictual Damages re: Professional Negligence

The plaintiff is resident in the United Kingdom.

Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.

The property, whose description and location in Ruwa was known to the second defendant's property negotiator, “Nyasha”, is owned by the first defendant who holds freehold title to the land.

It is common cause that the instructions to sell the property did not emanate from the first defendant but from a fraudster, still at large, who was making out to be the first defendant and not only had with him a forged copy of the Deed of Transfer in respect of the property bearing the first defendant's name, but also a driver's licence and a passport with the names of the first defendant but bearing his picture.

It is further common cause that the two plaintiff's relatives viewed the property in the company of Nyasha, the property negotiator, and were satisfied with its condition in relation to the asking price. They accordingly, but separately, recommended to the plaintiff that he purchases the property.

An Agreement of Sale was duly drawn up and the plaintiff cautioned that he wanted the transaction to be supervised by a lawyer. Debut the third respondent in her capacity as a conveyancer and one who was well known to the second defendant and had done work for the second defendant previously.

On the date that the Agreement of Sale was signed, the fraudster, still making out to be the first defendant, attended at the third defendant's offices and not only did he sign the agreement as seller and first defendant, he also collected the deposit of the purchase price that had been paid in the sum of 8,000 pounds sterling. It is at this meeting that the fraudster exhibited the identity documents that he used to commit the fraud. The documents were inspected by all who were present, including the plaintiff's representative, who did not find anything amiss with the documentation.

A further payment in the sum of 6,000 pounds sterling was made some months thereafter.

Soon after the payment of the balance of the purchase price, transfer fees were called for in anticipation of transferring the property into the plaintiff's name. It was at this stage that the fraud was discovered as the Registrar of Deeds raised issues with the authenticity of the Deed of Transfer tendered with the transfer papers and advised that the matter be reported to the police.

Efforts to trace the purported seller of the property to obtain vacant possession of the property by the plaintiff's agent were in vain.

On 21 April 2004, the plaintiff issued summons claiming against all defendants, an order compelling them to transfer the property in dispute to him. In the alternative, the plaintiff sought an order against all the defendants jointly and severally for the payment of damages to be calculated as the purchase price of a similar stand in Ruwa at the time of payment less the Zimbabwe Dollar equivalent of 14,000 pounds sterling, $2,7 million, and interest a temporae morae on the two amounts at the prescribed rates.

The action was defended by all three defendants.

The first defendant denied that he ever put up his property for sale or connived with the fraudster to defraud the plaintiff. The second defendant denied conniving with the fraudster or misrepresenting any facts to the plaintiff. The third defendant also denied conniving with the fraudster or misrepresenting any facts to the plaintiff.

At the pre-trial conference of the matter, four issues were identified for trial. These were;

(i) Whether or not there was misrepresentation on the part of the defendants that led the plaintiff to lose his money;

(ii) The quantum of damages;

(iii) From whom such damages were recoverable; and

(iv) Who should bear costs of suit.

At the trial of the matter, the plaintiff called Simbarashe Sagonda and Thomas Makwangudze as witnesses. The testimonies of the two witnesses were to narrate what is essentially common cause in this trial.

It was Simbarashe Sagonda's testimony, that, when he went to view the property in the company of the property negotiator from the second defendant, Nyasha, they were shown around by a lady of middle age. Also present were a gardener who opened the gate for them, a maid who was busying herself in the kitchen, and some other young man. From the visit, he got the impression that Nyasha had been to the property before and knew all the faults and uncompleted details in the structure.

The witness gave his evidence well and I have no reason to disbelieve him.

As indicated above, his testimony was a narration of facts that are not in dispute as between the parties.

Thomas Makwangudze also testified as to how he went to view the property in the company of Nyasha and one Lovemore Hombarume who was held out to be the nephew of the seller of the property. He also testified as to how an Agreement of Sale was then drafted and that at the time of signing the agreement and paying the deposit, he met the fraudster, who produced a driver's licence and passport all bearing the names of the first defendant. He inspected the documents together with the third defendant, Nyasha, and a friend he had brought along to witness the transaction.

All four of them did not notice anything irregular with the identity documents and were duped into believing that they were dealing with the first defendant, the owner of the property.

He further testified as to how he paid the balance of the purchase price and transfer fees for the property.

Again, in my view, the witness gave his evidence well. I gained the impression that he is honest and reliable.

He found it difficult, on his observations, to categorically hold that the defendants were conniving with the fraudster. He only assumed there may have been connivance between the first defendant and the fraudster but had no basis for making this assumption save the fact that he and Nyasha freely viewed the first defendant's property in the presence of his maid and gardener.

After leading these two witnesses, the plaintiff closed its case.

At the close of the evidence, the plaintiff withdrew his claim against the first defendant, tendering costs. It is therefore unnecessary that I deal with the evidence led by the first defendant in his defence.

The second and third defendants applied for absolution from the instance arguing that the plaintiff had not established a prima facie case that the defendants had misrepresented to him any fact.

I granted the application and indicated that my reasons would follow. I now set them out.

Before I proceed to deal with the application for absolution from the instance, there are two issues that I wish to remark on. These relate to the standard of pleadings exhibited in this matter and the need for legal practitioners at pre-trial conferences to assess the cogency of the evidence they intend to adduce at the trial of the matter.

The purpose of pleadings is not only to inform the other party in concise terms of the precise nature of the claim they have to meet, but, pleadings also serve to identify the branch of the law under which the claim has been brought. Different branches of the law require different matters to be specifically pleaded for a claim to be sustainable under that action.

Thus, for example, in a divorce action, the allegation of irretrievable breakdown is imperative while in a delictual claim for bodily injury, fault has to be averred against the defendant.

This may appear trite but a number of matters coming before the courts seem to indicate that legal practitioners have abandoned the need to plead a cause of action by making the necessary averments to sustain such an action: see S Pilime v B Chisvo HH10-07.

In casu, the plaintiff's legal practitioner appears to have simply rehashed the instructions he had received from his client in the declaration without making an attempt to precisely and concisely lay out the cause of action and the averments necessary to sustain such. I gain this impression from the wording of the concluding paragraph of the declaration which is framed as follows:

“All the defendants were either conniving together or misrepresented facts to the Plaintiff in order to deprive the plaintiff of the said Stand and money.”

The defendants' legal practitioners did not fare any better in the matter.

Instead of seeking clarification of the claim and its basis by either a request for further particulars or an appropriate exception, the defendants were advised to file pleas to the merits which pleas read no better than the declaration as they seek to deny the statements made in the declaration (Mr Nhemwa was not representing the second defendant at the time the pleadings were exchanged).

In my view, the exchange of pleadings between the parties is what may pass as conversation at a social gathering between disagreeing parties but bears not the slightest resemblance to pleadings in a court of law.

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.

The duty of a legal practitioner to precisely and concisely draw up pleading is closely related to the duty to establish and assess the evidence necessary to sustain each important averment made in the pleadings.

This should be done before or at the pretrial conference stage when the summaries of evidence are drawn up. Gaps in the evidence should be identified at this stage and brought to the attention of the party who may thus avoid the loss occasioned by a dismissal or absolution from the instance at the close of the plaintiff's case at trial.

All too often, legal practitioners are heard in a pre-trial conference to whisper to their clients asking how many witnesses they will call at the trial of the matter. Preparedness is the hallmark of a good legal practitioner. It is no use for a legal practitioner to concede, at trial, that his client does not have sufficient evidence when pleading that the matter should not be dismissed but that absolution from the instance be granted.

It is my view, that, had the plaintiff's legal practitioner in this matter assessed the cogency of the evidence that he had, he may have avoided a trial in this matter and legal costs for his client as none of the plaintiff's witnesses testified as to a misrepresentation made to them, and, the second witness in particular, denied that there was any connivance by the defendants to deprive the plaintiff of his money. His testimony was to the effect, that, because the second and third defendants were professionals, they should have guarded against the loss. This, in my view, suggests a claim based on negligence rather than on misrepresentation or fraud.

Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.

