Nuvert Trading (Pvt) Ltd.v Hwange Colliery Co. (HC 370 of 2013) [2015] ZWHHC 791 (14 October 2015)

1 HH 791/15 HC 370/13 NUVERT TRADING (PRIVATE) LIMITED t/a TRIPLE TEE FOOTWEAR versus HWANGE COLLIERY COMPANY HIGH COURT OF ZIMBABWE MATHONSI J HARARE, 6 OCTOBER 2015 & 14 OCTOBER 2015 Opposed Application Ms S. Vas, for the applicant T. Zhuwarara, for the respondent MATHONSI J: On 16 January 2013 the applicant issued summons in which it cited the defendant as “Hwange Colliery Company”, for payment of $59 590-13 plus interest at the prescribed rate and collection commission being the purchase price of safety shoes allegedly supplied at the instance of that entity. The face of the summons is defective in that it does not comply with r 11 (c) of the High Court of Zimbabwe Rules, 1971 as it does not contain a general statement of the nature of the claim and the relief or remedy sought in the action. But then, the failure to comply with r 11(c) is not the main subject of the present inquiry, the respondent not having excepted to the summons by reason of that defect. To the summons was attached what the applicant termed “particulars of claim” as opposed to a declaration. The applicant must have realised early that its summons had defects not only in that the particulars of claim attached to the summons should have been headed “declaration” but also that the name of the defendant was incomplete. The proper citation of the defendant should be “Hwange Colliery Company Limited.” The word “Limited” was omitted. It then sought the indulgence of the respondent to amend the pleadings to address those anomalies but the respondent refused to consent to such amendment. The applicant has been forced to make this application for an amendment to add the word “Limited” in the name of the defendant, to HH 791/15 HC 370/13 substitute “declaration” for “particulars of claim” to add a few averments to para 3 of the declaration and effectively to substitute the figure of $67 931-14 in respect of the value of the goods sold to the respondent. The application is opposed by the respondent on the grounds that the party cited in the summons; “Hwange Colliery Company”, does not exist and as the applicant has sued a non- existent party the summons does not have a defendant and is therefore a complete nullity. The summons is also a nullity, it is argued, because it does not contain a true and concise statement of the claim in breach of r 11 (c) of the court rules. Finally, the respondent took the view that the amendment sought is prejudicial to it in that it “substantially changes the complexion of the case which it is to meet”. The evidence that has been placed before me shows that by a certificate of change of name, Form C2, dated 8 November 2004 the name Wankie Colliery Company Limited was changed following a special resolution to Hwange Colliery Company Limited. Therefore the true name of the respondent is Hwange Colliery Company Limited. As I have already said, in citing the defendant in the summons the applicant omitted only the appellation “Limited” and it now seeks to have it added. In advancing the argument that the summons does not have a defendant and is therefore a nullity which cannot be saved by an amendment, Mr Zhuwarara who appeared for the respondent relied on the authority of JDM Agro – Consult & Marketing (Pvt) Ltd v Editor, The Herald & Anor 2007 (2) ZLR 71 (H) 75 B – D in which Gowora J (as she then was) remarked that: “It is pertinent to state from the outset that the application to amend the summons by altering the name of the second defendant which was granted at the pre-trial conference was without effect. The party named as the second defendant did not exist at the time that the summons was issued and served. The correct appellation is Zimbabwe Newspapers (1980) Ltd. That is a registered company, duly incorporated under the laws of this country. It’s coming into being is due to the process by which it was incorporated as such. It is then, after incorporation, that it becomes a juristic person, capable of suing and being sued in its own right. Without that process it is non- existent. The entity sued by the plaintiff as the second defendant is The Herald Newspaper. It is not a registered company and does not exist in any other form. Consequently, the plaintiff issued summons against a non-existent being. The amendment to the second defendant’s name therefore was of no force and effect as the summons itself was a nullity. In Gariya Safaris (Pvt) Ltd v Van Wyk (1996 (2) ZLR 246 (H)) this court stated: ‘A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the HH 791/15 HC 370/13 names in the summons as being those of the defendant, the summons is null and void ab initio’” The learned judge went on to pronounce at 75 G; 76A that : “It matters not, in my view, that the two defendants entered appearance to defend and proceeded to file a plea. The process of filing pleadings under those names would not have imbued the summons with any form of legality. There was no summons for them to plead to given that there were no persons answering to the names