GOWORA
J: The applicants, as may be summarized
from the brief facts, were engaged in property development in the Tynwald area
of Harare.
Around February 2002 the third respondent executed an agreement of sale with
the first and second respondents in respect of one of the stands being
developed by the applicants and which the third respondent had been mandated to
sell. Arising out of that agreement one Peter Dzingirayi issued out summons
under case number HC 456/07 against the first applicant and the third and
fourth respondents herein. Those proceedings were withdrawn subsequent to a
pre-trial conference.
Thereafter
the same legal practitioner who had acted for Peter Dzingirayi instituted
proceedings by way of summons under case number HC 2383/08 this time with the
first and second respondents as the plaintiffs and the two applicants herein
and the third and fourth respondents as the defendants.
The
applicants have approached the court to have the automatic bar uplifted on the
basis that they were not served with the summons.
The
founding affidavit was deposed by the applicant who narrates the history of the
proceedings filed on behalf of the respondents. He avers, which averment is not
contradicted, that on 29 April 2008, Messrs Chivaura & Associates forwarded
a fresh summons under cover of a letter to the applicants' legal practitioners.
The summons for obvious reasons were returned under cover of a letter dated 6
May 2008. On 4 august 2008, he received a telephone call from his legal practitioners
who asked if he had been served with summons. He replied in the negative but
subsequently received a letter from his legal practitioners confirming that
Messrs Chivaura & Associates were in the process of applying for a default
judgment.
In
answer to the averment in the opposing affidavit that summons had been served
upon Max his son at Plot 17 Kirkman Road, he stated that he had never resided
at Plot 17 Kirkman Road and further that Max was his son, and not his agent. He
has given his residential and business addresses which are not Plot 17 Kirkman
Road, Tynwald.
The
legal practitioner for the applicants has also deposed to an affidavit which is
primarily concerned with the written and telephone communication with Messers
Chivaura & Associates regarding the service of the summons.
The
service of process is provided for in the Rules of this Honourable Court, and
in particular Order 5 r 39(2) provides:
Subject to this
order process other than process referred to in subrule (1) may be served upon a
person in any of the following ways –
a)
by personal delivery to that person or his duly
authorized agent;
b)
by delivery to a responsible person at the residence or
place of business or employment of the person on whom service is to be effected
or at his chosen address for service.
The
claim being pursued by the first and second respondents is based on an
agreement of sale signed by their agent on their behalf and by Nyaude as a
registered estate agent. There is no signature for the sellers. It is important
to note that in terms of that agreement of sale the domiciluim citandi et executandi allegedly chosen by the applicants
as sellers is Suite
208, 2nd Floor
Margolis Plaza,
Harare Street/Speke Avenue.
There was no attempt to serve the summons at the alleged chosen address. The
first and second respondents have not even attempted to address the issue of
why service was not effected at the allegedly chosen address for service.
The
applicants have contended that they do not reside at Plot 17 Kirkman Road
Tynwald. An examination of the agreement of sale being sought to be enforced
reveals that the stand which the subject matter of the dispute is located at
Plot 17 Tynwald. It is common cause that this is an undeveloped stand which has
been subdivided for purposes of sale to willing buyers.
The
applicants neither reside at Plot 17 Tynwald nor are they employed there. Thus
the only manner in which service could be effected at that address was on that
authorized agent. There can be no doubt that service upon the first applicant's
son at that address cannot constitute service on the second applicant. Max
Gecan was served with summons in respect of the second applicant at an address
where the second applicant neither lived nor worked. It is thus not proper
service. The respondents do not state in the opposing affidavit filed on their
behalf why service on Max Gecan is good service on the applicants. In the head
of argument it is submitted that the return of service described Max Gecan as
the first applicant's son and that this was evidence that the first and second
applicants had an interest at Plot 17 Kirkman Road Tywald. In my view this
submission does not go far enough to show that there was compliance with the
rules. The deliberate specification of places that process is served is meant
to ensure that process is served at a place where the defendant or respondent,
as the case may be, is likely to be found. In the circumstances of this case
Plot 17 Kirkman Road is not a place that either the applicant was likely to be found.
A place in the occupation of another person at which defendant occasionally
visited, had meals and slept is not his residence. The only reason to serve the
summons at Plot 17 Kirkman Road Tynwald would therefore be if Max Gecan was an
authorized agent for the applicants. There is no suggestion by the respondents
that service was effected upon Max Gecan on that basis.
I
find the explanation for the failure to enter appearance reasonable in the
circumstances.
The
first applicant defended the earlier proceedings up to pre-trial conference
stage at which stage the action was withdrawn. The first applicant has
challenged the validity of the agreement of sale being sought to be enforced.
There
has been no reckless disregard of the rules, in that the first and second
respondents cannot claim that the summons were served upon the applicants who
then willfully decided not to enter appearances to defend as provided for in
the High Court Rules.
The
first and second respondents rely on a written agreement of sale which was
allegedly entered into by the parties. The applicants deny that an agreement
was concluded. In the declaration filed under case number HC 456/07 the
averment is made that the applicants were represented by the third respondent.
There is no averment that the applicants signed the agreement. In an
application of this nature, all an applicant has to show is that he has a
defence to the claim. The court cannot at this stage subject that defence to
close scrutiny as long as prima facie
there appears to the court sufficient reason for allowing the defendant to lay
before the court the facts he thinks necessary to meet the plaintiff's claim.
In
this matter there is no signed agreement between the parties, the agreement
having been signed by the purchasers and the estate agent. The applicants deny
that they concluded an agreement of the sale of the stand and from the
inception of the dispute they have adopted this stance. They have shown a prima facie defence and should be given
an opportunity to place facts before the court on which their defence is
reliant.
Although
the first and second respondents have defended these proceedings I do not
consider that a punitive order for costs is warranted. An initial mistake was
made in sending the summons under cover of a letter. Thereafter summons was
served by the Deputy Sheriff which service may have been mistaken as being
proper. A punitive order for costs is warranted where a litigant has instituted
process of a frivolous nature or is abusing court process. In the instant case
I do not find that the conduct of the respondents is so unreasonable in
defending the proceedings as to warrant a punitive order for costs.
In the result the applicant is
entitled to an order in terms of the draft with costs on an ordinary scale. I
will therefore issue an order in the following terms:
IT
IS ORDERED THAT:
1.
The automatic bar operating against the applicants as a
result of their not having entered appearance to defend the summons issued
against them in case No HC 2383/08 be and is hereby uplifted.
2.
The first and second respondents be and are hereby
ordered to arrange service of the summons referred to in para 1 above at their
correct addresses or upon their legal practitioners of record.
3.
The costs of this application shall be borne by the
respondents jointly and severally, the one paying the other being absolved.
Gill, Godlonton & Gerrans,
1st & 2nd applicants' legal practitioners
Chivaura Associates, 1st
& 2nd respondents' legal practitioners.