In view of the evidence adduced on behalf of the plaintiff, it was clear, at the close of the plaintiff's case, that there was no need to call upon the defendants to testify.

Even if I were to be overly generous and hold that the plaintiff had pleaded misrepresentation as a cause of action against the defendants, the evidence adduced by the plaintiff revealed that it was the fraudster who misrepresented to both the plaintiff and to the defendants that he was the registered owner of the property that he was selling.

It is this fraud that induced the sale between the parties.

The fraudster went to the extent of producing cleverly forged documents to support his fraud. The defendants did not assist him in this fraud and were also the victims of the fraud.

In any event, it was not specifically pleaded in the papers whether the alleged fraud by the defendants was innocent, negligent, or fraudulent.

Having alleged that he was induced into the contract by misrepresentation, the plaintiff proceeded to pray for transfer of the property into his name.

I am not clear how the remedy of specific performance was pleaded after the alleged misrepresentation.

I may mention, in passing, that, the Rules require that particulars of any misrepresentation be stated in the pleading: see Rule 103 of the High Court Rules, 1972.

The Rule is often overlooked in drafting summons and declarations.

It is on the basis of the above that I granted absolution from the instance at the close of the plaintiff's case.

Consensus Ad Idem re: Fraud or Fraudum Legis, Duress, Undue Influence and Misrepresentation

The plaintiff is resident in the United Kingdom.

Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.

The property, whose description and location in Ruwa was known to the second defendant's property negotiator, “Nyasha”, is owned by the first defendant who holds freehold title to the land.

It is common cause that the instructions to sell the property did not emanate from the first defendant but from a fraudster, still at large, who was making out to be the first defendant and not only had with him a forged copy of the Deed of Transfer in respect of the property bearing the first defendant's name, but also a driver's licence and a passport with the names of the first defendant but bearing his picture.

It is further common cause that the two plaintiff's relatives viewed the property in the company of Nyasha, the property negotiator, and were satisfied with its condition in relation to the asking price. They accordingly, but separately, recommended to the plaintiff that he purchases the property.

An Agreement of Sale was duly drawn up and the plaintiff cautioned that he wanted the transaction to be supervised by a lawyer. Debut the third respondent in her capacity as a conveyancer and one who was well known to the second defendant and had done work for the second defendant previously.

On the date that the Agreement of Sale was signed, the fraudster, still making out to be the first defendant, attended at the third defendant's offices and not only did he sign the agreement as seller and first defendant, he also collected the deposit of the purchase price that had been paid in the sum of 8,000 pounds sterling. It is at this meeting that the fraudster exhibited the identity documents that he used to commit the fraud. The documents were inspected by all who were present, including the plaintiff's representative, who did not find anything amiss with the documentation.

A further payment in the sum of 6,000 pounds sterling was made some months thereafter.

Soon after the payment of the balance of the purchase price, transfer fees were called for in anticipation of transferring the property into the plaintiff's name. It was at this stage that the fraud was discovered as the Registrar of Deeds raised issues with the authenticity of the Deed of Transfer tendered with the transfer papers and advised that the matter be reported to the police.

Efforts to trace the purported seller of the property to obtain vacant possession of the property by the plaintiff's agent were in vain.

On 21 April 2004, the plaintiff issued summons claiming against all defendants, an order compelling them to transfer the property in dispute to him. In the alternative, the plaintiff sought an order against all the defendants jointly and severally for the payment of damages to be calculated as the purchase price of a similar stand in Ruwa at the time of payment less the Zimbabwe Dollar equivalent of 14,000 pounds sterling, $2,7 million, and interest a temporae morae on the two amounts at the prescribed rates.

The action was defended by all three defendants.

The first defendant denied that he ever put up his property for sale or connived with the fraudster to defraud the plaintiff. The second defendant denied conniving with the fraudster or misrepresenting any facts to the plaintiff. The third defendant also denied conniving with the fraudster or misrepresenting any facts to the plaintiff.

At the pre-trial conference of the matter, four issues were identified for trial. These were;

(i) Whether or not there was misrepresentation on the part of the defendants that led the plaintiff to lose his money;

(ii) The quantum of damages;

(iii) From whom such damages were recoverable; and

(iv) Who should bear costs of suit.

At the trial of the matter, the plaintiff called Simbarashe Sagonda and Thomas Makwangudze as witnesses. The testimonies of the two witnesses were to narrate what is essentially common cause in this trial.

It was Simbarashe Sagonda's testimony, that, when he went to view the property in the company of the property negotiator from the second defendant, Nyasha, they were shown around by a lady of middle age. Also present were a gardener who opened the gate for them, a maid who was busying herself in the kitchen, and some other young man. From the visit, he got the impression that Nyasha had been to the property before and knew all the faults and uncompleted details in the structure.

The witness gave his evidence well and I have no reason to disbelieve him.

As indicated above, his testimony was a narration of facts that are not in dispute as between the parties.

Thomas Makwangudze also testified as to how he went to view the property in the company of Nyasha and one Lovemore Hombarume who was held out to be the nephew of the seller of the property. He also testified as to how an Agreement of Sale was then drafted and that at the time of signing the agreement and paying the deposit, he met the fraudster, who produced a driver's licence and passport all bearing the names of the first defendant. He inspected the documents together with the third defendant, Nyasha, and a friend he had brought along to witness the transaction.

All four of them did not notice anything irregular with the identity documents and were duped into believing that they were dealing with the first defendant, the owner of the property.

He further testified as to how he paid the balance of the purchase price and transfer fees for the property.

Again, in my view, the witness gave his evidence well. I gained the impression that he is honest and reliable.

He found it difficult, on his observations, to categorically hold that the defendants were conniving with the fraudster. He only assumed there may have been connivance between the first defendant and the fraudster but had no basis for making this assumption save the fact that he and Nyasha freely viewed the first defendant's property in the presence of his maid and gardener.

After leading these two witnesses, the plaintiff closed its case.

At the close of the evidence, the plaintiff withdrew his claim against the first defendant, tendering costs. It is therefore unnecessary that I deal with the evidence led by the first defendant in his defence.

The second and third defendants applied for absolution from the instance arguing that the plaintiff had not established a prima facie case that the defendants had misrepresented to him any fact.

I granted the application and indicated that my reasons would follow. I now set them out.

Before I proceed to deal with the application for absolution from the instance, there are two issues that I wish to remark on. These relate to the standard of pleadings exhibited in this matter and the need for legal practitioners at pre-trial conferences to assess the cogency of the evidence they intend to adduce at the trial of the matter.

The purpose of pleadings is not only to inform the other party in concise terms of the precise nature of the claim they have to meet, but, pleadings also serve to identify the branch of the law under which the claim has been brought. Different branches of the law require different matters to be specifically pleaded for a claim to be sustainable under that action.

Thus, for example, in a divorce action, the allegation of irretrievable breakdown is imperative while in a delictual claim for bodily injury, fault has to be averred against the defendant.

This may appear trite but a number of matters coming before the courts seem to indicate that legal practitioners have abandoned the need to plead a cause of action by making the necessary averments to sustain such an action: see S Pilime v B Chisvo HH10-07.

In casu, the plaintiff's legal practitioner appears to have simply rehashed the instructions he had received from his client in the declaration without making an attempt to precisely and concisely lay out the cause of action and the averments necessary to sustain such. I gain this impression from the wording of the concluding paragraph of the declaration which is framed as follows:

“All the defendants were either conniving together or misrepresented facts to the Plaintiff in order to deprive the plaintiff of the said Stand and money.”

The defendants' legal practitioners did not fare any better in the matter.

Instead of seeking clarification of the claim and its basis by either a request for further particulars or an appropriate exception, the defendants were advised to file pleas to the merits which pleas read no better than the declaration as they seek to deny the statements made in the declaration (Mr Nhemwa was not representing the second defendant at the time the pleadings were exchanged).

In my view, the exchange of pleadings between the parties is what may pass as conversation at a social gathering between disagreeing parties but bears not the slightest resemblance to pleadings in a court of law.

