The
parties to the above matter are one Ignatius Chombo who is the
plaintiff and one Marian Chombo, the defendant. Mr Chombo is
represented by Advocate T. Mpofu who works under the instructions of
Messrs Manase and Manase Legal Practitioners. Ms Chombo is
represented by Ms B. Mtetwa of Messrs Mtetwa and Nyambirai Legal
Practice.
The
matter, which was last heard on 27 February 2014, is in the defence
stage of the case. The plaintiff's legal representative was in the
middle of cross examining the defendant when, owing to inadequacy of
time, cross-examination of the defendant could not be concluded then.
The case was, as it were, left hanging in the air, so to speak. On 27
February 2014, therefore, the court and the parties agreed to
continue with the matter on the following dates and times:-
(a)
Tuesday, 18 March 2014 at 10am; and
(b)
Thursday, 27 March 2014 at 10am.
On
Tuesday, 18 March 2014, and owing to a mis-communication which had
occurred between the parties' legal representatives and the judge's
clerk, the parties' legal representatives and the clerk appeared in
chambers and confirmed that:
“The
matter could not be proceeded with on the mentioned date but it would
continue to be heard on the day to which the case was postponed by
agreement of the court and the parties.”
Everybody,
therefore, did have their minds focused on 27 March 2014 as the date
on which the parties' case would continue to be heard.
The
court kept its diary undisturbed for the mentioned date and time and
so did the defendant's legal practitioner. No communication,
telephonically or otherwise, came the way of any of those authorities
until 10am of 27 March 2014.
At
10:00am of Thursday 27 March 2014, the date to which the case had
been postponed, I, as the court which is seized with the matter, was
surprised to see a Mr Machiridza, who is a Professional Assistant in
Messrs Manase and Manase law firm, appear before me in chambers in
the company of Ms Mtetwa for the defendant. Mr Machiridza's
statement was brief and to the point. It was to the effect that Mr
Manase, the instructing attorney and Advocate Mpofu, the instructed
legal practitioner in the present case, were engaged in another
matter before my brother judge, Mr. Justice MUTEMA. He stated that he
had been instructed by his superiors to seek a postponement of the
case which was due to be continued before me on the mentioned date.
He advised, further, that Advocate Mpofu was appearing for one party
whilst Mr Manase was appearing for the other party in the case which
was before MUTEMA J. He said he feared that his law firm had
double-booked itself in respect of both cases...,.
The
remarks of Mr Machiridza did not go down well with me, as the judge
who is seized with this case, as well as with Ms Mtetwa for the
defendant.
Our
attitude to the conduct of the plaintiff's legal representative
was, humanly speaking, understandable particularly given the fact
that we were hearing of this craved postponement of the matter for
the first time. We found it difficult to appreciate what could have
persuaded a law firm which is instructing an advocate, and both of
whom are appearing for one and the same party, to have double booked
themselves in the manner which had been stated. We were particularly
concerned that Messrs Manase and Manase Legal Practitioners did not
even have the courtesy of coming to explain the predicament which
they had created for themselves. The need on my part, and on Ms
Mtetwa's part, to have a clear explanation tendered in the
mentioned regard persuaded me to insist that both Mr Manase and
Advocate Mpofu do appear before me there and then so that they
explain their seemingly unwholesome conduct hopefully to my/our
satisfaction.
After
waiting for some time, Mr Pasipanodya, who is a partner in Messrs
Manase and Manase law firm, and Advocate Mpofu walked into my
chambers. Advocate Mpofu accepted the error which had occurred. He
was, however, quick to state that the error was not of his own
making. He confirmed, as was agreed in the past, that the case with
which I am seized was the one which should have been dealt with on 27
March 2014. He stated that he had made the instructing attorneys
aware of that position some time back. It came to him as a surprise,
he said, to learn that another case had been set down for the day. He
said he requested the instructing attorneys to clarify the position
on the matter and Mr Manase advised him that the present case would
not be heard on 27 March 2014. He stated that he told Mr Manase the
importance of finalising the present case which had been postponed
before he had completed his cross–examination of the defendant and
Mr. Manase told him that it was the other, and not this, case which
they would proceed with. He said he requested Mr Manase to advise the
present court of the development. He observed that Mr Manase had not
done anything about his request. He stated that he worked under
instructions, and, if the instructing attorneys tell him to carry out
certain instructions, he cannot act to the contrary. He expressed his
desire to continue with the present case to its final conclusion. He
said he, all along, entertained the hope that the other case would be
dealt with in the future. He stated that he, however, continued to
receive accusations from Messrs Manase and Manase Legal Practitioners
as regards progress of the other case. He said they more often than
not accused him of stalling progress in that other matter.
