The
first and second plaintiffs are husband and wife. The first defendant
is a businessman whereas the second defendant is a firm of lawyers
duly registered in terms of the laws of this country.
On
9 September 2004, the plaintiffs applied to the High Court for an
order compelling the first defendant to pass transfer of Stand Number
43 being the remaining extent of Stand Number 20 Carrick Creagh
Township 2 of Carrick Creagh of section 4 Borrowdale Estate, Harare
measuring 5,347 square metres.
The
plaintiffs' claim found no favour with the High Court which
dismissed their claim on 28 September 2005. Aggrieved by that
decision they appealed to the Supreme Court, which, in turn,
dismissed the appeal on 19 June 2006.
In
their initial claim, the plaintiffs did not claim damages as an
alternative to specific performance. It was only after they had lost
their case on appeal that the plaintiffs, almost as an after thought,
decided to sue the defendants for damages in lieu of specific
performance. The defendants were then met, among other things, with
the special plea of prescription and res
judicata.
It
is convenient to determine the issue of prescription first because if
it is found that the plaintiffs' cause of action has indeed
prescribed it may not be necessary to determine all the other
remaining issues.
In
terms of section 15(d) of the Prescription Act [Chapter 8:11] a debt
arising out of a contract of sale prescribes after a period of three
years. In terms of section 16(1) prescription begins to run as soon
as a debt becomes due.
Section
2 of the Prescription Act defines a debt as including:
“Anything
which may be sued for or claimed by reason of an obligation arising
from statute, contract, delict or otherwise.”
In
this case, the plaintiffs' claim arose from an alleged breach of
the contract of sale which occurred sometime in 2003 when the first
defendant failed to deliver or effect transfer of the Stand which
they had fully paid for.
The
issue which arises for determination is whether the issuing of
judicial process, on 9 September 2004, interrupted the running of
prescription. Sections 19(2) and (3) of the Prescription Act provide
for the interruption of the running of prescription as follows:
“(2)
The running of prescription shall, subject to subs (3), be
interrupted by the service on the debtor of any process whereby the
creditor claims payment of the debt.
(3)
Unless the debtor acknowledges liability, the interruption of
prescription, in terms of subs (2), shall lapse and the running of
prescription shall not be deemed to have been interrupted, if the
creditor –
(a)
Does not successfully prosecute his claim under the process in
question to final judgment; or
(b)…,.”
It
is an established fact and a matter of common cause that the
plaintiff issued summons against the defendants on 9 September 2004
thereby interrupting the running of prescription by juridical
intervention. The plaintiffs however did not successfully prosecute
their claim, both in the High Court and Supreme Court, with the
result that the interruption of prescription lapsed on 19 June 2006
when they lost their claim in the Supreme Court and the running of
prescription was then deemed not to have been interrupted.
As
the prescriptive period of three years has long expired I have no
option but to hold that the plaintiffs' claim against the
respondents has since expired by effluxion of time.
Looked
at from a different angle, the plaintiffs never issued summons
against the respondents claiming damages for breach of contract until
they lost their case in the Supreme Court on 19 June 2006. Granted,
they issued summons against the respondents on 9 September 2004 but
that was for specific performance in the form of transfer of the
disputed property and not damages for breach of contract.
With
respect, a claim for transfer does not, in my view, without more,
convert into a claim for damages in breach of contract for the two
claims are separate and distinct such that one cannot be substituted
for the other. Looked at from that perspective one can only hold that
by the time the plaintiffs issued summons claiming damages for breach
of contract the cause of action had already prescribed.
Res
judicata
Having
already decided that the plaintiffs' claim against the respondents
has already prescribed, it is really not necessary to determine this
issue. I however proceed to determine it just in case I might be
wrong on the issue of prescription.
The
plaintiffs' cause of action arises from the alleged breach of
contract of sale of a certain piece of land known as Stand Number 43
being the remaining extent of Stand Number 20 Carrick Creagh Township
2 of Carrick Creagh of section 4 Borrowdale Estate, Harare measuring
5,347 square metres. They allege that they bought the Stand from the
first defendant.
On
9 September 2004, the plaintiffs issued summons against the first
respondent and one Charles Masimba Chihumbiri and the Registrar of
Deeds seeking relief for breach of contract under case number
HC10863/04.
The second defendant was not party to those proceedings.
In
his ruling KAMOCHA J had this to say:
“I
also find that the purchasers withdrew the purchase price they had
paid in United States dollars in breach of the verbal contract which
the seller had the right to cancel pursuant to that breach.
In
the result I would dismiss the application with costs.”
In
short, this court has already determined:
1.
That it is the plaintiffs who breached the contract of sale and not
the first defendant;
2.
That the first defendant lawfully terminated the contract of sale for
breach of contract; and
3.
That the plaintiffs claimed and were refunded the purchase price.
The
above determination has been upheld and confirmed by the Supreme
Court. That Court, being the Court of last resort, that determination
has become firm and binding for all time.
The
requirements for the plea of res
judicata
were restated by SANDURA JA in the case of Banda
& Ors v ZISCO
1999
(1) ZLR 34. In
that
case it was held that:
“1.
The action must be between the same parties.
2.
Concerning the same subject matter.
3.
Founded on the same cause of complaint as the action in which the
defence is raised.”
As
already stated, this court and the Supreme Court have already
determined that both plaintiffs were in breach of the contract upon
which they intend to sue the defendants. Both courts have also
determined that the first defendant lawfully terminated the contract
of sale and refunded the purchase price.
Thus,
the cause of action relating to the sale of the property between the
plaintiffs and the first defendant has been settled by the courts.
The matter is now res
judicata
between the parties in relation to the abortive sale of the property
in dispute. There can be no further action between them on the same
issue.
It
does not seem, however, to matter much that the second defendant was
not a party to the initial proceedings because it appears to me that
the second defendant's liability was dependent upon the validity of
the contract in question. The courts, having already determined that
the contract was invalid, it can hardly be said that anyone was at
fault in influencing the abortion of an invalid contract. Thus, the
plea of res
judicata,
as pleaded by the first defendant, has a direct bearing on the
outcome of the plaintiff's claim against the second defendant
though that defence is not available to him by virtue of not having
been a party to the initial proceedings.
Although
the defence of res
judicata
may not be available to the second defendant, the defence of
prescription as specially pleaded by both defendants is unassailable.
In
the result, it is ordered that the plaintiff's case be and is
hereby dismissed with costs.
