Civil
Appeal
CHITAKUNYE
J:
On
26 March 2015 we dismissed the appellant's appeal with costs on the
attorney-client scale. We indicated that full reasons will follow.
These are the reasons for the dismissal.
The
appellant owns an immovable property namely Flat No.4 Resdale, 56
Selous Avenue, Harare. The appellant is resident in New Zealand and
she was represented in these proceedings by her brother Ignatius
Masamba by virtue of a General Power of Attorney she granted to him
in the year 2011.
In
2011 the appellant, through Ignatius, sued defendant for the sum of
$1,960-00 broken down as follows:
“Their
statements are a Nuisance $150-00;
Professional
negligence $1,500-00;
Mental
distress/physical inconvenience/time $300-00;
Transport/stationery/photocopying
$10-00”
The
summons commencing action was not clear on the cause of action or the
legal basis for the various claims.
The
particulars of claim are to say the least confusing and incoherent.
The particulars of claim do not disclose the legal basis for the
claims.
It
is trite that particulars of claim must clearly disclose the cause of
action being relied upon. If it is based on contract the nature and
extent of the contractual obligations and their breach must be clear.
If it is a suit for damages the summons and particulars of claim must
clearly spell out whether such damages are being claimed in contract
or under an aquilian
action.
In
casu
the summons and particulars of claim did not disclose whether the
damages being claimed were for breach of contract or for a delict.
If
the damages are in delict, the summons did not properly establish the
cause of action. No wrongful or unlawful conduct on the part of
respondent is alleged, let alone established from the summons and
particulars of claim. Nyaguse
v Skinners Autobody Specialists & Another
2007 (1) ZLR 296 (H) and Border
Timbers Limited v ZIMRA 2009 (1)
ZLR 131 (H).
Based
on the above there was virtually no case to try.
A
trial was, nevertheless, held after which the trial magistrate, after
considering each of the claims, dismissed the appellant's claim
with each party to pay their own costs.
The
appellant being dissatisfied with the magistrate's decision
appealed to this court.
The
respondent opposed the appeal and raised points
in limine
on points of law. Though some of the points of law may not have been
clearly raised in the court below, we were of the view that the
points pertain to issues that are clear from the pleadings. The
consideration of the points will not cause any unfairness as clearly
part of the aspects were raised and appellant was aware of them.
Ngani
v Mbanje & Another; Mbanje & Another v Ngani
1987 (2) ZLR 111 (SC).
Upon
perusal of the appeal record it was apparent that appellant's
appeal was not in order.
On
27 January 2015, we inquired on the authority for Ignatius to act for
the appellant when all he had was a general power of attorney which
did not specify that he was empowered to institute litigation.
We
also drew Ignatius attention to the defective nature of the notice of
appeal.
Upon
noting that he was intent on prosecuting the appeal as it is we
advised him to seek legal assistance before we decided the fate of
the appeal.
On
that day he agreed.
The
appeal hearing was thus postponed to 26
March
2015.
When
the matter was heard on 26 March 2015, Ignatius indicated that he had
approached a legal practitioner. He however did not know the name of
that legal practitioner or the law firm. He further on said that he
had not engaged the services of any legal practitioner as he had no
financial means to engage one but was ready to argue on his own.
Upon
further inquiry from him he indicated that his sister (the appellant)
had in fact instructed him to withdraw the appeal. He had however on
his own accord decided to pursue the appeal despite his principal's
instruction.
It
is apparent therefore that from Ignatius own admission he no longer
had the mandate to pursue the appeal once his principal instructed
him to withdraw the appeal.
In
any case a general power of attorney is inadequate for litigation.
There was need for a specific power of attorney to litigate.
In
Ashley
v S.A. Prudential Ltd
1929 (1) TPD 283 at 285 Tindall J had this to say on the issue of
general power of attorney:
“But
in my opinion, where the authority is stated to be 'to demand and
receive the title deeds relating to such transfer' it cannot be
said that bringing legal proceedings to obtain the title deeds is a
necessary or usual means of executing the authority to 'demand and
receive'. The institution and prosecution of legal proceedings is
an important step which may involve the principal in great expense
and I see no justification for holding that where a principal
authorises an agent to 'demand and receive' a thing, the
principal must be taken to have intended to include the authority to
bring and prosecute proceedings. There is no reason for construing
the word 'demand' in a sense other than its ordinary sense which
is well understood and means 'claim' in other words an
extrajudicial demand.”
