Civil
Appeal
MUZENDA
J:
Appellant
instituted summons at Rusape Magistrate Court claiming $5,000-00 from
the respondent being general damages arising from the alleged
unlawful destruction of appellant's temporary structure constructed
at No.7688 without a valid court order as well as for harassing
appellant's wife at the latter's work place without appellant's
consent.
After
the issuing out of the summons the appellant served the respondent
with various court processes and on 9 April 2019 appellant filed an
application for default judgment. Unfortunately on 19 April 2019 the
learned magistrate dismissed the application.
Unamused
by the dismissal the appellant noted an appeal on 16 August 2018
outlining the grounds of appeal as follows:
“1.
the respondent failed to plead hence the request for default
judgment.
2.
the learned magistrate erred to take into cognizance the appellant
served the respondent with all the papers including the ones he
further requested, but for the second time he defaulted to submit his
plea.
3.
the learned magistrate erred in failing to take cognizance that the
appellant had stated in case No. 2030/17 that the demolition of the
temporal structure was illegal and it would attract costs.
4.
the learned magistrate erred in failing to take into cognizance that
the appellant applied for an interdict against the respondent in case
2030/17 and (he), the respondent went further to demolish the
appellant's structure without a court order.
5.
the learned magistrate failed to consider that the appellant was
allowed to erect a temporal structure, after he had approached the
Housing Director for approval.
6.
the learned magistrate erred in failing to take into cognizance that
no building plan is required in the Model Building By Laws Part 4
section 39 (1, 2, 3 and 4).
7.
the learned magistrate erred in failing to take cognizance that the
section she quoted from the respondent's papers does not apply to
the contract and structure that the appellant had put up, the section
consists of enforcement and prohibition orders.
8.
the learned magistrate failed to take into cognizance that the
respondent had harassed the appellant's wife without any reason to
do so, on the matter she was not aware of.
9.
the learned magistrate failed to take into cognizance that it was not
the respondent's call to demolish the structure without a court
order, thus no need for the appellant to appeal for case no.
2030/17.”
When
the respondent was served with the summons it entered appearance to
defend providing its address of service as 294 Chimurenga Street, Box
414 Rusape, its legal practitioners offices.
The
appellant filed a notice to plead and other subsequent pleadings not
on this given address but at 398 Manda Avenue Rusape, the Rusape Town
Council's Offices.
The
subject notice to plead dated 28 March 2018 which led to the
appellant applying for default judgment was not served on the
respondent's address of service but at the town council's
physical address.
Order
10(3)(b) of the Magistrates Court (Civil) Rules, 2019 SI 11 of 2019
provides as follows:
“(b)
subject to sub rule (2), given an address for service within a radius
of 15km of the courthouse from which the summons was issued, and;”
The
operative clause relating to the issue of address of service is
identical to the one which was in SI 290 of the Magistrate (Civil)
Rules, 1980.
Once
a party has notified the clerk of court of its address of service the
other party shall serve all proceedings, pleadings or processes on
the chosen address. Service of process or any other address other
than the chosen address of service provided by the litigant in my
view will not be in terms of the rules and will be a nullity.
On
9 April 2018 when the appellant filed a request for default judgment
on the basis that the defendant had been duly served and had not
submitted its plea, it was not correct.
The
appellant had failed to serve the process on the supplied address of
service for the respondent which was Messrs Chiwanza and Partners
Legal practitioners, 294 Chimurenga Street. P.O. Box 414 Rusape.
That
was the address of service to be used by the respondent and that was
where the Messenger of Court was to serve the process or pleadings.
The
appellant did not follow the procedure in the rules of the court a
quo
and the application for default was not properly before the court,
the appellant's papers were not in order and the learned magistrate
ought to have given directions to the appellant to comply with the
rules than to dismiss the application on merits.
In
doing so the learned magistrate misdirected herself.
In
an application for default judgment where the plaintiff is claiming
damages as in
casu,
the plaintiff has to comply with Order 11(4)(5)(a) of the Rules which
provides:
“5.
The clerk of court shall refer to the court any request made for the
entry of judgment on a claim for damages; and –
(a)
the plaintiff shall furnish to the court evidence, either written or
oral, of the nature and extent of the damages suffered by him or
her;”
The
order of the court a
quo
in dismissing the application was in my view not proper in the sense
that the appellant's claim was prematurely terminated and for
certain the appellant did not know the way forward in the
circumstances.
In
his mind he believed that the respondent had failed to file its plea
within the time expected of it albeit the wrong method of service of
process.
As
already ruled above, the court ought to have given the appellant an
opportunity to comply with the rules and resubmit its application in
the event that the respondent continued to be in default of filing
its plea or other processes.
There
is also need to comment on the appellant's claim pertaining to his
wife where appellant claimed damages from the respondent “for
harassing my wife at her work place, without my concern (sic)
(including my family to my personal business) (whatever appellant
meant by that), the wife is an adult, she can sue the respondent for
relief in her own capacity not through the appellant.
The
appeal succeeds on the reasons outlined herein and the following
order is returned:
1.
the appeal is upheld.
2.
the matter is remitted to the magistrate court for continuation
before any magistrate.
3.
the plaintiff is granted leave to issue a fresh notice to plead in
terms of the Magistrate Court Rules and serve it on the defendant at
the registered address of service.
4.
Costs to be in the cause.
MWAYERA
J agrees ________________________
Chiwanza
& Partners,
respondent's legal practitioners
1.
See Order 7 Rule 5(2)(b) of the Magistrates Court (Civil) Rules, 2019
cited herein
2.
See also matter of Mavheya v Mutangiri and Others 1997 (2) ZLR 462 at
463B
