On
the night of 8 October 2013, at an unnamed road, in an unnamed part
of Zimbabwe, a tractor belonging to the plaintiff, whose description
and registration particulars are not given, was parked by the side of
the road when it was hit by an unnamed motor vehicle belonging to the
second defendant but driven by its employee, the first defendant, as
a result of which it sustained damage requiring repairs at a total
cost of $6,481=.
I
mention this just to highlight how un-informative the plaintiff's
pleadings are.
It
is unbelievable how a pleading could so disarmingly lack
particularity as to leave the reader nowhere near knowing what the
claim is all about. One is left un-informed and no wiser as to where
and how the accident occurred, what it involved, and who caused it.
We
can only surmise that somewhere, at a place policed by Mvurwi Police
Station (because the first defendant allegedly paid an admission of
guilt fine at that police station), an accident involving a tractor
occurred.
When
formulating pleadings, legal practitioners should always bear in mind
the purpose of pleading because the essence of any claim is found in
the pleadings. The function of pleadings is to inform the other
party, in concise terms, the precise nature of the claim they have to
meet and also to identify the area of law under which the claim is
made. Different branches of law require different matters to be
specifically pleaded for a claim to be sustainable under that action:
Chifamba
v Mutasa and Others
HH16-08;
Nhau
v Kafe and Another
HH73-15.
The
plaintiff has instituted summons action against the first, second and
third defendants for payment of a total sum of US$196,656= being
$7,920= for hiring equipment and $188,736= “being loss suffered by
plaintiff as a result of not undertaking his farming activities to
full capacity.” On the face of the summons he attempts to give a
summary of the claim in the following:
“Plaintiff's
claim against (sic) judgment against 1st,
2nd
and 3rd
defendants jointly and severally, the one paying the other to be
absolved for:
(a)
Payment of the sum of US$196,656= the one paying the other being
absolved broken down as follows:
(i)
US$7,920= being the loss suffered by plaintiff as a result of not
farming to full capacity.
(ii)
Interest on (i) and (ii) above calculated at the prescribed rate from
the date of issue of summons to the date of payment in full.
(iii)
Collection commission an costs of suit on a legal practitioner and
client scale.”
Something
is badly wrong with the above passage in the summons. It does not
make sense. While I appreciate that arithmetic has never been the
strongest point for lawyers, the breakdown does not add up, they may
now be adding another weakness - grammatical frailties.
In
his declaration, the plaintiff averred, without making any reference
to a motor vehicle driven by the first defendant, that the first
defendant negligently caused the accident by driving without due care
and attention and without taking proper care. As a result, his
tractor was damaged requiring repairs at a cost of $6,481=. While his
tractor, which is used for farming activities, was off the road, he
was forced to hire equipment from the neighbours at a cost of
$7,920=. He also lost income of $188,736= which he would have derived
from farming.
The
basis of the claim against the third defendant is only pleaded in
paragraph 16 of the declaration which reads:
“16.
The third defendant is the first and second defendant's insurer.
3rd
defendant has since paid for the repair of the tractor in the sum of
US$6,481=. As insurer, the 3rd
defendant is jointly and severally liable to compensate the plaintiff
for the loss.”
That
is all that is said about the third defendant and nothing else.
The
third defendant has excepted to the summons and declaration in the
following:
“TAKE
NOTICE that the 3rd
defendant excepts to the plaintiff's summons and Declaration as bad
in law and more particularly in that:
1.
Ad Summons
The
summons does not disclose a cause of action and does not comply with
the requirements of the High Court Rules as it does not contain a
concise statement setting out the cause of action.
2.
Ad
Declaration
The
claim by the plaintiff does not arise out of damage to its property
it being clearly conceded that its tractor has since been repaired as
at the date of the issuance of the summons. The plaintiff's claim
is for consequential damages for which the third defendant, being an
insurer for the purposes of section 23 of the Road Traffic Act, is
not liable for.”
Counsel
for the excipient submitted that the face of the summons does not
comply with Rule
11(c) of this court's rules which requires that it must contain:
“A
true and concise statement of the nature, extent and grounds of the
cause of action and of the relief or remedies sought in the action.”
Although
now with the benefit of several months of reflection and
consideration, the action was instituted on 25 November 2014, counsel
for the plaintiff did not see anything wrong with the face of the
summons. As far as he was concerned, the import of Rule 11(c) is that
the summons must establish a case for the defendant to answer. When
his attention was drawn to the fact that even the breakdown of the
claim does not add up, counsel for the plaintiff submitted, without
seeking any amendment, that the summons is capable of amendment.
Whether by that he meant that the plaintiff will move to amend the
summons at a future date or that an exception cannot be made to a
summons capable of amendment, he did not clarify.
