MALABA DCJ: The appellant sued the first respondent
and second respondent for nullification of the contract of sale they entered
into leading to the third respondent authorizing cession by the first
respondent to the second respondent of title, rights and interest in Stand 2110
Solani, Epworth. The appellant had
earlier purchased the property from the first respondent.
The ground on which the
appellant claimed nullification of the contract of sale is that the second
respondent was fully aware at the time of entering into the contract with the
first respondent of her prior rights in respect of the property. Summons was served by the Deputy Sheriff on a
tenant who accepted service on behalf of the first respondent on 20 July
2006. The first respondent did not enter
appearance to defend. The second
respondent who entered appearance to defend raised the question of prescription
alleging that the period of prescription had run against the appellant's claim
against the first respondent.
The court a quo in a terse judgment found in
favour of the second respondent without having determined the question whether
the first respondent had notice of the summons.
The rules of the High Court clearly provide that a return of service by
the Deputy Sheriff is prima facie
evidence of service of process having been effected on the person for whom it
is intended. In this case there is no
other evidence to rebut the presumption that the first respondent received the
summons. The first respondent must be
taken as having been in default of appearance at the hearing of the matter by
the court a quo.
In our view only the
first respondent would have had the right to raise the defence of prescription
against the appellant in respect of the claim relating to the contract between
the two. In the circumstances it was not
competent for the second respondent to raise the defence of prescription on
behalf of the first respondent against a claim of a debt which he never owed to
the appellant.
The learned Judge misdirected himself in accepting that the second
respondent could at law raise the defence of prescription in the circumstances
of this case. He also misdirected
himself by holding that the prescription, if it was valid, would have started
to run from 12 March 2000 at which time the first contract had not been
performed to give rise to a cause of action against the first respondent.
It is therefore the unanimous view of the Court that the appeal be allowed.
It is therefore ordered as follows:
"1. The
appeal is allowed with costs.
2.
The judgment of the court a quo is set aside and substituted with the following:
"The point in limine is dismissed with costs".
3.
The matter shall proceed to trial on the merits."
ZIYAMBI JA: I agree
CHEDA AJA: I agree
Sawyer & Mkushi, appellant's legal
practitioners
F M Katsande &
Partners, second respondents' legal practitioners
