Unopposed
Roll
MAKONI
J:
The
applicant and his son Ian Masamba, in HC0051/15 sued the respondent
claiming damages for what they termed “professional negligence for
mental suffering” in the sum of USD1,200,000.00.
The
applicant further claimed payment of USD1,400,000.00 for what he
termed “defamation libel.”
The
respondent excepted to the summons as well as filed a Special Plea.
The
matter was determined by MUNANGATI-MANONGWA J who made the following
order:
“1.
The special pleas raised by the defendant be and is hereby upheld.
2.
The first and second plaintiffs claims against the defendant be and
are hereby dismissed.
3.
The first and second plaintiffs to pay defendant's costs on an
attorney–client scale jointly and severally, the one paying the
other to be absolved.”
The
applicant now approaches this court seeking an order in the following
terms:
“1.
The order in case no: HC6051/15 be and is hereby set aside/rescinded
against both plaintiffs.
2.
Ian Farai Masamba be reinstated as the (1st) first plaintiff in case
no: HC6051/15 in which he will invest me with a power of attorney in
compliancy with High Court Rules book: Rule 5(4) with the caveat that
the rules book itself does not reflect rule 5(4) only Form 1 is
reflected and indicates as being originated by Rule 5(4).
3.
An Independent Committee of Enquiry be hereby instituted within 3
months from the date of the issuing of this order respondent's
ZIMSEC to hold an inquiry into this matter and related matters on the
basis of cited record numbers found in this record and the others as
the records are perused new records for perusal are found up until
they are finished at the magistrate's court and high court report
its findings including the performance of the magistrates and judges
in the matters in terms of competence and bias and report whether or
not the president of the country's hands are clean as well as
whether or not his father was Malawian sourcing information from him
and from wherever else possible so as to immortalize the correct
official history as need to verify has arisen because there is the
possibility that history could be falsified and enquiry about the
beaming.”
The
applicant's affidavit is 33 pages.
I
have waded through the prolix affidavit and the draft order and have
failed to decipher what exactly the applicant seeks from the court.
The
record of the matter itself, is 268 pages.
Most
of the material is irrelevant to the issue at hand.
There
is mention somewhere in the founding affidavit that he seeks the
setting aside of the judgement in terms of Order 49 Rule 449(1)(b).
Rule
449(1)(b) provides:
“The
court or a judge, in addition to any other power it or he may have
mero motu or upon the application of any party affected, correct,
rescind, vary any judgement or order -
(a)
………………………..
(b)
In which there is an ambiguity or patent error or omission, but only
to the extent of such ambiguity, error or omission; or
(c)
………………..”
The
applicant summarises his complaint against the judgement in para 56
of his affidavit where he states the following:
“On
the premise that the hon justice Munangati-Manongwa's ruling
ignored a filed and served Notice of Intention to Bar and ignored the
effect of the Bar and on the premise that she addressed her dismissal
ruling against the 2nd plaintiff basing it on a retrieved or entirely
deleted Plaintiff's Declaration than base it on the filed and
served Amended Plaintiff's Declaration and Notice of Amendment and
on the premise that the ruling ignored that the Respondent did not
oppose Amendments which are allowed by Order 20 Rule 132 thus the
Order granted in case no. HC 6051/15 arguably was not incorrectly or
arguably was improperly, or irregularly or fraudulently or
deceitfully granted.”
What
I can pick from the above is that:
(i)
The Judge ignored the fact that the defendants were barred.
(ii)
She relied, in her ruling, on the plaintiff's declaration and yet
they had filed a Notice of Amendment and the amended plaintiff's
declaration which was not opposed by the respondent.
The
issue regarding the bar of the respondent was not raised before
MUNANGATI-MANONGWA J.
The
applicant should have raised it as a point in limine before the
Court. The Court could not therefore grant what had not been prayed
for.
As
regards the amendments, the court actually commented on them on p6 of
the cyclostyled judgement when Judge said:
“This
claim borders on abuse of legal process as the second Plaintiff on
his behalf and on that of the first Plaintiff unprocedurally filed
numerous voluminous documents at will including amendments to other
amendments …..”
The
court did not there ignore the issue of the amendments. It had regard
to them and made a finding on them.
The
applicant has therefore not made out a case for the setting aside of
the Judgement in HC6051 in terms of Rule 449(1)(b).
The
relief that he seeks in paragraph 2 and 3 is incomprehensible and
meaningless and the court cannot be of assistance to him.
I
made the following observations after examining the law regarding
vexatious proceedings in another matter involving the same applicant
Ignatius Masamba v ZETDC HH699/16 that:
“The
proceedings in this matter can safely be described as vexatious. The
court must be able to protect and control the procedure and its
proceedings to avoid abuse by litigants. It is my view that this sort
of case where a litigant will in future be required to seek leave
before filing and serving other litigants with his or her process.
This would be in a bid to prevent abuse of its process and to other
litigants from being harassed and being put out of pocket by
vexatious litigants.”
The
same can be said of the present matter.
In
view of the above I will make the following order:
1.
The application is dismissed.
2.
The applicant is required to seek leave of this court before he can
issue any process out of this court.
3.
There will be no order as to costs.
Dube,
Manikai & Hwacha, respondent's legal practitioners
