ZIYAMBI
JA:
On
the 25 February 2014, the respondent (Luxor), as the plaintiff,
issued simultaneously a summons and a declaration claiming, inter
alia:
“(a)
Cancellation of the lease agreement between the Plaintiffs and the
Defendants on the 31st
January
2005;
(b)
Payment of the sum of US$11,127.55 being arrear rentals, operational
costs, and rates
as
at
25
January
2013,
for
Shop
1
Luxor
House,
Fife
Street/9th
Avenue,
Bulawayo;
(c)
Eviction of the Defendant(s) from Shop 1 Luxor House Fife
Street/9thAvenue, Bulawayo together with all those who claim title
through
him;
(d)
Payment of holding over damages of US$1,000.00 per month calculated
from 1st January
2013 to the date of eviction and/or cancellation of the lease
agreement;
(e)
Costs of suit on a client Attorney (sic)
scale.”
On
11 March 2013 the summons were served on the appellants by the Deputy
Sheriff Bulawayo who explained to them the exigencies thereof.
No
appearance to defend was entered.
On
4 April 2013, Luxor applied for default judgment. The matter was duly
set down for hearing on the roll of unopposed matters and, on 11
April 2013, default judgment was granted by the High Court as prayed
save that costs were granted on the ordinary
scale.
On
22 April 2013 a Writ of Execution and Ejectment was served on the
appellants by the Deputy Sheriff. The date of ejectment was set for
the 25 April 2013.
Certain
items of movable property as well as a motor vehicle were attached
and removed by the Deputy Sheriff pending their sale in execution on
the 9 May
2013.
On
29 April 2013, the appellants were evicted in terms of the
writ.
On
7 May 2013 the appellants filed a court application for rescission of
the default judgment. They based their application on Order 49 Rule
449(1)(a) of the High Court Rules1.
They
alleged that the default judgment was erroneously granted in that it
disclosed no cause of action. In particular, they alleged that there
was no allegation in the declaration of a breach of the lease
agreement nor was there a computation as to how the amount claimed
was arrived
at.
The
application was opposed by Luxor whose opposing affidavit was deposed
to by one Simon Moyo, a partner in Knight Frank estate agents, who
are the letting agents of Luxor.
He
averred that he was authorized to depose to the affidavit on behalf
of Luxor and could swear to the facts.
He
denied that the judgment was erroneously given and alleged that not
only were the averments in the summons and declaration sufficient to
sustain the cause of action alleged, which was a failure to pay rent
and operational costs, but that documentary evidence in the form of a
schedule of payments by the appellants, deeds of suretyship signed by
the second and third appellants, and a schedule showing the balance
outstanding as at January 25, 2013 were produced to the Court which
granted the application for default judgment.
The
appellants, it was alleged, had followed the wrong procedure and
should have brought their application in terms of Rule 63 of the
Rules.
Their
failure to take action after service of the summons coupled with
their inaction even when they were served with the writ of execution
and eventually evicted on 29 April 2013, was a clear indication that
they had no defence
to Luxor's
claim.
In
their answering affidavit the appellants alleged that the opposing
affidavit of Simon Moyo was not properly before the court in that he
had no authority (in the form of a resolution by Luxor) to act on
behalf of Luxor.
Further,
there was no need for the appellants to enter
appearance
to
defend
because
upon
receipt
of
the
summons
they
approached
Luxor
and
the
parties reached an agreement that the court process be stayed as an
agreement to settle the rental arrears was reached.
One
notes, in passing, that the fact that the rentals were in arrears was
accepted by the
appellants.
The
learned Judge found no merit in the application and dismissed it with
costs, hence this
appeal.
THE
APPEAL
Two
main points were taken by the appellants. They were:
(i)
That, the court a
quo
erred
in dismissing the application when there was clearly no cause of
action; and
(ii)
Secondly, that the deponent of
Luxor's opposing
affidavit had no authority to represent the respondent since not only
had no resolution of the directors of Luxor been produced authorizing
him to do so but in addition, one Mr Stirling, whom the appellants
alleged to be a director of Luxor, had instructed Knight Frank not to
proceed with the matter against the appellants.
The
second point was taken in
limine
and
I deal with it
first.
THE
AUTHORITY OF MR
MOYO
It
was submitted on behalf of Luxor that Mr Moyo
was
not the litigant but had merely deposed to the affidavit in terms of
the High Court Rules as one who could attest to the facts since he
had represented Knight Frank as agent for Luxor in most of the
dealings with the appellants in connection with the
lease.
In
my
view
the criticism leveled against the respondent in this regard is
misplaced.
The
appellants served the court application on the legal practitioners
for Luxor. The legal practitioners in question had been acting on
behalf of Luxor in the past proceedings between the parties.