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.

The duty of a legal practitioner to precisely and concisely draw up pleading is closely related to the duty to establish and assess the evidence necessary to sustain each important averment made in the pleadings.

This should be done before or at the pretrial conference stage when the summaries of evidence are drawn up. Gaps in the evidence should be identified at this stage and brought to the attention of the party who may thus avoid the loss occasioned by a dismissal or absolution from the instance at the close of the plaintiff's case at trial.

All too often, legal practitioners are heard in a pre-trial conference to whisper to their clients asking how many witnesses they will call at the trial of the matter. Preparedness is the hallmark of a good legal practitioner. It is no use for a legal practitioner to concede, at trial, that his client does not have sufficient evidence when pleading that the matter should not be dismissed but that absolution from the instance be granted.

It is my view, that, had the plaintiff's legal practitioner in this matter assessed the cogency of the evidence that he had, he may have avoided a trial in this matter and legal costs for his client as none of the plaintiff's witnesses testified as to a misrepresentation made to them, and, the second witness in particular, denied that there was any connivance by the defendants to deprive the plaintiff of his money. His testimony was to the effect, that, because the second and third defendants were professionals, they should have guarded against the loss. This, in my view, suggests a claim based on negligence rather than on misrepresentation or fraud.

Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.

In view of the evidence adduced on behalf of the plaintiff, it was clear, at the close of the plaintiff's case, that there was no need to call upon the defendants to testify.

Even if I were to be overly generous and hold that the plaintiff had pleaded misrepresentation as a cause of action against the defendants, the evidence adduced by the plaintiff revealed that it was the fraudster who misrepresented to both the plaintiff and to the defendants that he was the registered owner of the property that he was selling.

It is this fraud that induced the sale between the parties.

The fraudster went to the extent of producing cleverly forged documents to support his fraud. The defendants did not assist him in this fraud and were also the victims of the fraud.

In any event, it was not specifically pleaded in the papers whether the alleged fraud by the defendants was innocent, negligent, or fraudulent.

Having alleged that he was induced into the contract by misrepresentation, the plaintiff proceeded to pray for transfer of the property into his name.

I am not clear how the remedy of specific performance was pleaded after the alleged misrepresentation.

I may mention, in passing, that, the Rules require that particulars of any misrepresentation be stated in the pleading: see Rule 103 of the High Court Rules, 1972.

The Rule is often overlooked in drafting summons and declarations.

It is on the basis of the above that I granted absolution from the instance at the close of the plaintiff's case.

Specific Performance re: Approach, Impossibility of Performance and the Exceptio Non Adimpleti Contractus

The plaintiff is resident in the United Kingdom.

Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.

The property, whose description and location in Ruwa was known to the second defendant's property negotiator, “Nyasha”, is owned by the first defendant who holds freehold title to the land.

It is common cause that the instructions to sell the property did not emanate from the first defendant but from a fraudster, still at large, who was making out to be the first defendant and not only had with him a forged copy of the Deed of Transfer in respect of the property bearing the first defendant's name, but also a driver's licence and a passport with the names of the first defendant but bearing his picture.

It is further common cause that the two plaintiff's relatives viewed the property in the company of Nyasha, the property negotiator, and were satisfied with its condition in relation to the asking price. They accordingly, but separately, recommended to the plaintiff that he purchases the property.

An Agreement of Sale was duly drawn up and the plaintiff cautioned that he wanted the transaction to be supervised by a lawyer. Debut the third respondent in her capacity as a conveyancer and one who was well known to the second defendant and had done work for the second defendant previously.

On the date that the Agreement of Sale was signed, the fraudster, still making out to be the first defendant, attended at the third defendant's offices and not only did he sign the agreement as seller and first defendant, he also collected the deposit of the purchase price that had been paid in the sum of 8,000 pounds sterling. It is at this meeting that the fraudster exhibited the identity documents that he used to commit the fraud. The documents were inspected by all who were present, including the plaintiff's representative, who did not find anything amiss with the documentation.

A further payment in the sum of 6,000 pounds sterling was made some months thereafter.

Soon after the payment of the balance of the purchase price, transfer fees were called for in anticipation of transferring the property into the plaintiff's name. It was at this stage that the fraud was discovered as the Registrar of Deeds raised issues with the authenticity of the Deed of Transfer tendered with the transfer papers and advised that the matter be reported to the police.

Efforts to trace the purported seller of the property to obtain vacant possession of the property by the plaintiff's agent were in vain.

On 21 April 2004, the plaintiff issued summons claiming against all defendants, an order compelling them to transfer the property in dispute to him. In the alternative, the plaintiff sought an order against all the defendants jointly and severally for the payment of damages to be calculated as the purchase price of a similar stand in Ruwa at the time of payment less the Zimbabwe Dollar equivalent of 14,000 pounds sterling, $2,7 million, and interest a temporae morae on the two amounts at the prescribed rates.

The action was defended by all three defendants.

The first defendant denied that he ever put up his property for sale or connived with the fraudster to defraud the plaintiff. The second defendant denied conniving with the fraudster or misrepresenting any facts to the plaintiff. The third defendant also denied conniving with the fraudster or misrepresenting any facts to the plaintiff.

At the pre-trial conference of the matter, four issues were identified for trial. These were;

(i) Whether or not there was misrepresentation on the part of the defendants that led the plaintiff to lose his money;

(ii) The quantum of damages;

(iii) From whom such damages were recoverable; and

(iv) Who should bear costs of suit.

At the trial of the matter, the plaintiff called Simbarashe Sagonda and Thomas Makwangudze as witnesses. The testimonies of the two witnesses were to narrate what is essentially common cause in this trial.

It was Simbarashe Sagonda's testimony, that, when he went to view the property in the company of the property negotiator from the second defendant, Nyasha, they were shown around by a lady of middle age. Also present were a gardener who opened the gate for them, a maid who was busying herself in the kitchen, and some other young man. From the visit, he got the impression that Nyasha had been to the property before and knew all the faults and uncompleted details in the structure.

The witness gave his evidence well and I have no reason to disbelieve him.

As indicated above, his testimony was a narration of facts that are not in dispute as between the parties.

Thomas Makwangudze also testified as to how he went to view the property in the company of Nyasha and one Lovemore Hombarume who was held out to be the nephew of the seller of the property. He also testified as to how an Agreement of Sale was then drafted and that at the time of signing the agreement and paying the deposit, he met the fraudster, who produced a driver's licence and passport all bearing the names of the first defendant. He inspected the documents together with the third defendant, Nyasha, and a friend he had brought along to witness the transaction.

All four of them did not notice anything irregular with the identity documents and were duped into believing that they were dealing with the first defendant, the owner of the property.

He further testified as to how he paid the balance of the purchase price and transfer fees for the property.

Again, in my view, the witness gave his evidence well. I gained the impression that he is honest and reliable.

He found it difficult, on his observations, to categorically hold that the defendants were conniving with the fraudster. He only assumed there may have been connivance between the first defendant and the fraudster but had no basis for making this assumption save the fact that he and Nyasha freely viewed the first defendant's property in the presence of his maid and gardener.

After leading these two witnesses, the plaintiff closed its case.

At the close of the evidence, the plaintiff withdrew his claim against the first defendant, tendering costs. It is therefore unnecessary that I deal with the evidence led by the first defendant in his defence.

The second and third defendants applied for absolution from the instance arguing that the plaintiff had not established a prima facie case that the defendants had misrepresented to him any fact.

I granted the application and indicated that my reasons would follow. I now set them out.

Before I proceed to deal with the application for absolution from the instance, there are two issues that I wish to remark on. These relate to the standard of pleadings exhibited in this matter and the need for legal practitioners at pre-trial conferences to assess the cogency of the evidence they intend to adduce at the trial of the matter.

The purpose of pleadings is not only to inform the other party in concise terms of the precise nature of the claim they have to meet, but, pleadings also serve to identify the branch of the law under which the claim has been brought. Different branches of the law require different matters to be specifically pleaded for a claim to be sustainable under that action.

