Opposed
Application
HUNGWE
J: In
November 2017 the plaintiff (respondent in this application)
instituted action against the defendant (the present applicant)
claiming the payment of certain amounts of money due and payable in
terms of a compromise agreement entered between the parties. The
defendant has still not filed a plea. It has however filed two
request for further particularity to the claim.
This
is an application to compel the furnishing of further particulars in
terms of Order 21 Rule 141(b) of the High Court Rules, 1971.
The
last of such requests was filed on 29 November 2017 wherein the
plaintiff insisted that the particulars requested were not necessary
for the defendants to plead.
The
defendants then filed the present application. The plaintiff opposes
the application to compel.
In
terms of the rules of court, particulars of a claim may be supplied
on the principle that:
“A
litigant is entitled to know the cause or defence he has to meet; not
only to know whether he should admit or deny the particular
allegation. He is entitled to be placed in the position of being able
to decide whether to persist in his claim or defence.”
The
particulars to which a litigant is entitled, however, are particulars
of averments forming part of the opposing case; or put another way,
particulars of matters in respect of which the onus is on the
opponent.
A
litigant is not entitled to request particulars of matters the onus
in respect of which is upon himself.
Where
particulars are sought, the incidence of onus is important and
particulars will not be ordered of matters which form no part of the
plaintiff's cause of action or which relate to matters extraneous to
the facto
probanda
put forward by the plaintiff. (See
Trinity
Engineering (Pvt) Ltd v Commercial Bank of Zimbabwe Ltd
2000
(2) ZLR 385).
The
defendant, applicant in the present case clearly seeks matters that
are not necessary for them to plead.
The
bulk of the matters are apparently matters on which they bear the
onus.
Clearly,
this amounts to a fishing expedition where the defendants hope that
information that they may use during cross-examination might be
disclosed. That is not the purpose of seeking further particulars.
In
any event, the defendants have not averred that without the
information requested they would be embarrassed in their pleading.
Such an averment is necessary in that they would have to demonstrate
in what way they would be embarrassed thereby necessitating the
furnishing of the requested particulars.
Having
failed this hurdle, I dismissed the application with costs at the
hearing.
Manase
& Manase,
applicants
legal practitioners
Machingura
Legal Practitioner,
respondents legal practitioners
