GARWE
JA:
[1]
In
a judgment handed down in January 2014, the court a quo upheld the
plea of prescription raised by the respondents and consequently
dismissed the claim against the respondents with costs. Against that
order, the appellant now appeals to this court.
BACKGROUND
[2]
In October 2012, the appellant, as plaintiff, issued summons against
both respondents before the High Court, Harare, claiming payment of
the sum of $30,094-98 being arrear rentals in respect of the
respondents' tenancy of premises known as Shop 5, Zimre Centre,
Corner Kwame Nkrumah Avenue and Leopold Takawira Street, Harare.
The
second respondent had bound himself as surety and co-principal debtor
in respect of the first respondent's indebtedness.
[3]
In their plea, the respondents, as defendants, raised the defence of
prescription. More specifically they averred that, in instituting
proceedings on 19 October 2012, more than three years after the debt
became due, the claim had become time-barred. The plea was not set
down for hearing. Instead the defendants pleaded over to the merits
in the same plea.
[4]
In its replication, the appellant denied that the claim had
prescribed. It averred that the first defendant had, on 22 October
2009, acknowledged the debt and had undertaken to pay the outstanding
amount in full by 10 November 2009. There was no rejoinder by the
respondents.
[5]
In a joint pre-trial conference minute, the parties agreed that the
issues requiring determination at trial were:
(a)
whether the plaintiff's claim had prescribed;
(b)
whether the first respondent had breached the lease agreement by
failing to pay rental and other costs;
(c)
whether the respondents were liable to pay the sum of US$30,094,98
together with interest and costs of suit;
(d)
whether there had been mutual termination of the agreement between
the parties and whether the appellant had unlawfully and unilaterally
ejected the respondents from its premises; and
(e)
whether such conduct had resulted in the respondents suffering
damages “in respect of the first respondent's assets and
business” and, if so, the quantum thereof.
PROCEEDINGS
BEFORE THE COURT A QUO
[6]
At the hearing of the matter, the respondents, through their lawyer,
sought the leave of the court to deal with the issue of prescription
first and lead evidence on it. Despite opposition from the appellant,
the court a quo decided that the issue of prescription be determined
first and thereafter, depending on the outcome, the court would again
hear evidence on the remaining issues.
[7]
In its judgment, the court a quo was of the view that the issue that
fell for determination was the authenticity of the letter purportedly
written by one Annet Mbedzi on behalf of Saintcor Holdings in October
2009.
In
this regard it made a number of observations.
The
letter was not written on any letterhead, unlike in previous
correspondence. It reflected the appellant's postal address. The
letter was also written on behalf of Saintcor Holdings, a company
both parties were agreed does not exist and was not a party to the
lease agreement. The letter was addressed to a Mr Muringani but the
name had been cancelled in black ink and in its place the name
Muringi inserted. Nowhere in the letter is it suggested that Saintcor
Holdings was acknowledging indebtedness on behalf of Saintcor (Pvt)
Ltd.
On
a consideration of all these features, the court a quo concluded that
the letter had not been written on behalf of the first respondent.
Consequently
the court upheld the plea of prescription and dismissed the
plaintiffs claim with costs, hence this appeal.
GROUNDS
OF APEPAL
[8]
In its grounds of appeal, the appellant has attacked the decision of
the court a quo on the basis that it:
(a)
erred in fact and at law in holding that the appellant's claim had
prescribed;
(b)
misdirected itself by holding that the letter that was received by
the appellant on 22 October 2012 was not authentic;
(c)
misdirected itself by making a finding that the author of the letter
that was received by the appellant on 22 October 2009 did not have
authority to author the same.
[9]
It is apparent from the above grounds that it is the conclusion
reached by the court a quo that the letter in question had not been
written on behalf of the respondent that the appellant is
challenging.
PRELIMINARY
ISSUES RAISED BY THE RESPONDENTS
[10]
In their heads of argument, the respondents raised two points in
limine:
(i)
The first was that the judgment of the court a quo reflects three
different dates as the dates when the judgment was handed down.