Thus, for example, in a divorce action, the allegation of irretrievable breakdown is imperative while in a delictual claim for bodily injury, fault has to be averred against the defendant.

This may appear trite but a number of matters coming before the courts seem to indicate that legal practitioners have abandoned the need to plead a cause of action by making the necessary averments to sustain such an action: see S Pilime v B Chisvo HH10-07.

In casu, the plaintiff's legal practitioner appears to have simply rehashed the instructions he had received from his client in the declaration without making an attempt to precisely and concisely lay out the cause of action and the averments necessary to sustain such. I gain this impression from the wording of the concluding paragraph of the declaration which is framed as follows:

“All the defendants were either conniving together or misrepresented facts to the Plaintiff in order to deprive the plaintiff of the said Stand and money.”

The defendants' legal practitioners did not fare any better in the matter.

Instead of seeking clarification of the claim and its basis by either a request for further particulars or an appropriate exception, the defendants were advised to file pleas to the merits which pleas read no better than the declaration as they seek to deny the statements made in the declaration (Mr Nhemwa was not representing the second defendant at the time the pleadings were exchanged).

In my view, the exchange of pleadings between the parties is what may pass as conversation at a social gathering between disagreeing parties but bears not the slightest resemblance to pleadings in a court of law.

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.

The duty of a legal practitioner to precisely and concisely draw up pleading is closely related to the duty to establish and assess the evidence necessary to sustain each important averment made in the pleadings.

This should be done before or at the pretrial conference stage when the summaries of evidence are drawn up. Gaps in the evidence should be identified at this stage and brought to the attention of the party who may thus avoid the loss occasioned by a dismissal or absolution from the instance at the close of the plaintiff's case at trial.

All too often, legal practitioners are heard in a pre-trial conference to whisper to their clients asking how many witnesses they will call at the trial of the matter. Preparedness is the hallmark of a good legal practitioner. It is no use for a legal practitioner to concede, at trial, that his client does not have sufficient evidence when pleading that the matter should not be dismissed but that absolution from the instance be granted.

It is my view, that, had the plaintiff's legal practitioner in this matter assessed the cogency of the evidence that he had, he may have avoided a trial in this matter and legal costs for his client as none of the plaintiff's witnesses testified as to a misrepresentation made to them, and, the second witness in particular, denied that there was any connivance by the defendants to deprive the plaintiff of his money. His testimony was to the effect, that, because the second and third defendants were professionals, they should have guarded against the loss. This, in my view, suggests a claim based on negligence rather than on misrepresentation or fraud.

Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.

In view of the evidence adduced on behalf of the plaintiff, it was clear, at the close of the plaintiff's case, that there was no need to call upon the defendants to testify.

Even if I were to be overly generous and hold that the plaintiff had pleaded misrepresentation as a cause of action against the defendants, the evidence adduced by the plaintiff revealed that it was the fraudster who misrepresented to both the plaintiff and to the defendants that he was the registered owner of the property that he was selling.

It is this fraud that induced the sale between the parties.

The fraudster went to the extent of producing cleverly forged documents to support his fraud. The defendants did not assist him in this fraud and were also the victims of the fraud.

In any event, it was not specifically pleaded in the papers whether the alleged fraud by the defendants was innocent, negligent, or fraudulent.

Having alleged that he was induced into the contract by misrepresentation, the plaintiff proceeded to pray for transfer of the property into his name.

I am not clear how the remedy of specific performance was pleaded after the alleged misrepresentation.

Passing of Ownership, Proof of Title, Personal Rights and Cancellation or Diminution of Real Rights re: Immovable Property

The plaintiff is resident in the United Kingdom.

Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.

The property, whose description and location in Ruwa was known to the second defendant's property negotiator, “Nyasha”, is owned by the first defendant who holds freehold title to the land.

It is common cause that the instructions to sell the property did not emanate from the first defendant but from a fraudster, still at large, who was making out to be the first defendant and not only had with him a forged copy of the Deed of Transfer in respect of the property bearing the first defendant's name, but also a driver's licence and a passport with the names of the first defendant but bearing his picture.

It is further common cause that the two plaintiff's relatives viewed the property in the company of Nyasha, the property negotiator, and were satisfied with its condition in relation to the asking price. They accordingly, but separately, recommended to the plaintiff that he purchases the property.

An Agreement of Sale was duly drawn up and the plaintiff cautioned that he wanted the transaction to be supervised by a lawyer. Debut the third respondent in her capacity as a conveyancer and one who was well known to the second defendant and had done work for the second defendant previously.

On the date that the Agreement of Sale was signed, the fraudster, still making out to be the first defendant, attended at the third defendant's offices and not only did he sign the agreement as seller and first defendant, he also collected the deposit of the purchase price that had been paid in the sum of 8,000 pounds sterling. It is at this meeting that the fraudster exhibited the identity documents that he used to commit the fraud. The documents were inspected by all who were present, including the plaintiff's representative, who did not find anything amiss with the documentation.

A further payment in the sum of 6,000 pounds sterling was made some months thereafter.

Soon after the payment of the balance of the purchase price, transfer fees were called for in anticipation of transferring the property into the plaintiff's name. It was at this stage that the fraud was discovered as the Registrar of Deeds raised issues with the authenticity of the Deed of Transfer tendered with the transfer papers and advised that the matter be reported to the police.

Efforts to trace the purported seller of the property to obtain vacant possession of the property by the plaintiff's agent were in vain.

On 21 April 2004, the plaintiff issued summons claiming against all defendants, an order compelling them to transfer the property in dispute to him. In the alternative, the plaintiff sought an order against all the defendants jointly and severally for the payment of damages to be calculated as the purchase price of a similar stand in Ruwa at the time of payment less the Zimbabwe Dollar equivalent of 14,000 pounds sterling, $2,7 million, and interest a temporae morae on the two amounts at the prescribed rates.

The action was defended by all three defendants.

The first defendant denied that he ever put up his property for sale or connived with the fraudster to defraud the plaintiff. The second defendant denied conniving with the fraudster or misrepresenting any facts to the plaintiff. The third defendant also denied conniving with the fraudster or misrepresenting any facts to the plaintiff.

At the pre-trial conference of the matter, four issues were identified for trial. These were;

(i) Whether or not there was misrepresentation on the part of the defendants that led the plaintiff to lose his money;

(ii) The quantum of damages;

(iii) From whom such damages were recoverable; and

(iv) Who should bear costs of suit.

At the trial of the matter, the plaintiff called Simbarashe Sagonda and Thomas Makwangudze as witnesses. The testimonies of the two witnesses were to narrate what is essentially common cause in this trial.

It was Simbarashe Sagonda's testimony, that, when he went to view the property in the company of the property negotiator from the second defendant, Nyasha, they were shown around by a lady of middle age. Also present were a gardener who opened the gate for them, a maid who was busying herself in the kitchen, and some other young man. From the visit, he got the impression that Nyasha had been to the property before and knew all the faults and uncompleted details in the structure.

The witness gave his evidence well and I have no reason to disbelieve him.

As indicated above, his testimony was a narration of facts that are not in dispute as between the parties.

Thomas Makwangudze also testified as to how he went to view the property in the company of Nyasha and one Lovemore Hombarume who was held out to be the nephew of the seller of the property. He also testified as to how an Agreement of Sale was then drafted and that at the time of signing the agreement and paying the deposit, he met the fraudster, who produced a driver's licence and passport all bearing the names of the first defendant. He inspected the documents together with the third defendant, Nyasha, and a friend he had brought along to witness the transaction.

All four of them did not notice anything irregular with the identity documents and were duped into believing that they were dealing with the first defendant, the owner of the property.

He further testified as to how he paid the balance of the purchase price and transfer fees for the property.

Again, in my view, the witness gave his evidence well. I gained the impression that he is honest and reliable.

He found it difficult, on his observations, to categorically hold that the defendants were conniving with the fraudster. He only assumed there may have been connivance between the first defendant and the fraudster but had no basis for making this assumption save the fact that he and Nyasha freely viewed the first defendant's property in the presence of his maid and gardener.

