Under
paragraph 1 of its declaration, the plaintiff went on to describe itself as
follows:- “1.
The plaintiff is a company duly incorporated in terms of the laws of the
Republic operating and carrying on business from the 6th Floor,
Hungwe House, Suit 605, Jason Moyo Avenue, Harare, but for whose address for
service for purpose ...
Under
paragraph 1 of its declaration, the plaintiff went on to describe itself as
follows:-
“1.
The plaintiff is a company duly incorporated in terms of the laws of the
Republic operating and carrying on business from the 6th Floor,
Hungwe House, Suit 605, Jason Moyo Avenue, Harare, but for whose address for
service for purpose of these proceedings is care of its undersigned Legal
Practitioners, Messrs Scanlen & Holderness, 13th Floor, 74 Jason
Moyo Avenue, Harare.”
The above
description was incorrect because the plaintiff is not a body corporate.
Upon
filing an appearance to defend, the defendant proceeded to file a special plea
indicating that, because of the above description of the plaintiff, the summons
was a nullity…,.
Since
the special plea is based on the validity of the summons, I shall not, at this
stage, go into the details of the parties' claims.
In
its special plea filed on 14 November 2011, the defendant averred that the
summons and declaration are invalid because:-
“i.
Gloar Design Team – as pleaded in the heading and thus citation of the parties
– is a juristic non-entity. Significantly, the legitimately expected
suffix after 'Gloar Design Team' of “(Pvt) Limited or Limited” is absent. The
entity cited and pleaded by Plaintiff is a non-entity incapable of suing or
being sued in its own name.
ii.
The further averment in paragraph 1 of the Plaintiff's declaration that
“Plaintiff is a company duly incorporated in terms of the laws of the Republic
operating and carrying on business” is incorrect and denied. There is no
private limited or publicly listed company by that name registered in Zimbabwe
under the Companies Act. The Plaintiff accordingly has no locus standi and
is in want of juristic personality. Plaintiff's claim is fatally
defective.
WHEREFORE,
Defendant prays that Plaintiff's claim be dismissed with costs of suit on a
legal practitioner and client scale.”
In
its replication, filed on 25 November 2011, the plaintiff responded to the
special plea in the following terms:
“Having
regard to provision of Rule 8C of the High Court Rules RGN 1047/71 regarding
proceedings against persons under their trading name, the citation of the
Plaintiff by its trading name is not fatal to the proceedings and hence the
special plea must fail.”
The above
response from the plaintiff was, in my view, correct in law.
At
the commencement of the trial, the plaintiff, as a way of dealing with the
special plea, applied to amend paragraph 1 of its declaration to read as
follows:-
“1.
The plaintiff is a registered Architect by the name of Owen Chikuhuhu trading
as Gloar Design Team whose address for service for the purposes of these
proceedings is care of his undersigned legal practitioners, Messrs Scalen &
Holderness, 13th Floor, CABS Centre, Harare.”
The
application to amend the declaration was strongly opposed.
Counsel
for the plaintiff submitted that the amendment was necessitated by the need to
properly describe the plaintiff. He said there was no intention to
substitute the plaintiff. He said the architect trading under the name
'Gloar Design Team' was Owen Chikuhuhu and that Rule 8C of the High Court Rules
1971, allowed for the said Owen Chikuhuhu to issue summons in his business
name.
Indeed,
Order 2A of the High Court Rules 1971 which was promulgamated under Statutory
Instrument 192 of 1997, came into force on 1 October 1997. Rules 8A, 8B
and 8C thereunder provide, as follows:-
“8A. Naming of associates
(1)
In any proceedings to which an association is a party, any other party may, by
written notice to the association, require a statement of the names and places
of residence of the persons who were the association's associates at the time
the cause of action accrued.
(2) A
person who receives a notice in terms of subrule (1) shall, within five days
after receiving it –
(a)
Furnish the party concerned with a written statement containing the required
information; and
(b) File
a copy of the written statement with the Registrar;
and
the proceedings shall continue in the same manner, and the same consequences
shall follow, as if the associates had been named in this summons or notice
commencing the proceedings:
Provided
that the proceedings shall continue in the name of the association except where
a writ of civil imprisonment is sought against an associate, in which event the
associate shall be specifically named in the civil imprisonment proceedings.
8B. Declaration of persons to be associates
(1)
Where proceedings have been instituted by or against an association in terms of
this Order, the court or a judge may, on court application made by any party to
the proceedings either before or after judgement, declare any person to be an
associate of the association.
(2)
Upon a declaration being made in terms of subrule (1), the proceedings shall
continue in the same manner, and the same consequences shall follow, as if the
person who is the subject of the declaration had been named in the summons or
notice commencing the proceedings.
8C. Proceedings by or against persons under
their trade name
Subject
to this Order, a person carrying on business in a name or style other than his
own name may sue or be sued in that name or style as if it were the name of an
association, and Rules 8A and 8B shall apply, mutatis mutandis, to any such proceedings.”
Clearly, Rule
8C equates a business name to an association.
However,
notwithstanding Rule 8C above, counsel for the defendant persisted that there
was no valid summons before the court. He said the court could not be asked
to amend a nullity.