The
date of the judgment reflected in the notice of appeal is at variance
with the date appearing ex facie the judgment itself and consequently
there has been no compliance with Rule 29 of the Rules of this Court.
(ii)
Secondly, the relief sought is defective as it seeks to substitute
the decision of the court a quo with one referring the matter back to
the court a quo itself.
[11]
In his response, Mr Mpofu drew the attention of the court to a letter
from the Registrar of the High Court which states that the ex-tempore
judgment was handed down on 10 February 2015, which is the date
appearing in the notice of appeal.
On
the prayer, he conceded that the wording was inelegant but argued
that the relief sought was clear. He submitted that the inelegance
does not invalidate the appeal as ultimately the court will make an
order it deems appropriate in the circumstances.
[12]
After hearing argument on the two preliminary issues, this court was
of the view that the issues be rolled over for determination together
with the issues that arise on the merits.
APPELLANT'S
SUBMISSIONS ON APPEAL
[13]
In both his heads of argument and oral submissions, Mr Mpofu raised
the following issues.
(i)
First, that the judgment of the court a quo does not derive from the
pleadings.
(ii)
Second, the appellant's cause of action was predicated upon a valid
cancellation of the lease agreement. Such cancellation was effected
on 18 November 2009 and the cause of action would have accrued on
that day. Therefore when the appellant issued summons on 22 October
2012, the debt had not prescribed.
(iii)
Third, that the appellant would have had no reason to cause the
letter of 22 October 2012 to be generated. Once it had accepted that
the letter had not been generated by the appellant, the court should
have concluded that the letter had indeed been authored by the
respondents.
(iv)
Fourth, that the second respondent knew how to contact Annet Mbedzi,
the author of the letter in question. Annet Mbedzi had been involved
in the goings-on at the premises of the first respondent, and yet
both respondents had not found it proper to call him.
(v)
Lastly, Mr Mpofu submitted that it was improper for the court to have
heard evidence piecemeal. Once the plea of prescription had not been
set down and the respondent had then proceeded to plead over to the
merits, the court should have heard evidence on all the issues and an
assessment of the credibility and integrity of the witnesses
undertaken only after all the evidence had been led.
RESPONDENTS
SUBMISSIONS ON APPEAL
[14]
In response, Ms Mahere made the following submissions:
(i)
First, that what is being attacked by the appellant are findings of
fact which cannot be interfered with on appeal in the absence of a
finding of irrationality on the part of the trial court.
(ii)
Second, that the court a quo was correct in its findings that the
letter received by the appellant on 22 October 2009 had not been
written by or for the respondents. This is because the appellant had
admitted that, by that date, the first respondent had been evicted
from the premises, and consequently the first respondent would not
have used that address in correspondence with the appellant.
(iii)
Third, that the appellant has not established a lawful basis for the
suggestion that the judgment does not derive from the pleadings as no
leave of the court had been sought to advance argument on this
ground, contrary to the Rules of this court. In any event, the
respondents, in their plea, had placed prescription in issue.
(iv)
Lastly, that the debt did not become due on cancellation since rent
was due monthly in advance and therefore the cause of action arose
whenever such rental was not paid on due date. The appellant had, in
any event, evicted the first respondent in August 2009 for nonpayment
of rent and the “debt” included outstanding rentals up to the
date of such eviction.
ISSUES
FOR DETERMINATION
[15]
It is clear from the above that a number of issues arise before this
court. These will be dealt with in turn.
WHETHER
THE NOTICE OF APPEAL REFLECTS A WRONG DATE
[16]
The judgment of the court a quo, cited as HH25/15, reflects the date
of hearing as 7 February 2014 and the date of handing down as 14
January 2015.
The
notice of appeal reflects the date of handing down as 10 February
2014.
A
letter written by the Registrar of the High Court dated 21 May 2015
to the Registrar of the Supreme Court states that the trial judge had
confirmed that the ex-tempore judgment had in fact been handed down
on 10 February 2014.
[17]
In the circumstances, the date reflected in the notice of appeal is
correct.