Mr
Pasipanodya acknowledged the dates of 18 and 27 March 2014 as the
dates to which the present case was postponed by agreement of the
court and the parties. He stated that the other case was set down
some five (5) or so days before 27 March 2014. He advised that Mr.
W.T. Mansase is the firm's lead person in both cases. He said he
advised Mr Manase of the two set down dates and Mr Manase requested
him to forward to him the set down date for the other case so that he
would address the issue which related to the set down dates. He said
he did not hear from Mr. Manase from the mentioned date until on the
morning of 27 March 2014 when Mr Manase phoned to tell him to
instruct Mr Machiridza to appear before me and seek a postponement of
the matter, which thing he did. He apologised on behalf of his law
firm for the latter's unwholesome conduct.
It
is evident, from the foregoing, that Ms Mtetwa, who appears for the
defendant, did not even feature in the equation. She postponed her
other cases which she should have had in other courts pursuant to the
agreement which the court and the parties concluded on 27 February
and re-affirmed on 18 March 2014. The entire matter, it is clear,
revolved around the law firm of Messrs Manase and Manase Legal
Practitioners which double-booked itself, and on Mr Manase in
particular.
Mr
W.T. Manase did not, for reasons best known to himself, avail himself
before the court when the inquiry which relates to this matter was in
progress. Nor did he proffer an explanation for his conduct. He was,
accordingly, given until the end of business on 31 March 2014 within
which period he had to hand into court his written explanation in
respect of the mishap which had taken place shortly before, and on,
27 March 2014.
Mr
Manase failed to meet the deadline of 31 March 2014 which had been
given to him. He failed to do so notwithstanding the fact that his
attention had been drawn to the need, on his part, to explain himself
in written form upon or before that date. His team of three legal
practitioners i.e. Advocate Mpofu, Mr Pasipanodya and Mr Machiridza
who availed themselves before the court on the morning of 27 March
2014 could not, in the court's view, have failed to impress upon
him on the need, on his part, to hand into court his written
explanation upon or before 31 March 2014.
Mr
Manase handed into court his written explanation, through the judge's
clerk, at 4pm of Tuesday 1 April 2014. He offered no explanation for
the day's delay. The court was, however, pleased to note that he
forwarded a copy of the explanation to the defendant's legal
representative. The explanation which Mr Manase gave is devoid of any
substance. It did not take the law firm's matter further than the
fact that it had double booked itself, and it, in the process, placed
itself into a very difficult position.
The
court accepts that instances where a law firm double-books itself due
to inadvertence on its part are a common feature in the judicial
system of any country. What it does not accept, though, is the
absence of decorum and courtesy on the part of the law firm and/or
its lead legal practitioner of not informing the court and/or the
other party of the invidious position into which it/he/she would have
placed itself/himself/herself by the double booking.
The
costs which the parties incurred in the instant case were, or are,
not warranted. They were both prejudiced by the conduct of the
plaintiff's legal practitioners. They should, therefore, be
returned to the status quo ante 27 March 2014 on the issue of costs
for the day.
Mr
Manase offered to make good the loss which was occasioned to the
defendant by the conduct of his firm and himself on 27 March 2014.
The
court remains of the view that neither the plaintiff nor the
defendant should be visited with any costs for the aborted hearing of
27 March 2014. In as far as the plaintiff is concerned, his legal
practitioners did no work which was of benefit to him on the
mentioned date. The defendant, on the other hand, incurred costs
which were, or are, not of her own making. The law firm which caused
her to incur such should place her in the position which she should
have been when the double-booking occurred.
The
court, accordingly, makes the following order:
(i)
That Messrs Manase and Manase Legal Practitioners pay the defendants'
costs for the hearing of 27 March 2014.
(ii)
That Messrs Manase and Manase Legal Practitioners return to the
plaintiff the sum of money, if any, which the plaintiff paid to the
law firm for the hearing of 27 March 2014.