After leading these two witnesses, the plaintiff closed its case.

At the close of the evidence, the plaintiff withdrew his claim against the first defendant, tendering costs. It is therefore unnecessary that I deal with the evidence led by the first defendant in his defence.

The second and third defendants applied for absolution from the instance arguing that the plaintiff had not established a prima facie case that the defendants had misrepresented to him any fact.

I granted the application and indicated that my reasons would follow. I now set them out.

Before I proceed to deal with the application for absolution from the instance, there are two issues that I wish to remark on. These relate to the standard of pleadings exhibited in this matter and the need for legal practitioners at pre-trial conferences to assess the cogency of the evidence they intend to adduce at the trial of the matter.

The purpose of pleadings is not only to inform the other party in concise terms of the precise nature of the claim they have to meet, but, pleadings also serve to identify the branch of the law under which the claim has been brought. Different branches of the law require different matters to be specifically pleaded for a claim to be sustainable under that action.

Thus, for example, in a divorce action, the allegation of irretrievable breakdown is imperative while in a delictual claim for bodily injury, fault has to be averred against the defendant.

This may appear trite but a number of matters coming before the courts seem to indicate that legal practitioners have abandoned the need to plead a cause of action by making the necessary averments to sustain such an action: see S Pilime v B Chisvo HH10-07.

In casu, the plaintiff's legal practitioner appears to have simply rehashed the instructions he had received from his client in the declaration without making an attempt to precisely and concisely lay out the cause of action and the averments necessary to sustain such. I gain this impression from the wording of the concluding paragraph of the declaration which is framed as follows:

“All the defendants were either conniving together or misrepresented facts to the Plaintiff in order to deprive the plaintiff of the said Stand and money.”

The defendants' legal practitioners did not fare any better in the matter.

Instead of seeking clarification of the claim and its basis by either a request for further particulars or an appropriate exception, the defendants were advised to file pleas to the merits which pleas read no better than the declaration as they seek to deny the statements made in the declaration (Mr Nhemwa was not representing the second defendant at the time the pleadings were exchanged).

In my view, the exchange of pleadings between the parties is what may pass as conversation at a social gathering between disagreeing parties but bears not the slightest resemblance to pleadings in a court of law.

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.

The duty of a legal practitioner to precisely and concisely draw up pleading is closely related to the duty to establish and assess the evidence necessary to sustain each important averment made in the pleadings.

This should be done before or at the pretrial conference stage when the summaries of evidence are drawn up. Gaps in the evidence should be identified at this stage and brought to the attention of the party who may thus avoid the loss occasioned by a dismissal or absolution from the instance at the close of the plaintiff's case at trial.

All too often, legal practitioners are heard in a pre-trial conference to whisper to their clients asking how many witnesses they will call at the trial of the matter. Preparedness is the hallmark of a good legal practitioner. It is no use for a legal practitioner to concede, at trial, that his client does not have sufficient evidence when pleading that the matter should not be dismissed but that absolution from the instance be granted.

It is my view, that, had the plaintiff's legal practitioner in this matter assessed the cogency of the evidence that he had, he may have avoided a trial in this matter and legal costs for his client as none of the plaintiff's witnesses testified as to a misrepresentation made to them, and, the second witness in particular, denied that there was any connivance by the defendants to deprive the plaintiff of his money. His testimony was to the effect, that, because the second and third defendants were professionals, they should have guarded against the loss. This, in my view, suggests a claim based on negligence rather than on misrepresentation or fraud.

Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.

In view of the evidence adduced on behalf of the plaintiff, it was clear, at the close of the plaintiff's case, that there was no need to call upon the defendants to testify.

Even if I were to be overly generous and hold that the plaintiff had pleaded misrepresentation as a cause of action against the defendants, the evidence adduced by the plaintiff revealed that it was the fraudster who misrepresented to both the plaintiff and to the defendants that he was the registered owner of the property that he was selling.

It is this fraud that induced the sale between the parties.

The fraudster went to the extent of producing cleverly forged documents to support his fraud. The defendants did not assist him in this fraud and were also the victims of the fraud.

In any event, it was not specifically pleaded in the papers whether the alleged fraud by the defendants was innocent, negligent, or fraudulent.

Having alleged that he was induced into the contract by misrepresentation, the plaintiff proceeded to pray for transfer of the property into his name.

I am not clear how the remedy of specific performance was pleaded after the alleged misrepresentation.

Passing of Ownership, Proof of Title and Jus in re Propria re: Implied Lawful Right of Ownership

The plaintiff is resident in the United Kingdom.

Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.

The property, whose description and location in Ruwa was known to the second defendant's property negotiator, “Nyasha”, is owned by the first defendant who holds freehold title to the land.

It is common cause that the instructions to sell the property did not emanate from the first defendant but from a fraudster, still at large, who was making out to be the first defendant and not only had with him a forged copy of the Deed of Transfer in respect of the property bearing the first defendant's name, but also a driver's licence and a passport with the names of the first defendant but bearing his picture.

It is further common cause that the two plaintiff's relatives viewed the property in the company of Nyasha, the property negotiator, and were satisfied with its condition in relation to the asking price. They accordingly, but separately, recommended to the plaintiff that he purchases the property.

An Agreement of Sale was duly drawn up and the plaintiff cautioned that he wanted the transaction to be supervised by a lawyer. Debut the third respondent in her capacity as a conveyancer and one who was well known to the second defendant and had done work for the second defendant previously.

On the date that the Agreement of Sale was signed, the fraudster, still making out to be the first defendant, attended at the third defendant's offices and not only did he sign the agreement as seller and first defendant, he also collected the deposit of the purchase price that had been paid in the sum of 8,000 pounds sterling. It is at this meeting that the fraudster exhibited the identity documents that he used to commit the fraud. The documents were inspected by all who were present, including the plaintiff's representative, who did not find anything amiss with the documentation.

A further payment in the sum of 6,000 pounds sterling was made some months thereafter.

Soon after the payment of the balance of the purchase price, transfer fees were called for in anticipation of transferring the property into the plaintiff's name. It was at this stage that the fraud was discovered as the Registrar of Deeds raised issues with the authenticity of the Deed of Transfer tendered with the transfer papers and advised that the matter be reported to the police.

Efforts to trace the purported seller of the property to obtain vacant possession of the property by the plaintiff's agent were in vain.

On 21 April 2004, the plaintiff issued summons claiming against all defendants, an order compelling them to transfer the property in dispute to him. In the alternative, the plaintiff sought an order against all the defendants jointly and severally for the payment of damages to be calculated as the purchase price of a similar stand in Ruwa at the time of payment less the Zimbabwe Dollar equivalent of 14,000 pounds sterling, $2,7 million, and interest a temporae morae on the two amounts at the prescribed rates.

The action was defended by all three defendants.

The first defendant denied that he ever put up his property for sale or connived with the fraudster to defraud the plaintiff. The second defendant denied conniving with the fraudster or misrepresenting any facts to the plaintiff. The third defendant also denied conniving with the fraudster or misrepresenting any facts to the plaintiff.

At the pre-trial conference of the matter, four issues were identified for trial. These were;

(i) Whether or not there was misrepresentation on the part of the defendants that led the plaintiff to lose his money;

(ii) The quantum of damages;

(iii) From whom such damages were recoverable; and

(iv) Who should bear costs of suit.

At the trial of the matter, the plaintiff called Simbarashe Sagonda and Thomas Makwangudze as witnesses. The testimonies of the two witnesses were to narrate what is essentially common cause in this trial.

It was Simbarashe Sagonda's testimony, that, when he went to view the property in the company of the property negotiator from the second defendant, Nyasha, they were shown around by a lady of middle age. Also present were a gardener who opened the gate for them, a maid who was busying herself in the kitchen, and some other young man. From the visit, he got the impression that Nyasha had been to the property before and knew all the faults and uncompleted details in the structure.

The witness gave his evidence well and I have no reason to disbelieve him.

As indicated above, his testimony was a narration of facts that are not in dispute as between the parties.

