Judgment No. HB 59/2004
Case No. HC 1504/02
ALESP ENTERPRISES (PVT) LTD
NATURAL STONE EXPORT CO. (PVT) LTD
IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 1 AUGUST 2003 AND 20 MAY 2004
Ncubefor the plaintiff
Ndebelefor the defendant
NDOU J: Sometime in 2001, the Ministry of Local Government, Public Works and National Housing (the “Ministry”) floated a tender for the building of Matope Clinic in Mount Darwin. The plaintiff responded to the said tender and won the tender. The plaintiff’s case is that the defendant agreed with the Ministry that it would bear the costs of building the clinic i.e paying the winning tenderer and supplying the building materials. When the plaintiff had built the clinic up to the third stage (window level) the defendant indicated that it was opting out of the agreement and made part payment for the work done up to that stage. The plaintiff claims $1 841 780,00 for breach of contract. The defendant excepts to the plaintiff summons and Declaration as amplified by the Further Particulars on the following grounds:
“1. Plaintiff’s summons does not comply with rule 11(c) of the High Court of Zimbabwe Rules in that it does not disclose the nature of plaintiff’s claim against defendant.
Plaintiff’s declaration, as implied by plaintiff’s Further Particulars does not disclose a cause of action, more particularly in that:
- Plaintiff claims payment of the sum of $1 841 780,00.
- Plaintiff does not allege that the claim arises from a contract between plaintiff and defendant, the date of such contract or the terms and conditions of such contract, if any.
- Ex faciethe documents relied upon by the plaintiff copies of which are annexed to plaintiff’s Further Particulars, it appears that there was no contract between plaintiff and defendant.”
In essence the basis of the exception is that the plaintiff’s summons and the accompanying declaration fail to make sufficient and material averments as to the legal basis upon which the plaintiff’s claim against the defendant arises. The documents relied upon by the plaintiff do not disclose the basis of the plaintiff’s claim against the defendant. Rule 11(C) of the Rules, supra, provides that every summons shall contain a general statement of the nature of each claim made and of the relief or remedy sought in the action. The defendant submitted that the plaintiff’s summons falls short of this rule, and that such failure is fatal. Accordingly, it is submitted that the summons should be set aside as vague and embarrassing. It is submitted that this defect affects the defendant’s ability to plead and is, therefore prejudicial to the defendant’s case – Allen v Kinsey 1966 RLR 335 (G) and Time Security (Pvt) Ltd v Castle Hotel 1972 (1) RLR 155 (A). In Allen v Kinsey supra at 336A-B, LEWISJ stated –
“The affidavit fails to verify the cause of action, and throw no more light on it than the summons itself. It is essential that the summons should set out properly the cause of action on which plaintiff relies, however, briefly that is done. If the plaintiff sues on an agreement it must appear that there was justa causa for the agreement.”
The summons, in my view, does not set out a valid cause of action as required by the aforesaid rules of this court. Looking closely at the Declaration, it is clear that there is no allegation of fact or law anywhere in the pleading that the defendant entered into an agreement with the plaintiff which forms the legal basis of the plaintiff’s claim. Paragraph 5 of the plaintiff’s Declaration merely alleges that the defendant agreed with the Ministry of Local Government, strictly speaking a third party, that it would bear the costs of the building of the clinic. It is not clear how such an undertaking translates into a contractual relationship between the plaintiff and the
defendant. The pleading as it stands merely makes allegations as to a moral obligation, to a third party (if even that), and not to a contractual relationship between the plaintiff and the defendant. A contract must be specific in detail as to the parties,
the price, and time for performance. The plaintiff’s summons and Declaration fail to particularise these essential averments, thus rendering the pleading vague and embarrassing. The defendant would be prejudiced if it is forced to plead to such a pleading as it would have to read into the pleading what the plaintiff may or may not be alleging – Davidson v Standard Finance Ltd 1985 (1) ZLR 173 (HC). The rules require the plaintiff, in its declaration, to state truly and concisely the nature, extent and ground of the cause of action. In casu, the plaintiff has dismally failed to do so. Before excepting to he plaintiff’s summons and declaration, the defendant afforded the plaintiff an opportunity to put its house in order so to speak, by filing a Request for Further Particulars in this regard. Instead, the plaintiff failed to produce or refer to the agreement relied upon but attached various documents e.g. Tender interview minutes, testimonials by various personae (for the purposes of the tender) permission granted (in writing) by ZANU (PF) and local War Veterans Association to the defendant to quarry granite stones for purposes of building Matope Clinic, letter from the District Administrator, Mount Darwin etc. In fact the letter from the District Administrator, Mount Darwin, representing the Ministry of Local Government gives a different dimension on the relationship between the parties. The District Administrator says inter alia,-
“Please be advised that when you won the tender there was a meeting which was held on 12 September 2001 at Matope Business Centre. The meeting was held between Mr T S Knield of Natural Stone Export Company (Pvt) Ltd and parents of Matope area. The two sides agreed that Mr T S Knield was going to supply the building materials and shall pay the contractor …” (emphasis added)
It seems that the contractual relationship, if any, was between the parents of Matope and Mr T S Knield. All these additional annexures filed by the plaintiff as
Further Particulars do not amplify the cause of action. Furthermore, these annexures to the plaintiff’s Further Particulars are not pleadings. Neither are the plaintiff’s Further Particulars. A party cannot cure a fatal omission in his pleadings through annexures appended to pleadings. Even more so attached to non-pleadings such as Further Particulars. A pleading must stand alone. The plaintiff’s summons and declaration do not stand alone. On the facts, the defendant is entitled to request particulars to enable it to plead. It is entitled to such particulars as will place it in the position of being able to decide whether or not to persist in its defence. The fact that it is able to deny the allegations is not sufficient ground for not supplying the particulars – Tahan v Griffiths 1950 (3) SA 899; Margau v King 1948 (1) SA 124 and Time Security v Castle Hotel supra. There can be no doubt at all that the plaintiff, in response to the request for Further Particulars was obliged to give particulars of the circumstances relied upon in founding the cause of action against the defendant. It should have given the particulars on the existence of the legal or contractual relationship between the parties. In any event no where in these annexures is it alleged that there was a contract between the plaintiff and the defendant and setting out the terms and conditions of such agreement. The defendant is sort of left to guess at the existence of a contract and its terms and condition. These annexures fail to signify how the defendant is involved and in what capacity. They fail to show how contractual rights and obligations flow between the parties, if at all. In short the annexures do not disclose a cause of action upon which plaintiff can rely. The
defendant would therefore be embarrassed and prejudiced if forced to plead to such a vague claim. Consequently, the summons, (as amplified by the Declaration and the
Further Particulars) disclose no cause of action and the defendant exception must succeed – Levenstein vLevenstien 1955 SR 91 at 96-7.
Accordingly, defendant’s exception is upheld and the plaintiff’s claim is dismissed with costs.
Majoko & Majoko, plaintiff’s legal practitioners
Atherstone & Cook,defendant’s legal practitioners