MAKARAU
JP: This is an exception with an
exception. It is but a skirmish in the battle of suits, applications and
counter applications that the two factions of the “Anglicans” have brought
against each other before this court, a spate of litigation that is now
assuming nuisance value. The appication was partly argued before me and prior
to the resumed hearing, it was withdrawn without a tender of costs. The issue
of costs was then raised for my determination.
For a full appreciation of the
nature of the dispute before me, it is in my view necessary that I set out the
history of this matter in some detail.
The
plaintiff issued summons against the twelve defendants on 1 October 2008. In
the summons, it sought an order declaring that the twelve had seceded from the
plaintiff and that they should be restrained from holding themselves as office
bearers in the Manicaland Diocese of the plaintiff. The order also sought the
eviction of the twelve defendants from the plaintiff's property.
The
claim was defended.
In
their plea the defendants denied the allegation that they seceded from the
plaintiff church and put the plaintiff to the proof thereof. They further
averred that if the plaintiff had proceeded to relieve the defendants of their
posts within the church, such divesture was not in accordance with the canons
of the plaintiff and was therefore illegal.
Two
of the defendants denied that they were office bearers and averred that they were
employees of the church whose contracts of employment were still extant.
In
particular, the first defendant averred that the decision to withdraw the Diocese
of Manicaland from the plaintiff was a decision of the Standing Committee of
the Diocese and that this decision could not be brought before the courts
without citing the body that made the decision. It was further averred that in
any event, the decision to withdraw from the plaintiff had been rescinded and
the fact communicated to the plaintiff.
Regarding
the eviction of the defendants sought by the plaintiff from the plaintiff's
properties, it was averred that the properties occupied by the defendants were
registered in the name of the Diocese of Manicaland, which is run by a Board of
Trustees and that failure to cite the Board of Trustees was fatal to the
plaintiff's claim.
After
the pleadings had closed, the matter proceeded to a pre-trial conference. In
their draft minutes of the pre-trial conference, the defendants raised the
issues of the locus standi of the
plaintiff to bring the proceedings against them, the non citation of the Board
of Trustees to the action, the fate of the contracts of employment of the
second and third defendants and whether the plaintiff could seek the eviction
of the defendants from properties built and owned by the Diocese of Manicaland.
The
issue of the locus standi of the
plaintiff and the role of the Board of Trustees of the Diocese of Manicaland
appear to have weighed heavily with the judge presiding over the pre-trial
conference who then directed that the defendants file an exception outside the
time limits provided for in the rules, to deal specifically with these issues.
The judge also directed that the exception be filed on or before the 29th
of April 2009 and that thereafter, the matter proceeds in terms of the rules.
While
the issue is not at all before me, it however appears to me that this matter
will be before the courts for a while longer than is necessary as it is not
clear procedurally, what should happen now after the withdrawal of the
exception. The pre-trial conference was not concluded. It is not clear whether
the matter should now proceed to trial as there is no such referral and issues
for trial have not been agreed upon. I simply note this in passing. The parties
may have to make a further approach to this court for directions.
On
27 April 2009, the defendants filed a special plea and exception in which it
was alleged that the claim brought by the plaintiff against the defendant was
bad in law and does not set out a valid cause of action. It was further alleged
that in terms of the Acts of the Diocese of Manicaland, all legal proceedings
relating to the property of the Diocese is to be brought by and in the names of
the Trustees.
The
exception was opposed and in due course was set down before me for hearing. It
is not necessary that I detail the proceedings relating to the hearing of the
exception. Suffice it to say that the hearing was postponed and prior to the
resumption of same, the defendants withdrew the exception by written notice
dated 24 February 2010. At the same
time, the defendants filed a notice to amend its plea at the trial of the
matter, to add a special plea.
It
is pertinent at this stage to observe that unless it is further amended, the
special plea to be raised at the trial of the matter is worded in the exact
language used in the exception that has been withdrawn before me. To the
special plea is however attached a copy of the Acts of the Diocese of
Manicaland.