In
the main, counsel for the defendant relied on Stewart Scott
Kennedy v Mazongororo Syringes (Pvt) Ltd
1996 (2) ZLR 565 (S) and J.D Magro-Consult & Marketing
(Pvt) Ltd v Editor, The Herald & Anor 2007 (2) ZLR 71 (H).
In Stewart Scott Kennedy v Mazongororo Syringes (Pvt) Ltd
1996 (2) ZLR 565 (S), the
Supreme Court stated the following:-
“But
the crucial distinguishing feature is that the institution of the action in the
name of Stewart Scott Kennedy was void ab initio. Without
a plaintiff there can be no claim. A document which purports to be a
summons requiring the defendant to comply with a claim of a non-existent person
is null and void as far as the institution of the claim is concerned. The
plaintiff is the one who issues the challenge to litigation (see Voet 5.1.9)
and must be a persona. If authority is needed for
such an axiomatic statement it is to be found in Kelly v
Petersen 1948 (4) SA 958 (A).”
The
above is a correct exposition of the law prior to 1 October 1997 when Rule 8C
was introduced into our High Court Rules 1971.
In
reading J.D Magro-Consult & Marketing (Pvt) Ltd v
Editor, The Herald & Anor 2007 (2) ZLR 71 (H), I did not find any
reference to Rule 8C - which was already in force. I noted, however, that
there was, in that case, reliance on Stewart Scott Kennedy v
Mazongororo Syringes (Pvt) Ltd 1996 (2)
ZLR 565 (S) - a case which was decided before Rule 8C came into force.
As
submitted by the plaintiff's counsel, Rule 8C was relied upon in the decision
in The Sheriff of the High Court v
Antony William Mackingtosh and 2 Ors
HH330-13. In that case, MATHONSI J said:-
“It
is a celebrated principle of company law that a company, once incorporated,
becomes a fictious person. That is the whole essence of the legal persona principle of our law. To that extent,
therefore, the use of the word “person” in Rule 8C should, of necessity include
an incorporation. In my view, an incorporation which carries on business
in a name or style can be sued in that name or style.”
As already
stated, the Rule actually elevates the business/trade name to an association.
Apart
from being guided by the fact that in terms of our law, as from 1 October 1997,
a party or “person carrying on business in a name or style other than his own
name may sue or be sued in that name or style as if it were an
association,” I readily associate myself with the above enunciation of our
current law on the issue before me.
On
7 October 2011, Owen Chikuhuhu, referred to in the proposed amendment, decided
to sue under his business name, Gloar Design Team, as permitted by Rule 8C. It
cannot therefore be argued that as at that date there was no
plaintiff. The question of a nullity, in my view, is thrown away by Rule 8C. That
being the case, there is a summons and declaration that the plaintiff can
amend. The issue of substitution does not arise, and, therefore, the defendant
is estopped from arguing prescription.
There
has always been a plaintiff….,.
It
is also important to note that Rule 8C must be read together with Rules 8A and
8B. Accepting that Rule 8C treats a business name as an association, I
believe that the plaintiff can legitimately bring this application under Rule
8B(1) which provided as follows:-
“Where
proceedings have been instituted by or against an association in terms of this
Order, the court or a judge may, on court application made by any party to
the proceedings either before or after judgement, declare any person to be
an associate of the association.” …,.
In
casu, the plaintiff seeks to declare that Owen Chikuhuhu is
the person behind the trading name “Gloar Design Team.”
The
applicant wants to amend paragraph 1 of the declaration in order to properly
describe itself. There is no substitution at all because the plaintiff
remains as was when summons was issued. In fact, were it not for the
incorrect description of the plaintiff in paragraph 1 of the declaration, there
would, in my opinion, have been no need for the proposed amendment. I
believe all what the plaintiff is saying is:-
“Whilst
I should have cited myself as Owen Chikuhuhu trading as Gloar Design Team, I
want it to be clearly known that I am the person trading under that name i.e Gloar
Design Team.”
The
law allows him to do that by way of an application as he has done (i.e. Rule
8B(1) above)….,.
I
also want to believe the incorrect description of the plaintiff was made in
error.
Indeed,
at the end of it all, I am asking myself why I have had to write all this when Rule
8C is clear and unambigious. That Rule requires no super legal interpretation.
It simply says a person can, with effect from 1 October 1997, sue and be sued
under the business or trade name he or she operates. There has to be evidence
of the existence of a person and the business name under which the person
operates. That is why Rules 8A(1) and 8B(1) apply.
In
casu, the amendment is being sought under Rule 8B(1) in
order to make the correct declaration of the person who trades under “Gloar
Design Team” so as for the court to determine the real issues of dispute
between the parties.
The
amendment, in my view, does not prejudice the defendant, who has, in any case,
already pleaded to the summons.
The
application to amend the declaration should succeed, and, that being the case,
the special plea cannot be upheld. Our law allows the procedure adopted by
the plaintiff. The trial should proceed on the basis of the pleadings
already filed.
I
therefore order as follows:-
1.
The defendant's special plea is dismissed.
2.
The plaintiff be and is hereby granted permission to amend paragraph 1 of its
declaration so that it reads as follows:-
“1.
The plaintiff is a registered Architect by the name of Owen Chikuhuhu trading
as Gloar Design Team whose address for service for the purposes of these
proceedings is care of his undersigned legal practitioners, Messrs Scalen &
Holderness, 13th Floor, CABS Centre, Harare;”…,.