It
is my view, however, that the correction should more properly have
been made on the judgment itself rather than through a letter.
WHETHER
THE RELIEF SOUGHT IS PROPER
[18]
In its prayer, the appellant seeks the following relief:
“The
appellant will pray that the appeal be allowed with costs and that
the judgment of the High Court be set aside and substituted in place
thereof by an order that:
(1)
The respondent's special plea of prescription be and is hereby
dismissed with costs at an attorney and client scale; and
(2)
The matter be and is hereby referred back to trial on the merits in
the High Court before a different judge.”
[19]
The main thrust of Ms Mahere's argument was that the relief is
defective because the prayer seeks to refer the matter back to the
same court. The High Court cannot make an order remitting a matter to
itself.
[20]
Mr Mpofu has accepted that there is some difficulty with the prayer,
which he says is inelegant. He argued however that the relief sought
is clear and since it is the court that must ultimately make an order
it sees fit, the notice of appeal cannot be said to be invalid on
that score alone.
[21]
I agree with Ms Mahere that para (2) of the prayer is almost
meaningless in its present form. However I also agree with Mr Mpofu
that the relief prayed for is clear. In the event that the appeal
succeeds, the appellant seeks an order that the matter be referred
for trial on the merits.
The
suggestion in the prayer that the matter be referred for trial before
the High Court is an obvious mistake, one which does not, in my
considered opinion, invalidate the entire appeal.
[22]
The prayer, in para (1) seeks dismissal of the special plea of
prescription. It is clear that in para (2) the relief sought is that
the matter be referred to trial on the merits, before a different
judge. In the circumstances, I am unable to hold, as urged by Ms
Mahere, that the relief is so fatally defective as to invalidate the
whole appeal. This preliminary point must also fail.
WHETHER
THE COURT A QUO ERRED IN DEALING ONLY WITH THE ISSUE OF PRESCRIPTION
[23]
As noted earlier in this judgment, the special plea was not set down
for hearing but instead the respondent pleaded over.
At
the trial, the respondents requested the court to deal with the
question of prescription first.
Despite
protestations by the appellant on the proposed course, the court a
quo determined that a full trial on the issue of prescription be held
and if the plea failed, the court would then hear evidence again and
determine the remaining issues referred to it for trial.
[24]
The decision by the court a quo to split the trial into possibly two
was one based on its discretion.
I
have not found any authority, nor has any been pointed out to me,
which suggests that such an approach is wrong.
However,
my view of the matter is that the approach is undesirable and
somewhat irregular.
Once
a matter is referred to trial on identified issues, it is desirable
that all the issues be dealt with at the same time. Witnesses should
be called once to give evidence on all issues. The approach adopted
by the court in this instance may have the undesirable effect that a
witness will be called to give evidence twice in the case and before
the same court. This may complicate the determination of issues of
credibility and probabilities as the court would have to consider the
evidence given by a witness on two different occasions in the same
matter.
SUBMISSION
BY THE APPELLANT THAT JUDGMENT DOES NOT DERIVE FROM PLEADINGS
[25]
Mr Mpofu, for the appellant, argued that the judgment of the court a
quo does not derive from the pleadings.
In
particular, he drew attention to the allegation in the declaration
that the respondents had acknowledged their indebtedness, which
acknowledgment the respondents accepted in their plea but which they
alleged had been actuated by duress and undue influence. How, in
these circumstances, the court found that there had been no
acknowledgment and that the acknowledgment relied upon was fraudulent
baffles the mind.
[26]
In response, Ms Mahere has taken two points:
(i)
First, that this argument does not flow from any of the grounds of
appeal; and
(ii)
Secondly that, in any event, the judgment does in fact derive from
the pleadings.
[27]
I agree with Ms Mahere in both respects.
There
are three grounds in appellant's notice of appeal and none of them
deal with the submission.
Rule
32(2) of the Rules of this court is clear in this regard. An
appellant shall not be heard in support of any ground of appeal nor
set out when the appeal was entered, unless leave of the court is
first sought and granted.
