CHIKOWERO
J:
This
is an opposed summary judgment application.
The
law on the relief of summary judgment is settled.
In
sum, it is to enable a plaintiff with a clear case to obtain quick
judgment against a defendant who has no real defence against the
claim.
The
plaintiff's claim must be unanswerable both on the facts and the
law.
To
successfully repel such an application, the defendant must establish
that he has a good prima
facie defence.
Defendant
must show that there is a mere possibility of his success at the
trial, that he has a plausible case or that there is a real
possibility that an injustice may be done if summary judgment is
granted.
These
principles have been set out in a plethora of cases including
Chrismar
(Pvt) Ltd v
Stutchbury
1973
(1) RLR 277; Bubye
Minerals (Pvt) Ltd and Another
v Rani
International Ltd
2007 (1) ZLR 22 (S); and
Zimplastics (Pvt) Ltd and Corbett
2014 (1) ZLR 68 (H).
Applicant
issued summons
against
respondent seeking to recover the sum of US$194,302.11 being the
balance alleged to be due to him in terms of a compromise agreement
entered into between the parties.
Applicant
obtained a judgment of this court in terms whereof defendant was to
pay to the former the sum of US$3,872,123.00 plus interest and costs
on the higher scale.
In
light of applicant granting respondent a stay of execution, so the
former claims, the parties agreed that the latter would, instead of
the judgment debt, pay the agreed sum of US$5,000,000.00 in full and
final payment.
The
summons claims the difference between the judgment debt and the sum
of US$5,000,000.00. The summons also claims interest and costs.
It
is this summons which gave birth to the summary judgment application.
To
begin with, I dismiss the applicant's point in
limine.
Same
called on me to strike out the opposing papers and to treat the
summary judgment application as unopposed.
The
foundation of the argument was non-compliance by the respondent with
the mandatory, albeit formal, requirements of Rule 227(b) and (c) of
the High Court Rules, 1971.
I
am satisfied that the applicant was not prejudiced by the following
failings in the respondent's opposing papers:
(i)
non-division of the opposing affidavit into paragraphs.
(ii)
non-numbering of some of the paragraphs.
(iii)
absence of pagination of the opposing affidavit.
(iv)
incorrect indexing of the opposing papers.
These
are formal requirements. They are meant to enable the court and the
other litigant to follow the deponent's case and the record with
ease.
Applicant,
despite these shortcomings, was able to file an answering affidavit.
Among other things, he responded to the issues of substance raised in
the opposing affidavit.
In
these circumstances, I accede to respondent's application for
condonation. I will therefore determine the application on the
merits.
I
pause to record that, at the hearing, respondent withdrew its
opposition to the filing of the answering affidavit. Respondent's
heads of argument had taken issue with such filing.
I
am not satisfied that this is a suitable case for the granting of
summary judgment. I am not satisfied that the applicant's claim is
unanswerable.
Applicant
is relying on a verbal agreement of compromise.
The
existence of such an agreement is disputed by the respondent.
A
draft settlement agreement prepared by the applicant's legal
representatives was sent to the respondent for signature. It
increased respondent's indebtedness from the amount granted in the
judgment aforesaid to US$5,000,000.00.
Respondent
never signed it.
The
supporting affidavit deposed to by applicant's legal practitioner
did not mention that US$5,000,000.00 was the compromise amount agreed
to between the parties.
Applicant's
own legal practitioner, in that supporting affidavit, contended
himself with stating the following in paras 3 and 4:
“3.
In or around 1 February 2017, I received a telephone call from
Innocent Chagonda of Messrs Atherstone and Cook. The phone call was a
reaction to a letter I had generated threatening execution. He told
me that he had received RTGS payments into his firm's trust
account.
4.
He undertook to pay the agreed sum to the trust account of Messrs
Venturas and Samukange's trust account once the funds had cleared.”
This
deponent is expected to be privy to the quantum
of the indebtedness agreed to. He does not state that amount.
On
3 February 2017, Advocate Thabani Mpofu, instructed by applicant's
legal practitioners, wrote an email to Mr Innocent Chagonda splitting
the sum of US$5 million into portions of US$3.8 million and US$1.2
million. He provided the bank accounts into which each portion had to
be paid into.
This
may suggest that the parties had agreed to the respondent paying the
sum of US$5 million to the applicant in full and final payment.
So
too does Atherstone and Cook's letter of 2 February 2017 wherein it
was acknowledged that two RTGS payments of US$4 million and US$1
million had been effected to the credit of the author's trust
account.
The
letter was addressed to applicant's legal practitioners.
It
was a response to applicant's legal practitioners' own letter of
the same date. Neither party produced this particular letter.
Two
further considerations, in my view, dissuade me from finding
applicant's claim as unanswerable. They are the following.
If
the indebtedness had been compromised at US$5 million in full and
final payment there would have been no need for the parties to have
costs of suit taxed.
Such
costs were not only taxed. The amount allowed on taxation was taken
up on review before a judge of this court. The judge allowed the
application for review. His decision was appealed to the Supreme
Court.
Respondent's
letter of 9 September 2016 to the applicant was attached as annexure
“C” to the summary judgment application.
It
was attached as evidence that the parties agreed that respondent
withdraws his appeal to the Supreme Court against this court's
judgment ordering payment of the sum of US$3,872,123 plus interest
and costs on the basis of the parties' agreement that respondent
would pay US$5 million in full and final payment instead.
Paragraph
10 of the founding affidavit states in this regard:
“10.
On 9 September 2016 the respondent wrote me a personal letter which I
annex hereto as annexure “C”. The respondent agreed to drop his
appeal to case number HC8103/2014 pending in the Supreme Court and
to pay me all that was due by 31 January 2017 being a compromised sum
of US$5,000,000.00 (five million United States dollars).”
(my emphasis)
Quite
clearly, the underlined portion is a misrepresentation of annexure
“C.”
It
is not necessary that I reproduce the entire contents of that
annexure. It suffices that I record that in annexure “C.”
respondent pleaded for a three-month grace period to raise funds to
liquidate his indebtedness in terms of the High Court judgment. He
states in paras 2 and the last paragraph of annexure “C”:
“… for
this reason, I am willing to drop my appeal so that the order that
was made by the High Court stands.
I
will then put in place mechanisms in terms of which you will be paid
the full amount by 31 January 2017. To this end, I would require that
we agree that the execution of this judgment be suspended until 31
January 2017 by which time I confident you would have been paid…
… considering
that you have waited quite long and that interest will continue to
run on the capital, I think that a delay of 3 months will not
necessarily prejudice you any further. Please let have (sic) from
you.”
The
response to this letter, if any, was not placed before me.
Applicant's
case cries out for trial. It leaves more questions than answers, at
this stage. A trial will redress all that.
Quite
clearly, the respondent's defence that there was no compromise
agreement to pay US$5 million is prima
facie
good and plausible. There is nothing to indicate it as not bona
fide.
Both
parties asked for costs on the punitive scale. I am not satisfied
that costs on that scale are justified.
In
the result, I order as follows:
1.
The application for summary judgment is refused.
2.
The matter under case number HC1245/18 shall proceed in accordance
with the High Court of Zimbabwe Rules, 1971.
3.
The applicant shall pay the costs of this application.
Venturas
and Samukange, applicant's
legal practitioners
Atherstone
and Cook, respondent's
legal practitioners