Thomas Makwangudze also testified as to how he went to view the property in the company of Nyasha and one Lovemore Hombarume who was held out to be the nephew of the seller of the property. He also testified as to how an Agreement of Sale was then drafted and that at the time of signing the agreement and paying the deposit, he met the fraudster, who produced a driver's licence and passport all bearing the names of the first defendant. He inspected the documents together with the third defendant, Nyasha, and a friend he had brought along to witness the transaction.

All four of them did not notice anything irregular with the identity documents and were duped into believing that they were dealing with the first defendant, the owner of the property.

He further testified as to how he paid the balance of the purchase price and transfer fees for the property.

Again, in my view, the witness gave his evidence well. I gained the impression that he is honest and reliable.

He found it difficult, on his observations, to categorically hold that the defendants were conniving with the fraudster. He only assumed there may have been connivance between the first defendant and the fraudster but had no basis for making this assumption save the fact that he and Nyasha freely viewed the first defendant's property in the presence of his maid and gardener.

After leading these two witnesses, the plaintiff closed its case.

At the close of the evidence, the plaintiff withdrew his claim against the first defendant, tendering costs. It is therefore unnecessary that I deal with the evidence led by the first defendant in his defence.

The second and third defendants applied for absolution from the instance arguing that the plaintiff had not established a prima facie case that the defendants had misrepresented to him any fact.

I granted the application and indicated that my reasons would follow. I now set them out.

Before I proceed to deal with the application for absolution from the instance, there are two issues that I wish to remark on. These relate to the standard of pleadings exhibited in this matter and the need for legal practitioners at pre-trial conferences to assess the cogency of the evidence they intend to adduce at the trial of the matter.

The purpose of pleadings is not only to inform the other party in concise terms of the precise nature of the claim they have to meet, but, pleadings also serve to identify the branch of the law under which the claim has been brought. Different branches of the law require different matters to be specifically pleaded for a claim to be sustainable under that action.

Thus, for example, in a divorce action, the allegation of irretrievable breakdown is imperative while in a delictual claim for bodily injury, fault has to be averred against the defendant.

This may appear trite but a number of matters coming before the courts seem to indicate that legal practitioners have abandoned the need to plead a cause of action by making the necessary averments to sustain such an action: see S Pilime v B Chisvo HH10-07.

In casu, the plaintiff's legal practitioner appears to have simply rehashed the instructions he had received from his client in the declaration without making an attempt to precisely and concisely lay out the cause of action and the averments necessary to sustain such. I gain this impression from the wording of the concluding paragraph of the declaration which is framed as follows:

“All the defendants were either conniving together or misrepresented facts to the Plaintiff in order to deprive the plaintiff of the said Stand and money.”

The defendants' legal practitioners did not fare any better in the matter.

Instead of seeking clarification of the claim and its basis by either a request for further particulars or an appropriate exception, the defendants were advised to file pleas to the merits which pleas read no better than the declaration as they seek to deny the statements made in the declaration (Mr Nhemwa was not representing the second defendant at the time the pleadings were exchanged).

In my view, the exchange of pleadings between the parties is what may pass as conversation at a social gathering between disagreeing parties but bears not the slightest resemblance to pleadings in a court of law.

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.

The duty of a legal practitioner to precisely and concisely draw up pleading is closely related to the duty to establish and assess the evidence necessary to sustain each important averment made in the pleadings.

This should be done before or at the pretrial conference stage when the summaries of evidence are drawn up. Gaps in the evidence should be identified at this stage and brought to the attention of the party who may thus avoid the loss occasioned by a dismissal or absolution from the instance at the close of the plaintiff's case at trial.

All too often, legal practitioners are heard in a pre-trial conference to whisper to their clients asking how many witnesses they will call at the trial of the matter. Preparedness is the hallmark of a good legal practitioner. It is no use for a legal practitioner to concede, at trial, that his client does not have sufficient evidence when pleading that the matter should not be dismissed but that absolution from the instance be granted.

It is my view, that, had the plaintiff's legal practitioner in this matter assessed the cogency of the evidence that he had, he may have avoided a trial in this matter and legal costs for his client as none of the plaintiff's witnesses testified as to a misrepresentation made to them, and, the second witness in particular, denied that there was any connivance by the defendants to deprive the plaintiff of his money. His testimony was to the effect, that, because the second and third defendants were professionals, they should have guarded against the loss. This, in my view, suggests a claim based on negligence rather than on misrepresentation or fraud.

Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.

In view of the evidence adduced on behalf of the plaintiff, it was clear, at the close of the plaintiff's case, that there was no need to call upon the defendants to testify.

Even if I were to be overly generous and hold that the plaintiff had pleaded misrepresentation as a cause of action against the defendants, the evidence adduced by the plaintiff revealed that it was the fraudster who misrepresented to both the plaintiff and to the defendants that he was the registered owner of the property that he was selling.

It is this fraud that induced the sale between the parties.

The fraudster went to the extent of producing cleverly forged documents to support his fraud. The defendants did not assist him in this fraud and were also the victims of the fraud.

In any event, it was not specifically pleaded in the papers whether the alleged fraud by the defendants was innocent, negligent, or fraudulent.

Having alleged that he was induced into the contract by misrepresentation, the plaintiff proceeded to pray for transfer of the property into his name.

I am not clear how the remedy of specific performance was pleaded after the alleged misrepresentation.

Absolution from the Instance, Evidential Deficit and the Concept of Prima Facie

The plaintiff is resident in the United Kingdom.

Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.

The property, whose description and location in Ruwa was known to the second defendant's property negotiator, “Nyasha”, is owned by the first defendant who holds freehold title to the land.

It is common cause that the instructions to sell the property did not emanate from the first defendant but from a fraudster, still at large, who was making out to be the first defendant and not only had with him a forged copy of the Deed of Transfer in respect of the property bearing the first defendant's name, but also a driver's licence and a passport with the names of the first defendant but bearing his picture.

It is further common cause that the two plaintiff's relatives viewed the property in the company of Nyasha, the property negotiator, and were satisfied with its condition in relation to the asking price. They accordingly, but separately, recommended to the plaintiff that he purchases the property.

An Agreement of Sale was duly drawn up and the plaintiff cautioned that he wanted the transaction to be supervised by a lawyer. Debut the third respondent in her capacity as a conveyancer and one who was well known to the second defendant and had done work for the second defendant previously.

On the date that the Agreement of Sale was signed, the fraudster, still making out to be the first defendant, attended at the third defendant's offices and not only did he sign the agreement as seller and first defendant, he also collected the deposit of the purchase price that had been paid in the sum of 8,000 pounds sterling. It is at this meeting that the fraudster exhibited the identity documents that he used to commit the fraud. The documents were inspected by all who were present, including the plaintiff's representative, who did not find anything amiss with the documentation.

A further payment in the sum of 6,000 pounds sterling was made some months thereafter.

Soon after the payment of the balance of the purchase price, transfer fees were called for in anticipation of transferring the property into the plaintiff's name. It was at this stage that the fraud was discovered as the Registrar of Deeds raised issues with the authenticity of the Deed of Transfer tendered with the transfer papers and advised that the matter be reported to the police.

Efforts to trace the purported seller of the property to obtain vacant possession of the property by the plaintiff's agent were in vain.

On 21 April 2004, the plaintiff issued summons claiming against all defendants, an order compelling them to transfer the property in dispute to him. In the alternative, the plaintiff sought an order against all the defendants jointly and severally for the payment of damages to be calculated as the purchase price of a similar stand in Ruwa at the time of payment less the Zimbabwe Dollar equivalent of 14,000 pounds sterling, $2,7 million, and interest a temporae morae on the two amounts at the prescribed rates.

The action was defended by all three defendants.

The first defendant denied that he ever put up his property for sale or connived with the fraudster to defraud the plaintiff. The second defendant denied conniving with the fraudster or misrepresenting any facts to the plaintiff. The third defendant also denied conniving with the fraudster or misrepresenting any facts to the plaintiff.