I
have stated that the summary of the claim is defective and does not
make sense. It cannot pass in its present state. In fact, the entire
pleading betrays in-attention and negligence on the part of the
drafter which is of unacceptable levels. It fits squarely the
description given by GILLESPIE J in Mavheya
v Mutangiri and Others
1997
(2) ZLR 362 (H)…, that:
“The
face of the summons, therefore, discloses profoundly muddled thinking
on the part of whomsoever was responsible for drawing the summons. In
fact, that defect is, however, mitigated by the filing of a
declaration. One thus turns to this declaration in order to examine
the cause of action.”
In
my view, there is merit in the exception raised against the face of
the summons. Ordinarily, where such an exception is upheld, the
plaintiff would be afforded an opportunity to amend the summons
within a fixed period of time and not an outright dismissal of the
claim: Adler
v Elliot
1988
(2) ZLR 283 (S)…,.; Auridiam
Zimbabwe (Pvt) Ltd v Modus Publications (Pvt) Ltd
1993
(2) ZLR 359 (H)…,.
It
is the second leg of the exception which poses serious difficulties
for the plaintiff.
I
have said that the third defendant has been sued as an insurer of a
motor vehicle. The requirement for insuring a motor vehicle for use
on any road in this country is provided for in the Road Traffic Act
[Chapter
13:11].
Section 22 of the Road Traffic Act [Chapter
13:11]
provides:
“(1)
Subject to this Part, no persons shall use a motor vehicle or trailer
in a road unless there is in force in relation to the use of the
motor vehicle or trailer by the user –
(a)
A policy of insurance; or
(b)
A security;
in
respect of third-party risks which complies with the requirements of
this part.”
This
is the requirement for a statutory policy of insurance in respect of
the use of motor vehicles.
Section
23 of
the Road Traffic Act [Chapter
13:11]
provides:
“(1)
A statutory policy shall be issued by a person who is approved by the
Minister as an insurer for the purpose of this part.
(2)
Subject to this section, a statutory policy shall insure such persons
or classes of persons as may be specified in the policy in respect of
any liability which may be incurred by them in respect of –
(a)
The death of, or bodily injury to, any property.
(b)
The destruction of, or damage to, any property caused or arising out
of the use of the motor vehicle or trailer concerned on a road.
(3)
A statutory policy shall not be required to cover –
(a)
Any contractual liability; or
(b)…,.
(c)…,.
(d)…,.
(4)
Notwithstanding any other law, a person who issues a statutory policy
shall be liable to indemnify the persons or classes of persons
specified in the statutory policy in respect of liability which the
statutory policy purports to cover in the case of those persons or
classes of persons.”
Counsel
for
the excipient submitted that compulsory motor insurance against third
party risk is limited by statute to death or bodily injury to any
person and the destruction of or damage to any property caused or
arising out of the use of the insured motor vehicle. It does not
extend to consequential damages for failure to farm as a result of
damage to property.
I
agree.
The
plaintiff has pleaded that the excipient discharged its obligations
arising from the insurance of whatever vehicle collided with his
tractor by paying the sum of $6,481= required to repair the tractor.
He has not pleaded any other cause of action against the excipient
averring only that “the third defendant is the first and second
defendant's insurer.” He does not even begin to suggest there is
any other cover in terms of which consequential damages are claimable
against the excipient.
I
do not agree with counsel for the plaintiff that the excipient's
pleading amounts to a confession and avoidance of the plaintiff's
cause of action and therefore cannot ground a valid exception.
Writing
about confession and avoidance as a method of pleading to a claim,
HERBSTEIN and VAN WINSEN, The
Civil Practice of the Superior Courts in South Africa,
3ed, Juta and Co Ltd…, said:
“The
defendant may admit the facts alleged in the declaration but seek to
avoid the legal consequences by setting up other facts which, if
established, would have the effect of such an avoidance. Thus,
defendant, while he admits that he is bound in contract to the
plaintiff as alleged, may wish to plead that he has been released
from his obligations under the contract by reason of merger, pactum
de non pretendo,
fraud, misrepresentation, or one or other of the grounds which, if
established, would release him from the usual consequences of the
contract. All matters of confession and avoidance must be
specifically pleaded.”
In
my view, it is the plaintiff who has pleaded in such a manner as to
admit facts and then release the excipient from the legal
consequences of those facts. He has stated that, as insurer, the
excipient has discharged the obligation of repairing the damaged
tractor. No further liability has been pleaded.
There
is therefore merit to the exception.
While
the defect in the face of the summons can easily be rectified by an
appropriate amendment, I do not think the plaintiff can do anything
to save the absence of a cause of action against the insurer where he
cannot allege the existence of insurance cover over consequential
damages. Counsel for the plaintiff did not suggest that it exists but
could not find it in him to concede that the plaintiff has blundered
by suing the insurer in this matter. It means the end of the road for
the plaintiff in respect of the excipient.
In
the result, it is ordered that:
1.
The exception of the third defendant is hereby upheld.
2.
The plaintiff shall bear the third defendant's costs.