The
issue that arose before me is whether in the circumstances, the defendants
should be made to pay the costs of the withdrawal of the exception.
The
defendants argued that they should not be made to meet the costs of the
withdrawn exception as they have in essence substituted it with a special plea
which they filed on the date of the withdrawal of the exception.
Order
21 of the High Court Rules 1971 which provides for the filing of exceptions and
special pleas does not provide for how these are to be disposed of and what
order as to costs, if any, a court may make where an exception has been
withdrawn.
It
is trite that in a legal system in which the procedures are driven by the
parties to the suit, as opposed to a system where the process is managed by the
court, the general rule appears to me to be that any party to the suit is
entitled to withdraw any of its pleadings provided this does not cause any
injustice to the other party. Following this general rule, it is trite that the
defendants before me were at liberty to withdraw their exception and special
plea provided the withdrawal did not cause any injustice to the plaintiff and
which in justice could not be cured by an order of costs.
In
casu, the withdrawal of the exception
by the defendants is not in issue. By the time the exception was withdrawn
however, both parties had incurred some costs as the parties appeared before me
for oral argument. This was after both had filed heads of argument in the
matter. Counsel argued the matter for the best part of the morning before
seeking a postponement. For all these
procedures and necessary attendances, both parties had to pay legal fees to
their respective legal practitioners.
In
view of the above, the defendants should have tendered the plaintiff's wasted
costs caused by the withdrawal. This is standard practice in this jurisdiction.
Mr Chikumbirike has argued that the
defendants should not be ordered to pay the costs occasioned by the withdrawal
of the exception as they have substituted the withdrawn exception by a special
plea filed on the same date as the withdrawal.
I
cannot agree.
Firstly,
the defendants have withdrawn an exception and have substituted it with what
purports to be a special plea. It presents itself clearly to me that the issues
raised in the special plea filed by the defendants are the same issues that
arise from its plea on the merits. As indicated above, the issues arose from
the defendants' draft minutes of the pre-trial conference. They form part of the very issues that have to
be determined at the trial of the matter. It may be that they are decisive and
their determination will render unnecessary the determination of the rest of
the proposed issues. That, in my view, is besides the point. In any event, the issue can only be heard at the trial of the matter as
that is when the amendment to incorporate the special plea into the record will
be made.
That
the parties will now argue the merits of the trial is hardly a defence against
an award for costs that were occasioned by the withdrawal of the exception.
Secondly,
it appears to me to be the correct position that even if the defendants had
withdrawn one exception and substituted it with another exception, they still
would have been liable for the plaintiff's costs in considering the withdrawn
exception. The issue is not whether or not the same dispute is still before the
court. It is whether by the actions of the defendants in filing the first exception,
the plaintiff has been put to some expense. The award of costs in its favour is
restricted to the consideration of the withdrawn pleading and has little if
anything to do with the outcome of the hearing on the pleading. SMITH J in Hackleton Investments (Pvt) Ltd v Time Bank
of Zimbabwe Limited 2000 (1) ZLR 60 (HC) at 61H-62B aptly summarises the
position as follows:
“I can see no reason why a party should not be permitted to
withdraw an exception or special plea whish he or she realizes is not in order,
or can be improved upon, and replace it with an improved draft, if that is done
timeously. If the other side has been put to some expense in considering or
dealing with the exception or special plea that is withdrawn, then the party
filing the exception or special plea would have to tender wasted costs.”
I
am aware that costs are in the discretion of the court. It is trite that such
discretion must be exercised judiciously and must be guided by general
approaches established by precedent. In casu,
I see no reason to depart from the general rule of compensating a party who has
been put to some expense in considering or dealing with a pleading that is
subsequently withdrawn.
In
the result, I make the following order:
The
defendants are to pay the plaintiff's wasted costs.
Gill, Godlonton & Gerrans,
plaintiff's legal practitioners.
Chikumbirike &
Associates, defendants' legal practitioners.