Further
in terms of subrule 3, an applicant may apply to amend the grounds of
appeal either before or at the hearing of the appeal.
This
was not done in the present matter.
Therefore
the appellant cannot be allowed to raise this argument for the first
time in heads filed before this court.
[28]
I further agree with Ms Mahere that, in any event, the judgment does
in fact derive from the pleadings.
It
was the respondents who pleaded prescription. In its replication, the
appellant denied that its claim had prescribed and attached thereto a
copy of a letter received on 22 October 2009 which the appellant
alleged emanated from the respondents. The issue therefore whether
the letter of 22 October 2009 had interrupted prescription became a
live one. This argument therefore has no merit.
[29]
It is also apparent that the appellant may have failed to appreciate
that there were several acknowledgments made by the respondents and
that there never was a suggestion that the letter ostensibly written
on behalf of the first respondent on 22 October 2009 was obtained as
a result of duress and undue influence.
WHETHER
DEBT BECAME DUE ON CANCELLATION OF THE AGREEMENT
[30]
It was Mr Mpofu's submission that the appellant's cause of action
in the court a quo was predicated upon a valid cancellation of the
lease agreement. Put differently, he sought to argue that the debt
which was sought to be recovered would have become due upon
cancellation of the lease agreement.
[31]
In my view, this contention also lacks merit.
It
was common cause that rental payments were due and payable monthly in
advance. Indeed, following the failure by the first respondent to pay
rentals on due date, the appellant caused the eviction of the first
respondent in August 2009. In the circumstances, I agree with the
respondents that the debt became due each time the first respondent
failed to pay rent on due date and that the debt would include all
rentals owing up until eviction in August 2009.
WHETHER
THE COURT A QUO ERRED IN MAKING FINDINGS OF FACT
[32]
The appellant has attacked various findings made by the court a quo
on the facts, and in particular the finding that the letter received
by the appellant on 22 October 2009 was not authentic and that the
author of the letter did not have authority to write the same.
[33]
The court a quo made the following findings of fact:
(i)
First, that the letter was written for and on behalf of an entity
called Saintcor Holdings and not Saintcor (Pvt) Ltd.
(ii)
Second, the name of the addressee had been incorrectly spelt.
(iii)
Third, the letter was not written on the first respondent's letter
head.
(iv)
Fourth, the appellant's address reflected in the letter was
incorrect.
(v)
Fifth, the letter of acknowledgment had been written in October 2009
and yet purported to use the same address from which the first
respondent had been evicted.
(vi)
Sixth, the company that the author, Annet Mbedzi, purported to
represent in the capacity of financial director does not in fact
exist and the company does not, in any event, purport to act on
behalf of the first respondent.
[34]
On the basis of the above observations the court reached the
conclusion that the letter had not been written on behalf of the
first respondent and that the letter did not specify which debt was
being acknowledged.
[35]
The above conclusion cannot be said to be irrational. Nor can it be
said that it is not supported by the evidence.
[36]
The position is now settled that an appellate court will not
interfere with the findings of fact made by a trial court unless the
court comes to the conclusion that the findings are so irrational
that no reasonable tribunal, faced with the same facts, would have
arrived at such a conclusion.
Where
there has been no such misdirection, the appeal court will not
interfere.
This
position was aptly captured by this court in Hama v National Railways
of Zimbabwe 1996 (1) ZLR 664 (S). At 670, Korsah JA remarked:
“The
general rule of law as regards irrationality is that an appellate
court will not interfere with a decision of a trial court based
purely on a finding of fact unless it is satisfied that, having
regard to the evidence placed before the trial court, the finding
complained of is so outrageous in its defiance of logic that no
sensible person who had applied his mind to the question to be
decided could have arrived at such a conclusion……”
DISPOSITION
[37]
In my view, this appeal lacks merit and must therefore fail.
[38]
The appeal is accordingly dismissed with costs.
ZIYAMBI
JA: I agree
GOWORA
JA: I agree
Mhishi
Legal Practice, appellant's legal practitioners
Muringi
Kamdefwere, respondent's legal practitioners
