MAKARAU JP: After hearing submissions from counsel
in this matter, we set aside the judgment of the lower court and remitted the
matter to the lower court for the filing of further pleadings and the
continuation thereafter of the trial of the matter. We indicated that our
reasons for so doing would follow. I now set them out.
BACKGROUND
The
appellant issued summons against the defendant on 15 October 2002, claiming the
delivery of 6 heifers or payment of the sum of $198 000-00 as representing the
value of the heifers. The appellant had the summons served upon one Tinashe
Madondo, an accounts manager at the defendant's stores. No appearance to defend
the action was filed and a default judgment was duly entered against the
defendant. In due course, the default judgment was rescinded.
After the application for rescission
of judgment was granted, no further pleadings were filed and exchanged between
the parties. In particular, no plea was filed by the defendant. No pre trial
conference was held as either as between the parties themselves or before a magistrate
in chambers as is required by the rules.
The
matter was set down for trial.
At
the trial of the matter, the appellant gave evidence. His testimony is recorded as being very brief
and was to the following effect: in June
1999, he went to the defendant with the intention of buying cattle. He met a Mr
Madondo, who is the managing director of the defendant. He was shown three
heifers and was advised as to the cost of each. He made out a cheques to
Lysdale Farm in the sum of $10 000-00 as deposit for six heifers. He was taken
to the defendant's son who in turn took him to Tinashe Madondo who receipted
the cheques. In March 2000, he paid the balance in the sum of $14 000-00. After
paying the purchase price in full, he approached Mr Madondo for the delivery of
the beasts. The delivery was not forthcoming, prompting him to issue process
out of the court at Masvingo.
The
appellant also referred to a receipt that was issued to him on 1 March 2000 by
the defendant. It recites the cause of the issuance of the receipt as "deposit
for heifers" and records the two amounts of $10 000-00 and $14 000-00
respectively.
After
leading evidence, the respondent applied for absolution from the instance,
arguing that the contract of sale alleged by the appellant was not clear and
that the testimony led by the appellant was at variance with the allegations he
had made in the summons. In particular, it was pointed out that in the summons
he alleged that the agreement of sale had been entered into in March 2000 when
in evidence he alleged that he paid the deposit in June 1999 and was issued
with a receipt. Issue was also made as to who was the correct defendant in the
matter.
After
considering the matter, the trial magistrate granted the application and absolved
the defendant from the instance. Aggrieved by that decision, the appellant
noted an appeal to this court.
In
his grounds of appeal, the appellant alleged that the trial magistrate had
erred in granting absolution in the face of an earlier ruling that there was an
agreement of sale between the parties although there had been no delivery of
the sold beasts. It is in the first ground of appeal that a procedural
irregularity attendant upon the trial of the matter is revealed in its true
proportions. In this ground of appeal, the appellant notes that the trial
magistrate "failed to appreciate that the
matter started off as an application for rescission of judgment that was
referred to trial for the parties to lead evidence on a specific factual detail
and that the application for rescission of judgment stood as the defendant's
plea and the notice of opposition as the plaintiff's replication."
THE ISSUES
In
my view, a number of issues arise from this procedural irregularity in the lower
court.
In
terms of Order 30 Rule 2 (a) and (b) of the Magistrates' Court Rules 1980, a
court determining an application for rescission of judgment may rescind or vary
the judgment in question and give directions as to the future conduct of the
action or application.
In
casu, the court determining the
application simply rescinded the default judgment without giving any directions
as to the future conduct of the action. Therefore, following the normal
sequencing of the steps that one has to take to bring a matter to trial, if the
plaintiff was desirous of proceeding with the matter, it was upon him to compel
the defendant to file his plea in the matter. This he did not do.
It
is trite that the magistrates' court has no inherent jurisdiction and cannot
fashion remedies or procedures outside the magistrates' court act and rules
even if the intention is to further interests of justice and expediency. The Magistrate Court Rules, 1980 shall apply
to all civil proceedings in the magistrates' court.
There is no discretion on the part of the court to depart from any rule as is
the case with the High Court which not only has inherent jurisdiction but has
specifically provided in its rules that a court or a judge may condone or
authorize departures from the application of the High Court Rules if it, he or she
is satisfied that the departure is required in the interests of justice.
It
is thus not clear on what legal basis the matter proceeded to trial without any
further pleadings having been exchanged between the parties. The matter could
not have proceeded to trial on the directions of the trial magistrate for the
application of rescission of judgment to stand as pleadings as magistrates do
not have the power to make such directions that will have the effect of
departing from the rules. It was in grave error that the matter proceeded to
trial as it did. In our view, the error resulted in a gross procedural
irregularity that cannot be cured other than through the order that we have
made.
The
error made by the lower court in setting this matter down for trial outside the
rules of the court tends to indicate that the lower court did not make
reference to its own rules in handling this matter. It is well worth
remembering that Magistrates Courts in this country are formal courts of law
that are bound by certain rules of procedure that have been found to regulate
the conduct of trial in that court so that justice may be done in a fair and
consistent manner. Departures from the
rules are not permissible. Informality in procedure cannot be condoned. The
court must conduct itself in terms of the rules at all times or risk having its
judgment set aside as being incurably un-procedural.
It
is also not clear how the trial court determined that the conclusion and the
terms of the contract of sale were in issue in the trial before him in the
absence of a plea from the defendant.
To
their credit, both counsel did concede the error in procedure attendant upon
the proceedings in the lower court and consented to the order that we made in
the matter. Due to the consent of counsel, it is not necessary that we discuss
the issue of the power that we, sitting as an appeal court, used to review the
proceedings in the lower court as we did in the absence of a formal application
requesting us to review the proceedings of the lower court.
It
is on the basis of the foregoing that we made the order that we did on the
turn.
Musakwa J
agrees........
J Mambara & Partners, appellant's
legal practitioners.
Muzenda &
Partners, respondent's legal practitioners.
