Opposed
Matter: SPECIAL PLEA and EXCEPTION
MUNANGATI-MANONGWA
J:
The
first and second plaintiffs in this matter are son and father
respectively and are self-actors.
The
plaintiffs issued summons against the defendant claiming damages for
what they termed “professional negligence for mental suffering”
in the sum of US$1,200,000-00. In the very summons, the first
plaintiff went on to claim against the defendant payment of
$1,400,000-00 for what he termed “Defamation-Libel”.
The
defendant entered appearance to defend and raised two defences being
special pleas and an exception to the summons and declaration.
At
the hearing, the first plaintiff was not in attendance.
The
second plaintiff, the father, sought a postponement of the hearing on
the basis that the son might have been interfered with by certain
perceived political foes, and, he wanted to go and report to the
Police.
The
defendant opposed the application for postponement.
Service
of the notice of set-down having been effected on the plaintiffs and
second plaintiff having confirmed that he had informed his son of the
hearing date a day before and also texted a message to him, the court
refused to postpone the matter.
As
the first plaintiff was in default, the defendant applied for
dismissal of the plaintiff's claim, which application was granted.
The
court proceeded to deal with the second plaintiff's claim.
The
facts of the matter may be summarised as follows:
The
first plaintiff wrote 'O' Level and 'A' Level examinations in
2006 and 2008 respectively. He was not satisfied with the results he
got. The first plaintiff once again sat for another 'A' level
examination in 2009 and got poor results. The first and second
plaintiffs approached the court for relief. Below is the claim
instituted as stated in the summons:
“Professional
negligence for mental suffering US$1,200,000-00 payable half and half
to the first and second plaintiffs and defamation-libel payable to
the first plaintiff US$200,000-00 all in all being US$1,400,000-00.”
The
first plaintiff stated his causes of action as follows:
“(i)
breach of contract because the first plaintiff paid exam fees for a
fit and proper result; and (ii) the omission or failure to issue fit
and proper (or competent) results; and
(iii)
the unfair and provocative discriminating results in the November
2006 and November 2008 diets which resulted in damage of mental
suffering directly as a result of the defendant's carelessness.”
The
second plaintiff's cause of action is couched as follows:
“The
second plaintiff is suing for the careless and deliberate act by the
defendant of having to watch ghastly and inexplicable subtle torture
of his son as well as being his home-based tutor being denied his
exam results in the specified years in what looked unprincipled
political corruption which basically resulted in financial sabotaging
circumstances and a forced wastage of money. The second plaintiff was
also greatly physically inconvenienced.”
It
is to these claims that the defendant raised the special plea and
exception on the basis that:
1.
The claims arising in 2006, 2008 and 2009 had prescribed.
2.
There was a misjoinder as the defendant, the Director of ZIMSEC
should not have been joined in the proceedings as he had no direct
and substantial interest in the dispute. It is the Zimbabwe Schools
Examination Council, a body corporate and a separate legal entity
which should have been sued and not its Director.
As
the first plaintiff's claim had been dismissed with costs earlier,
the court was left with the second plaintiff's claim to deal with.
Prescription
Mr
Kachambwa,
counsel for the defendant submitted that as the plaintiffs alleged
that their claims are based on contract and delict, the claims are
therefore “debts”. He expounded on the scenario as follows:
(i)
For November 2006 examinations, results were received in 2007.
(ii)
For the November 2008 A level examination, results were received in
2009.
(iii)
For the November 2009 A level examination, results were received in
2010.
That
being the factual position, all the claims arising out of complaints
pertaining to those results had prescribed as they were subject to
the 3 year time limit within which a debt expires.
The
second plaintiff only conceded that the claim arising out of the
November 2006 examination, the results of which came out in 2007 had
indeed prescribed.
He
however argued that the rest of the claims were within the running
time limits.
To
determine this issue, one has to look to the relevant Act. The
Prescription Act [Chapter
8.11]
not only defines what a debt is, but also clearly states when a debt
prescribes.
