BERE J: Plaintiff issued summons in this court on
29 September 2005 seeking various damages as captured in her summons and
declaration.
Her
amended declaration points to the abandonment of her defamation suit and
continuation with the rest of the claim.
According
to her declaration the plaintiff's claim for contumelia as well as other damages stem from her alleged unlawful
eviction which was accompanied by assaults by the defendant and the defendant's
employees who are alleged to have assisted defendants in unlawfully evicting
the plaintiff.
Plaintiff's
declaration further points to the other damages having occurred as a result of
the damage allegedly caused by the defendant and her employees during the
mayhem which was linked to the defendant's alleged unlawful eviction.
Claims
for damages require that tangible evidence be led to sustain such a suit.
Plaintiff is expected to table before the court evidence which show on a
balance of probabilities that the claim as framed is sustainable. Damage claims
are not based on speculation or conjecture. It is eminently important that
every averment be properly supported and proved.
Through
her own testimony the plaintiff was never assaulted and this runs contrary to
her declaration. That she was never assaulted was supported by her own daughter
Memory Chinyemba who was called to support the story as told by the plaintiff.
The two witness's evidence was at variance in many respects where it mattered
most. The record of proceedings bears testimony to this.
In
stead, the plaintiff testified to the effect that she was merely referred to as
an idiot and a thief. Her own daughter did not hear these words being uttered.
The position of the plaintiff's daughter is consistent with the evidence as
narrated by the defendant and her own witnesses who gave a consistent story of
what happened on the day the defendant took occupation of some rooms at 1252 St Marys' Township,
Chitungwiza.
That
there was nothing consistent with the allegations made by the plaintiff is by
implication supported by the failure by the plaintiff to cause the arrest of
the alleged assailants by the police oficers from the station where the
plaintiff claims to have sought refuge on the date the defendant took
occupation. It is inconceivable that if the defendant had behaved in the manner
dramatised by the plaintiff the police would have failed to criminally deal
with such hooliganism.
There
was not the slightest attempt made by the plaintiff to prove her claim for
damages to her property, what the court had at the closure of the plaintiff's
claim were unsubstantiated averments in the plaintiff's declaration and the
annexed schedule.
In
this regard, at the time the defendant testified, she had really no reason to
even respond to the plaintiff's claim for damages as nothing in that direction
had been established. The schedule on its own did not speak to the court about
the alleged damages to the plaintiff's property. The approach adopted by the
plaintiff was extremely lackadaisical and no court would be moved to award
damages in such a scenario.
There
is every reason to believe that the plaintiff had some other motives in
bringing this action. This becomes clear if one considers the well told
position of the defendant and well supported by her witnesses. Defendant's story
was well told and well supported and was easy to follow and it would have been
extremely difficult for the court not to accept wholesale that story.
Plaintiff's
story was a total fabrication and such abuse of the functions of this court must
be condemned in the strongest possible terms and must be met with an
appropriate order of costs to discourage frivolous and vexatious litigation.
Plaintiff's
salvation is that the defendant did not ask for costs on a higher scale, for
this is a classic case where such costs would have been awarded without any
hesitation. It remains mysterious that this case was allowed to go beyond the
closure of the plaintiff's case.
One
gets the impression the plaintiff took advantage of her professional placement
to abuse this court. Such conduct must be discouraged and condemned.
Consequently
the plaintiff's claim is dismissed with costs.
P. Takawadiyi &
Associates, plaintiff's
legal practitioners
Mtombeni,
Mkwesha & Partners,
defendant's legal practitioners