At the pre-trial conference of the matter, four issues were identified for trial. These were;

(i) Whether or not there was misrepresentation on the part of the defendants that led the plaintiff to lose his money;

(ii) The quantum of damages;

(iii) From whom such damages were recoverable; and

(iv) Who should bear costs of suit.

At the trial of the matter, the plaintiff called Simbarashe Sagonda and Thomas Makwangudze as witnesses. The testimonies of the two witnesses were to narrate what is essentially common cause in this trial.

It was Simbarashe Sagonda's testimony, that, when he went to view the property in the company of the property negotiator from the second defendant, Nyasha, they were shown around by a lady of middle age. Also present were a gardener who opened the gate for them, a maid who was busying herself in the kitchen, and some other young man. From the visit, he got the impression that Nyasha had been to the property before and knew all the faults and uncompleted details in the structure.

The witness gave his evidence well and I have no reason to disbelieve him.

As indicated above, his testimony was a narration of facts that are not in dispute as between the parties.

Thomas Makwangudze also testified as to how he went to view the property in the company of Nyasha and one Lovemore Hombarume who was held out to be the nephew of the seller of the property. He also testified as to how an Agreement of Sale was then drafted and that at the time of signing the agreement and paying the deposit, he met the fraudster, who produced a driver's licence and passport all bearing the names of the first defendant. He inspected the documents together with the third defendant, Nyasha, and a friend he had brought along to witness the transaction.

All four of them did not notice anything irregular with the identity documents and were duped into believing that they were dealing with the first defendant, the owner of the property.

He further testified as to how he paid the balance of the purchase price and transfer fees for the property.

Again, in my view, the witness gave his evidence well. I gained the impression that he is honest and reliable.

He found it difficult, on his observations, to categorically hold that the defendants were conniving with the fraudster. He only assumed there may have been connivance between the first defendant and the fraudster but had no basis for making this assumption save the fact that he and Nyasha freely viewed the first defendant's property in the presence of his maid and gardener.

After leading these two witnesses, the plaintiff closed its case.

At the close of the evidence, the plaintiff withdrew his claim against the first defendant, tendering costs. It is therefore unnecessary that I deal with the evidence led by the first defendant in his defence.

The second and third defendants applied for absolution from the instance arguing that the plaintiff had not established a prima facie case that the defendants had misrepresented to him any fact.

I granted the application and indicated that my reasons would follow. I now set them out.

Before I proceed to deal with the application for absolution from the instance, there are two issues that I wish to remark on. These relate to the standard of pleadings exhibited in this matter and the need for legal practitioners at pre-trial conferences to assess the cogency of the evidence they intend to adduce at the trial of the matter.

The purpose of pleadings is not only to inform the other party in concise terms of the precise nature of the claim they have to meet, but, pleadings also serve to identify the branch of the law under which the claim has been brought. Different branches of the law require different matters to be specifically pleaded for a claim to be sustainable under that action.

Thus, for example, in a divorce action, the allegation of irretrievable breakdown is imperative while in a delictual claim for bodily injury, fault has to be averred against the defendant.

This may appear trite but a number of matters coming before the courts seem to indicate that legal practitioners have abandoned the need to plead a cause of action by making the necessary averments to sustain such an action: see S Pilime v B Chisvo HH10-07.

In casu, the plaintiff's legal practitioner appears to have simply rehashed the instructions he had received from his client in the declaration without making an attempt to precisely and concisely lay out the cause of action and the averments necessary to sustain such. I gain this impression from the wording of the concluding paragraph of the declaration which is framed as follows:

“All the defendants were either conniving together or misrepresented facts to the Plaintiff in order to deprive the plaintiff of the said Stand and money.”

The defendants' legal practitioners did not fare any better in the matter.

Instead of seeking clarification of the claim and its basis by either a request for further particulars or an appropriate exception, the defendants were advised to file pleas to the merits which pleas read no better than the declaration as they seek to deny the statements made in the declaration (Mr Nhemwa was not representing the second defendant at the time the pleadings were exchanged).

In my view, the exchange of pleadings between the parties is what may pass as conversation at a social gathering between disagreeing parties but bears not the slightest resemblance to pleadings in a court of law.

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.

The duty of a legal practitioner to precisely and concisely draw up pleading is closely related to the duty to establish and assess the evidence necessary to sustain each important averment made in the pleadings.

This should be done before or at the pretrial conference stage when the summaries of evidence are drawn up. Gaps in the evidence should be identified at this stage and brought to the attention of the party who may thus avoid the loss occasioned by a dismissal or absolution from the instance at the close of the plaintiff's case at trial.

All too often, legal practitioners are heard in a pre-trial conference to whisper to their clients asking how many witnesses they will call at the trial of the matter. Preparedness is the hallmark of a good legal practitioner. It is no use for a legal practitioner to concede, at trial, that his client does not have sufficient evidence when pleading that the matter should not be dismissed but that absolution from the instance be granted.

It is my view, that, had the plaintiff's legal practitioner in this matter assessed the cogency of the evidence that he had, he may have avoided a trial in this matter and legal costs for his client as none of the plaintiff's witnesses testified as to a misrepresentation made to them, and, the second witness in particular, denied that there was any connivance by the defendants to deprive the plaintiff of his money. His testimony was to the effect, that, because the second and third defendants were professionals, they should have guarded against the loss. This, in my view, suggests a claim based on negligence rather than on misrepresentation or fraud.

Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.

In view of the evidence adduced on behalf of the plaintiff, it was clear, at the close of the plaintiff's case, that there was no need to call upon the defendants to testify.

Even if I were to be overly generous and hold that the plaintiff had pleaded misrepresentation as a cause of action against the defendants, the evidence adduced by the plaintiff revealed that it was the fraudster who misrepresented to both the plaintiff and to the defendants that he was the registered owner of the property that he was selling.

It is this fraud that induced the sale between the parties.

The fraudster went to the extent of producing cleverly forged documents to support his fraud. The defendants did not assist him in this fraud and were also the victims of the fraud.

In any event, it was not specifically pleaded in the papers whether the alleged fraud by the defendants was innocent, negligent, or fraudulent.

Having alleged that he was induced into the contract by misrepresentation, the plaintiff proceeded to pray for transfer of the property into his name.

I am not clear how the remedy of specific performance was pleaded after the alleged misrepresentation.

I may mention, in passing, that, the Rules require that particulars of any misrepresentation be stated in the pleading: see Rule 103 of the High Court Rules, 1972.

The Rule is often overlooked in drafting summons and declarations.

It is on the basis of the above that I granted absolution from the instance at the close of the plaintiff's case.

Onus, Burden and Standard of Proof and Principle that He Who Alleges Must Prove re: Approach

The plaintiff is resident in the United Kingdom.

Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.

The property, whose description and location in Ruwa was known to the second defendant's property negotiator, “Nyasha”, is owned by the first defendant who holds freehold title to the land.

It is common cause that the instructions to sell the property did not emanate from the first defendant but from a fraudster, still at large, who was making out to be the first defendant and not only had with him a forged copy of the Deed of Transfer in respect of the property bearing the first defendant's name, but also a driver's licence and a passport with the names of the first defendant but bearing his picture.

It is further common cause that the two plaintiff's relatives viewed the property in the company of Nyasha, the property negotiator, and were satisfied with its condition in relation to the asking price. They accordingly, but separately, recommended to the plaintiff that he purchases the property.

An Agreement of Sale was duly drawn up and the plaintiff cautioned that he wanted the transaction to be supervised by a lawyer. Debut the third respondent in her capacity as a conveyancer and one who was well known to the second defendant and had done work for the second defendant previously.

On the date that the Agreement of Sale was signed, the fraudster, still making out to be the first defendant, attended at the third defendant's offices and not only did he sign the agreement as seller and first defendant, he also collected the deposit of the purchase price that had been paid in the sum of 8,000 pounds sterling. It is at this meeting that the fraudster exhibited the identity documents that he used to commit the fraud. The documents were inspected by all who were present, including the plaintiff's representative, who did not find anything amiss with the documentation.