There
was never an issue before the court that what was being claimed falls
under a debt since the definition covers claims arising from delict,
so there is no need to dwell on the definition thereof.
Section
15(d) stipulates that an ordinary debt (as opposed to specific debts
listed in subsection (a) to (c)) prescribes after 3 years.
It
is therefore important to consider the period when the clock starts
ticking for one to ascertain the duration for which the claim would
still be alive.
Section
16(1) of the Act states that prescription shall commence to run as
soon as a debt is
due.
The Act further clarifies when a debt can be said to be due. Section
16(3) states as follows:
“A
debt shall not be deemed to be due until the creditor becomes aware
of identity of the debtor and of the facts from which the debt
arises:
Provided
that a creditor shall be deemed to have become aware of such identity
and of such facts, if he could have acquired knowledge thereof by
exercising reasonable care.”
The
defendant's counsel submitted that, the second plaintiff's cause
of action arising out of the results of the examinations at issue
would start running from the year the result was received. In that
regard, the prescription periods for the two remaining claims would
be as follows:
(i)
claim arising in 2009 would be 2012; and
(ii)
the claim arising in 2010 would be sometime in 2013.
I
agree with the defendant's analysis.
The
claims should have been instituted within 3 years. The second
plaintiff knew or was aware of the identity of the debtor and of the
facts giving rise to the cause of action such that he had no excuse
for failing to institute his claim timeously.
This
is buttressed by the fact that, the second plaintiff detailed in his
declaration the follow ups he made with the relevant authorities
during the years 2007, 2008 and 2009.
Furthermore,
the second plaintiff indicated that he had commenced proceedings in
2012 but had to withdraw the summons as they were fatally defective.
This case was instituted on 29 June 2015, 3 years later after the
initial proceedings which were withdrawn.
Clearly
the second plaintiff's claim has prescribed.
As
the prescription period is stipulated by statute, the court has no
power to extend the period or condone the delay. The court thus has
no choice but to uphold the special plea of prescription raised by
the defendant.
MISJOINDER
The
defendant had further raised the defence of his joinder, alleging
that the defendant being the Director of ZIMSEC should not have been
cited in these proceedings, the body itself being duly empowered by
statute to sue or being sued in its own right.
Counsel
for the defendant argued further that, the defendant had no direct
and substantial interest in the dispute. Even if an order was to be
granted, the defendant would not be required to do something to give
effect to the order.
Rule
87(1) of the High Court rules 1971 makes it clear that no cause or
matter shall be defeated by reason of the misjoinder or non-joinder
of any party, the court being enjoined in its discretion to determine
the issues or questions in dispute in so far as they affect rights
and
interests
of persons who are parties to the matter.
Sub
rule 2 empowers the court at any stage of the proceedings on such
terms as it thinks just and either of its own motion or an
application -
(a)
Order any person who has been improperly or unnecessarily made a
party or who has for any reason ceased to be a proper or necessary
party, to cease to be a party.
In
essence misjoinder or non-joinder of a party is not fatal to the
cause of action per
se.
It remains intact, as against the necessary parties.
The
issue of whether the defendant was improperly or unnecessarily cited
as a party to those proceedings can only be determined by a further
consideration. This is whether that party has a direct and
substantial interest in the dispute.
In
Burdock
Investments (Pvt) Ltd v Time Bank Zimbabwe Ltd & Others
HH194/03
particularly at p(s) 5-6 in describing that interest MAKARAU J (as
she then was) remarked that the interest must be such that judgment
cannot be carried into effect without adversely affecting the
position of the party misjoined or without requiring the party
misjoined to do something to give effect to the judgment. The
required interest, she explained, must be based on a direct legal
relationship between the parties such that the parties must owe each
other obligations to the extent that one can compel the other to
perform or discharge duties.
The
court agrees with defendant's submissions that defendant has no
direct or substantial interest in the dispute.
As
the claim arises out of the issue of examination
results,
the correct body to deal with the matter or to answer the cause would
be Zimbabwe School Examinations Council a body corporate capable of
suing and being sued in its corporate name.