Equally
in Mutemererwa
& Another v Tavarwisa & Another
HH160-2004 Kamocha J opined that:
“In
casu,
the power of attorney nominated and appointed the agent for managing
and transacting all the principal's affairs involving the purchase
of the property. There would be no justification for construing it to
have authorised him to bring and prosecute legal proceedings. He had
no authority to do that.”
In
casu,
the general power of attorney, issued on the 14th
April 2011, related to the management of 4 Resdale, 56 Selous Avenue,
Harare. The second paragraph of that power of attorney clearly states
its purpose as:
“General
management of the property. This is to include rental management
inclusive of any issues arising from that, maintenance and general
keeping of the property.”
I
am of the view that the purpose did not authorise the agent to
institute and prosecute litigation.
He
therefore had no authority to institute ligation without the
principal's specific or special mandate as at the date of
instituting the action.
It
was only on 12 March 2013 that a power of attorney to litigate was
granted, well after the judgment by the court a
quo.
This
special power of attorney had no retrospective effect.
Paragraph
2 thereof states that -
“The
areas of authorisation are regarding the litigation over water,
electricity and rent issues. The appointed party shall have the
rights and powers to make decisions on my behalf as above effective
from 1/3/13 and shall act accordingly until resolved with the
exception if notice of termination is requested.”
The
power of attorney is specific on the area of authorisation and those
stated areas do not include actions for nuisance, negligence mental
distress/physical inconvenience/time and other claims stated in
appellant's summons.
The
power of attorney specifically states that it is with effect from 1
March 2013 and so it had no retrospective effect.
It
may also be noted that as the principal had instructed her agent to
withdraw the appeal in no uncertain terms the agent no longer had the
mandate to proceed with the appeal.
I
am of the view that from whichever angle one analyses the issue,
Ignatius had no authority to prosecute the case and even to pursue
the appeal. He is clearly on a frolic of his own for his own
ingratiation. He cannot succeed in such pursuit.
The
next aspect to consider is that of the Notice of Appeal.
Order
31 Rule 2(4) of the Magistrates Court (Civil) Rules, 1980 states
that:
“A
notice of appeal or cross appeal shall state -
(a)
Whether the whole or part only of the judgment or order is appealed
against and, if part only, then what part; and
(b)
the grounds of appeal, specifying the findings of fact or rulings of
law appealed against.”
The
grounds of appeal must be set out concisely and in separate numbered
paragraphs.
In
Chidyausiku
v Nyakabambo
1987 (2) ZLR 119 (SC) court held that in order to be valid, a notice
of appeal must be directed against the whole or part of the
substantive order of the court below and not to its reasons for
making the order.
In
casu,
the grounds of appeal contain evidence and do not allege in concise
terms the alleged misdirection on the part of the trial magistrate.
The grounds of appeal are in fact appellant's arguments.
Not
only are the grounds long and winded but they are argumentative and
not pointing to where appellant believed the trial magistrate erred.
It is more of restating his case.
On
the 30
January
2015 Ignatius filed a notice of amendment in which he purported to be
amending the Notice of Appeal and the heads of argument.
The
amendment of the notice of appeal was the deletion of the entire
notice of of appeal and the insertion of a new notice of appeal.
Unfortunately
this was to no avail as even the purported amendment is as defective
as the first.
The
first notice of appeal having been a nullity, the amendment was of no
effect as one cannot amend a notice of appeal that is a nullity.
There is nothing to amend.
The
respondent sought for the dismissal of the appeal with costs on the
attorney client scale.
Upon
a careful analysis of the submissions and noting in particular
Ignatius insistence even when the anomalies with his appeal were
pointed out we were persuaded to award costs on the higher scale.
The
appellant's agent was simply stubbornly refusing to see reason and
in the process put respondent to unnecessary expense.
This
is a case which should not have seen the corridors of this court or
should at least not have been persisted with especially after the
principal had instructed the agent to withdraw the appeal.
The
appeal was thus dismissed with the appellant to pay costs on the
attorney-client scale.
Muza
and Nyapadi,
respondent's legal practitioners