It
is
trite that a company being an artificial person must be represented
by a legal practitioner.
All
that Luxor was called upon to do in response to the application filed
by the
applicants
was
to
file
a
notice
of
opposition
in
Form
No.29A
together
with
one
or
more
opposing affidavits2.
This
is what it did.
The
notice of opposition was filed by its legal practitioners.
The
appellants cannot blow hot and cold. By serving the application on
Luxor's legal
practitioners they have accepted that Luxor is represented by its
legal practitioners in the litigation. They cannot now deny that
Luxor is the party litigating.
The
affidavit by Simon Moyo is merely an accompanying affidavit filed in
terms of Rule
233.
The
court a
quo
was
attacked for accepting the affidavit sworn by Simon Moyo whereas it
rejected the letter of a Mr Stirling who, it is alleged, had
instructed Knight Frank not to proceed with the case against the
appellants.
The
two positions can hardly be compared for, as the learned Judge found,
the letter had no evidential value as it was not supported by an
affidavit from Stirling confirming that he had written the letter and
had authority to do so.
In
any event if Stirling did have such authority, it would have been a
simple matter to have withdrawn the action against the appellants
since the letter is dated 13 March 2013 two days after the summons
commencing action was served on the
appellants.
WAS
THE JUDGMENT ERRONEOUSLY SOUGHT OR
GRANTED?
The
appellants claim was based on Rule
449(1)(a) which
provides:
“(1)
The
Court or Judge may, in addition to any power it or he may have, mero
motu
or
upon the application of any party affected, correct, rescind or vary
any judgment or
order
-
(a)
That was erroneously sought or granted in the absence of any party
affected thereby…”
The
learned Judge found as
follows3:
“A
reading of the summons paragraph (a) thereof shows that the parties
entered into a lease
agreement on 31 January 2005, and it shows that as at 25 January 2013
the Defendants were in arrears to the tune of 11,127-55.
Whilst
the summons is not drafted in the best of terms, it does state that
the basis of the claim is due to the fact that the Defendants are in
arrears prompting Plaintiff to seek cancellation of the agreement in
question.
The
summons, even before one proceeds to read the declaration, which is
the one the Applicant seems to have problems with, can be understood
as to the claim that is being made by the Plaintiff and its basis.
It
would have been proper for the applicant to have entered an
appearance to defend and either request for further particulars or
file an exception which the court was then going to deliberate upon,
than to sit back and take it that the court would consider the
summons
defective and fatally flawed…”
She
concluded that the application ought not to have been brought in
terms of Rule 449 but rather in terms of Rule 63 as there was no
error on the Court's
part justifying the relief sought.
Rule
449 has been invoked, among other instances:
(i)
Where there is a clerical error made by the Court or Judge4;
(ii)
Where entry of appearance had been entered but was not in the file at
the time that default judgment was entered5;
(iii)
Where, at the time of issue of the judgment, the Judge was unaware of
a relevant fact namely a clause in an acknowledgement of debt6.
Although
for other reasons, mainly the inordinate delay in making the
application, the court in Grantully
declined
to grant the remedy sought, it was of
the
view that had the
clause
been
brought to the attention of the Judge, the default judgment would not
have been
granted.
Where
applicable, the Rule provides an expeditious way of correcting
judgments obviously made in error.
It
envisages
the party in whose absence the judgment was granted being able to
place before the Court the fact or facts which were not before the
Court granting the judgment.
There
is no need for the applicant to establish good and sufficient cause
as required by Rule
63.7
However,
in each case, the error or mistake relied upon must be proved8
and
in each case the court exercises a
discretion.
Turning
to the instant matter, I agree with the court a
quo
that
the appellants failed to prove that the judgment was erroneously
granted.
In
any event, Rule 449 is not mandatory but confers upon the Court a
discretion to act in terms thereof.
There
being no allegation, or finding by this Court, that there was an
improper exercise of its discretion, this Court would be unable to
interfere with the judgment of the court a
quo.
It
is for the above reasons that after the hearing we dismissed the
appeal with costs.
HLATSHWAYO
JA: I
agree
MAVANGIRA
AJA: I
agree
Job
Sibanda & Associates,
appellant's legal
practitioners
Messrs
Dube-Tachiona & Tsvangirai, respondent's legal
practitioners
1.
High Court Rules,
1971
2.
Rule 233(1) of the High Court
Rules
3.
Page 3 of the judgment
4.
City of Harare v Cinamon 1992 (1) ZLR
361
5.
Banda v Pitluk 1993 (2) ZLR 60
6.
Grantully (Pvt) Ltd 2000 1 ZLR 361
(S)
7.
Banda v Pitluk
(supra)
8.
Gondo and Anor v Syfrets Merchant Bank 1997 (1) ZLR
201