This
body is the one mandated by statute to conduct examinations, confer
or approve conferment of certificates. The defendant does not have to
do something or anything to give effect to the order if it were to be
granted.
There
being no direct legal relationship between second plaintiff and
defendant to the extent that one can compel the other to perform or
discharge duties, the court finds that it was not necessary to join
defendant to these proceedings, in that regard the claim against him
is again dismissed.
EXCEPTION
The
defendant had also excepted to the plaintiff's summons and the
declaration on the grounds that it does not disclose a cause of
action either in contract law or in delict.
Further
it did not comply with Rules 11(c); 99(c) and 109 of this court's
rules. The defendant averred that the declaration is argumentative
and sets out historical and evidentiary facts not necessary in a
pleading.
As
the decision to dismiss the second plaintiff's claim has already
been made, the court will briefly deal with this issue.
Rule
11 of the High Court Rules stipulates that every summons shall
contain -
“a
true and concise statement of the nature, extent and grounds of cause
of action and of the relief, or remedies sought in the action.”
Rule
99(c) states that -
“A
pleading shall -
(c)
Contain a statement in summary form of the material facts on which
the party pleading relies for his claim or defence as the case may
be, but not the evidence by which they are to be proved.”
A
look at the summons itself clearly shows that there is no concise
statement of the nature extent and grounds of cause of action and of
the relief sought.
I
fully identify with the defendant's observations.
The
declaration which is meant to amplify matters raised in the summons
is not only confusing, full of evidence, fraught with allegations
against named individuals not party to the proceedings but also
contains what seems to be legal research of sorts.
In
one instance the second plaintiff seeks to base his claim under
delict (apparent on the face of the summons) and in another instance,
in his declaration, he seeks to rely on contract.
In
both instances the material averments necessary to sustain the claim
under the stated branch of law are glaringly absent.
In
my view, the second plaintiff himself is not clear as to the basis of
his claim.
The
defendant is left at a loss as to what case he has to answer to. Even
the relief sought is problematic and not competent at law.
One
fails to comprehend the claim and relief moreso phrased as
“professional negligence for mental suffering US$1,200,000-00.”
This
is further compounded by the declaration which brings out all sorts
of causes of action all not supported by the material facts. The
summons and declaration disclose no cause of action, the claim is bad
in law and incurably bad.
In
as much as individuals have constitutional rights to bring whatever
claims they have to the courts for adjudication, it is necessary to
ensure that processes comply with the rules of court and that they
are fully and legally informed regarding the decisions to take legal
action.
This
claim borders on abuse of legal process as the second plaintiff on
his behalf and that of the first plaintiff unprocedurally filed
numerous voluminous documents at will including amendments to other
amendments, and wrote several letters to the registrar which
documents had to be read by defendant and the court.
Some
of the documents did not even make legal sense, a typical example
being a notice of withdrawal filed on 10 December 2015, well after
this matter had been argued and judgment was being prepared, which
notice reads as follows:
“Take
notice that 2nd Plaintiff is giving notice to withdraw this matter
because the 1st
Plaintiff was in default of plea. With no order as to costs as 2nd
Plaintiff believes the defendant had been barred.”
The
second plaintiff filed this document on 10 December 2015, well aware
that this matter was already awaiting judgment, further, the first
plaintiff's claim had been dismissed in court in his presence.
If
a litigant is not sure of how to prosecute their rights, recourse
should be made to legal representation which is rendered free of
charge by certain entities.
This
is a typical case where the plaintiffs should bear costs on any
attorney–client scale as their conduct deserves to be censured.
The
following order is granted:
1.
The special pleas raised by the defendant be and are hereby upheld.
2.
The first and second plaintiffs claims against 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.
Dube,
Manikai & Hwacha,
defendant's legal practitioners
Ian
Masamba & Ignatius Masamba,
1st
and 2nd
plaintiffs
legal practitioners