A further payment in the sum of 6,000 pounds sterling was made some months thereafter.

Soon after the payment of the balance of the purchase price, transfer fees were called for in anticipation of transferring the property into the plaintiff's name. It was at this stage that the fraud was discovered as the Registrar of Deeds raised issues with the authenticity of the Deed of Transfer tendered with the transfer papers and advised that the matter be reported to the police.

Efforts to trace the purported seller of the property to obtain vacant possession of the property by the plaintiff's agent were in vain.

On 21 April 2004, the plaintiff issued summons claiming against all defendants, an order compelling them to transfer the property in dispute to him. In the alternative, the plaintiff sought an order against all the defendants jointly and severally for the payment of damages to be calculated as the purchase price of a similar stand in Ruwa at the time of payment less the Zimbabwe Dollar equivalent of 14,000 pounds sterling, $2,7 million, and interest a temporae morae on the two amounts at the prescribed rates.

The action was defended by all three defendants.

The first defendant denied that he ever put up his property for sale or connived with the fraudster to defraud the plaintiff. The second defendant denied conniving with the fraudster or misrepresenting any facts to the plaintiff. The third defendant also denied conniving with the fraudster or misrepresenting any facts to the plaintiff.

At the pre-trial conference of the matter, four issues were identified for trial. These were;

(i) Whether or not there was misrepresentation on the part of the defendants that led the plaintiff to lose his money;

(ii) The quantum of damages;

(iii) From whom such damages were recoverable; and

(iv) Who should bear costs of suit.

At the trial of the matter, the plaintiff called Simbarashe Sagonda and Thomas Makwangudze as witnesses. The testimonies of the two witnesses were to narrate what is essentially common cause in this trial.

It was Simbarashe Sagonda's testimony, that, when he went to view the property in the company of the property negotiator from the second defendant, Nyasha, they were shown around by a lady of middle age. Also present were a gardener who opened the gate for them, a maid who was busying herself in the kitchen, and some other young man. From the visit, he got the impression that Nyasha had been to the property before and knew all the faults and uncompleted details in the structure.

The witness gave his evidence well and I have no reason to disbelieve him.

As indicated above, his testimony was a narration of facts that are not in dispute as between the parties.

Thomas Makwangudze also testified as to how he went to view the property in the company of Nyasha and one Lovemore Hombarume who was held out to be the nephew of the seller of the property. He also testified as to how an Agreement of Sale was then drafted and that at the time of signing the agreement and paying the deposit, he met the fraudster, who produced a driver's licence and passport all bearing the names of the first defendant. He inspected the documents together with the third defendant, Nyasha, and a friend he had brought along to witness the transaction.

All four of them did not notice anything irregular with the identity documents and were duped into believing that they were dealing with the first defendant, the owner of the property.

He further testified as to how he paid the balance of the purchase price and transfer fees for the property.

Again, in my view, the witness gave his evidence well. I gained the impression that he is honest and reliable.

He found it difficult, on his observations, to categorically hold that the defendants were conniving with the fraudster. He only assumed there may have been connivance between the first defendant and the fraudster but had no basis for making this assumption save the fact that he and Nyasha freely viewed the first defendant's property in the presence of his maid and gardener.

After leading these two witnesses, the plaintiff closed its case.

At the close of the evidence, the plaintiff withdrew his claim against the first defendant, tendering costs. It is therefore unnecessary that I deal with the evidence led by the first defendant in his defence.

The second and third defendants applied for absolution from the instance arguing that the plaintiff had not established a prima facie case that the defendants had misrepresented to him any fact.

I granted the application and indicated that my reasons would follow. I now set them out.

Before I proceed to deal with the application for absolution from the instance, there are two issues that I wish to remark on. These relate to the standard of pleadings exhibited in this matter and the need for legal practitioners at pre-trial conferences to assess the cogency of the evidence they intend to adduce at the trial of the matter.

The purpose of pleadings is not only to inform the other party in concise terms of the precise nature of the claim they have to meet, but, pleadings also serve to identify the branch of the law under which the claim has been brought. Different branches of the law require different matters to be specifically pleaded for a claim to be sustainable under that action.

Thus, for example, in a divorce action, the allegation of irretrievable breakdown is imperative while in a delictual claim for bodily injury, fault has to be averred against the defendant.

This may appear trite but a number of matters coming before the courts seem to indicate that legal practitioners have abandoned the need to plead a cause of action by making the necessary averments to sustain such an action: see S Pilime v B Chisvo HH10-07.

In casu, the plaintiff's legal practitioner appears to have simply rehashed the instructions he had received from his client in the declaration without making an attempt to precisely and concisely lay out the cause of action and the averments necessary to sustain such. I gain this impression from the wording of the concluding paragraph of the declaration which is framed as follows:

“All the defendants were either conniving together or misrepresented facts to the Plaintiff in order to deprive the plaintiff of the said Stand and money.”

The defendants' legal practitioners did not fare any better in the matter.

Instead of seeking clarification of the claim and its basis by either a request for further particulars or an appropriate exception, the defendants were advised to file pleas to the merits which pleas read no better than the declaration as they seek to deny the statements made in the declaration (Mr Nhemwa was not representing the second defendant at the time the pleadings were exchanged).

In my view, the exchange of pleadings between the parties is what may pass as conversation at a social gathering between disagreeing parties but bears not the slightest resemblance to pleadings in a court of law.

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.

The duty of a legal practitioner to precisely and concisely draw up pleading is closely related to the duty to establish and assess the evidence necessary to sustain each important averment made in the pleadings.

This should be done before or at the pretrial conference stage when the summaries of evidence are drawn up. Gaps in the evidence should be identified at this stage and brought to the attention of the party who may thus avoid the loss occasioned by a dismissal or absolution from the instance at the close of the plaintiff's case at trial.

All too often, legal practitioners are heard in a pre-trial conference to whisper to their clients asking how many witnesses they will call at the trial of the matter. Preparedness is the hallmark of a good legal practitioner. It is no use for a legal practitioner to concede, at trial, that his client does not have sufficient evidence when pleading that the matter should not be dismissed but that absolution from the instance be granted.

It is my view, that, had the plaintiff's legal practitioner in this matter assessed the cogency of the evidence that he had, he may have avoided a trial in this matter and legal costs for his client as none of the plaintiff's witnesses testified as to a misrepresentation made to them, and, the second witness in particular, denied that there was any connivance by the defendants to deprive the plaintiff of his money. His testimony was to the effect, that, because the second and third defendants were professionals, they should have guarded against the loss. This, in my view, suggests a claim based on negligence rather than on misrepresentation or fraud.

Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.

In view of the evidence adduced on behalf of the plaintiff, it was clear, at the close of the plaintiff's case, that there was no need to call upon the defendants to testify.

Even if I were to be overly generous and hold that the plaintiff had pleaded misrepresentation as a cause of action against the defendants, the evidence adduced by the plaintiff revealed that it was the fraudster who misrepresented to both the plaintiff and to the defendants that he was the registered owner of the property that he was selling.

It is this fraud that induced the sale between the parties.

The fraudster went to the extent of producing cleverly forged documents to support his fraud. The defendants did not assist him in this fraud and were also the victims of the fraud.

In any event, it was not specifically pleaded in the papers whether the alleged fraud by the defendants was innocent, negligent, or fraudulent.

Having alleged that he was induced into the contract by misrepresentation, the plaintiff proceeded to pray for transfer of the property into his name.

I am not clear how the remedy of specific performance was pleaded after the alleged misrepresentation.

I may mention, in passing, that, the Rules require that particulars of any misrepresentation be stated in the pleading: see Rule 103 of the High Court Rules, 1972.

The Rule is often overlooked in drafting summons and declarations.

It is on the basis of the above that I granted absolution from the instance at the close of the plaintiff's case.

Law Portal
Zimbabwe

HH16-08 - CAVIN CHIFAMBA vs NORBERT MUTASA and GUARANTEE TRUST (PVT) LTD and M V CHIZODZA