on the summons. They cannot be identified as such. This is not a mis-description which can be amended by alteration of the names on the summons, nor is it a substitution. One cannot amend or substitute something which does not exist.” (The underlining is mine). I must say that in that case the plaintiff had cited the first defendant as “The Editor, The Herald” and the second defendant as “The Herald”. Both did not exist because, as the court correctly concluded the editor of a newspaper is an occupation which may be occupied by an individual at any one time, which occupant changes from time to time. The citation was irregular. The plaintiff should have cited the name of that editor. As for the second defendant, “The Herald Newspaper”, it was a non-existent entity because the correct defendant was the Zimbabwe Newspapers (1980) Limited, which is the company responsible for the publication and circulation of the newspaper known as the Herald. There was therefore no way of saving that summons. I should also relate to the case of Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (H) which was relied upon by Gowora J (as she then was) in JDM Agro-Consulting & Marketing (Pvt) Ltd, supra. In that case the applicant had obtained judgment against a non-existent company. The respondent, who had signed, the deed of surety accepted personal liability. The applicant sought an order to amend the judgment by substituting the respondent for the non- existent company but the respondent did not consent to the substitution. Malaba J (as he then was) stated at 252G: “The plaintiff is, of course, entitled to choose the person against whom to proceed and leave out any person, against whom it does not desire to proceed. A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the names written in the summons as being those of the defendant, the summons is null and void abinitio.” He went on at 253 C – D: HH 791/15 HC 370/13 “In this case, the person against whom the plaintiff thought it was proceeding as a defendant was non existent at the time summons was issued. The proceedings and judgment that followed the summons were null and void. To try an action in which there is only one party is an exercise in futility. There were no two parties to give rise to the existence of a cause of action between them. There was nothing to be substituted as a new judgment debtor. There was no old judgment debtor.” See also Old Mutual Asset Management (Pvt) Ltd v F & R Travel Tours & Car Sales 53/07 (unreported). Those cases are clearly distinguishable from the present case and reliance on them is completely misplaced. In both cases, there was no defendant at all and the court correctly found that no amendment could be made to a non-existence summons given that a summons is only valid if it has a defendant to answer to it. In the present case it cannot be said, by any stretch of the imagination, that the defendant does not exist because there is an entity answering to that name. The only omission was the word “Limited” which is an expression speaking to its limited liability status than anything. The amendment sought relates to completeness of the name as opposed to introducing a new persona to a summons originally without a defendant. Mr Zhuwarara referred me to an authority which is not favourable to his case and I commend him for that. It is the case of Masuku v Delta Beverages HB 172/12 in which Cheda J quoted with approval the remarks of Wessels J in Van Vuuren v Braun and Summers 1910 TPD 950 at 955 that : “Now in order to bring a defendant legally into court a summons is required. In order that the summons may be valid it must comply with the requirements of r 6. It must purport to be a summons, a mere request or letter to the effect that the defendant is kindly requested to appear in court on a certain day is an invalid citation. Next the summons must specify the defendant. It is true that it will not be described as accurately as he should be. If a man is baptized “George Smith” it is no defect to call him “John Smith” because the individual is pointed out with sufficient accuracy. But if there were no mention of the defendant at all the summons would be a wholly worthless document and could not be amended by inverting the defendant’s name in court.” Cheda J went on to conclude that : “In casu the entity against whom applicant has sued is said to be non-existent. The argument is grounded on the fact that the citation omitted the full description of the respondent. The crucial question that [irresistibly] begs an answer is, to what extent does the omission affect the identification of the respondent? Respondent is a well-known blue chip company whose fleet of cars are all over our national and domestic roads and its commercial advertisements need no introduction. In other words Delta Beverages is known here and beyond. To me, applicant may have technically erred in her description, but has described respondent with sufficient clarity to an HH 791/15 HC 370/13 extent of eliminating any mistake either legal or factual of respondents identity. Applicant sufficiently described respondent.” In that matter the respondent had been cited as Delta Beverages instead of Delta Beverages (Pvt) Ltd its registered name. That defective description was upheld. I am also mindful of the fact that in terms of r 8C of the High Court of Zimbabwe Rules, 1971 a person carrying on business in a name or style may sue or be sued in that name or style as if it were the name of an association. So the sin of omitting the appellation “Limited” in the citation pales in that regard. In my view, the applicant is entitled to make the amendment in order to correctly and completely cite the respondent. Then there is the question of failure to give a concise statement of the nature of the claim and the relief sought on the face of the summons. Rule 11(c) requires that the summons must contain: “a true and concise statement of the nature, extent and grounds of the cause of action and of the relief or remedies’ sought in the action.” Clearly the summons which says, “A statement of the plaintiff’s claim is set out in the declaration, a copy of which is annexed to this summons”, does not meet the requirements of r 11(c). I said earlier that the issue does not form the main subject of the present inquiry because the applicant has not sought to amend the summons to comply with r 11(c). However, the respondent mentions that defect in augmenting its argument that the summons is a nullity. I do not agree. Ordinarily such a defect would be dealt with by way of an exception or special plea. The respondent has not excepted or filed a special plea. In any event, even were such an exception be made, if upheld, the plaintiff would be afforded an opportunity to amend the summons within a fixed period of time. It would not amount to an outright dismissal of the claim : Alder v Elliot 1998 (2) ZLR 283 (S) 292B; Auridiam Zimbabwe (Pvt) Ltd v Modus Publications (Pvt) Ltd 1993 (2) ZLR 359 (H) 373 C – D; Murozvi Chawatama Signs & Ors HH 481/15. The other amendments sought by the applicant are routine and usual amendments which a litigant is entitled to make in the normal course of pleading and r 132 allows a party to amend a pleading anytime before judgment is delivered. In Whittaker v Roos & Anor 1911 TPD 1092 at 1102 – 3, the point was made that the business of pleading is not a game where if a mistake is HH 791/15 HC 370/13 made, the forfeit is taken. The real dispute between the parties is the main concern of the court which will allow an amendment which helps to ventilate that. What the court has regards to in deciding whether to allow an amendment or not was succinctly set out in UDC v Shamva Flora (Pvt) Ltd 2000 (2) ZLR 210 (H) 217 C – F namely; 1. 2. The court has discretion whether to grant or refuse an amendment. An amendment cannot be granted for the mere asking but some explanation must be offered therefore. 3. The applicant must show that prima facie the amendment has something deserving of consideration, a triable issue. 4. The modern tendency is that the court will generally grant an amendment if it facilitates the proper ventilation of the dispute between the parties. The party seeking it must not be mala fide. It must not cause an injustice to the other party which cannot be compensated by costs. The amendment should not be refused simply as punishment to the applicant for neglect. A mere loss of time is no reason in itself to refuse the application. If the amendment is not sought timeously some reason should be given. 5. 6. 7. 8. 9. See also Commercial Union Assuarance Co Ltd v Waymark N. O 1995 (2) SA 73 at 77 F – I; Kingdom Merchant Bank Ltd v Shah & Anor HH 159/13. Taking into account all the foregoing guidelines and in the exercise of my discretion, I am of the view that the amendment sought should be granted. In the result, it is ordered that: The applicant’s summons and declaration are amended to read as follows: 1. The citation of the defendant is hereby amended to read Hwange Colliery Company Limited. 2. The caption of the declaration reading “Particulars of claim” is deleted and in its place is substituted the word “Declaration”. 3. Paragraph 2 of the declaration to read Hwange Colliery Company Limited where the name Hwange Colliery Company appears. 4. In para 3 of the declaration is added the following: HH 791/15 HC 370/13 “The agreement between the parties was oral. Pursuant to the agreement, plaintiff then supplied in three batches in November 2011, December 2011 and January 2012, Tripple Tee low cut safety shoes.” By the deletion of the whole of para 5 of the declaration and its substitution with the following: 5. “5. The total value of $67 931-14 was supposed to be paid within thirty (30) days after date of delivery of the safety shoes.” 6. By the addition of a new para 6 to read: “6. Defendant breached the agreement by not paying the total of $67 931-14 due to the plaintiff within the agreed time period.” 7. 8. Paragraph 6 becomes paragraph 7. The costs of this application shall be costs in the main cause. Scanlen & Holderness, applicant’s legal practitioner’s Mawere and Sibanda, respondent’s legal practitioner’s