HIGH COURT OF ZIMBABWE
HARARE, 7 AND 8 FEBRUARY 2011
Plaintiff in person
H. Mukonoweshuro, for defendant
MUSAKWA J: At the close of plaintiff’s case in a relatively short trial defendant’s counsel applied for absolution from the instance plus costs of suit on a legal practitioner and client scale.
The plaintiff issued summons claiming a sum of US $1 315, interest at the prescribed rate on the principal sum from the date of accident to the date of final payment, collection commission at the rate of 30% plus costs of suit. At the commencement of trial the plaintiff had sought not to lead any evidence on the assumption that there were no triable issues. This is despite the fact that at the pre-trial conference he agreed that the issues to be referred to trial were those outlined in the defendant’s pre-trial conference minute. In any event, there was no way the plaintiff could have sought to prove the claim for damages without going to trial.
The issues referred to trial were as follows-
- Whether or not the plaintiff has locus standi to sue the defendant.
- Whether or not Cell Insurance Company paid out the sum of US $1 315,00 to the insured
- Whether or not the plaintiff is entitled to collection costs and if so at what scale/rate.
The plaintiff testified that on 29November 2009 a Toyota Hiace motor vehicle, with registration number ABJ 4615 was involved in an accident. The motor vehicle belonged to Vhungu Rural District Council. The accident was caused by the defendant’s negligence in that he failed to keep a proper lookout and drove without due care and attention. As a result the motor vehicle was extensively damaged and had to undergo repairs. The costs of repairs amounted to US $1 315. The insurers of Vhungu Rural District Council indemnified it in the sum of US$1 170, 00. The defendant paid a deposit fine.
The plaintiff further testified that he operates a debt collection company called Jacynth and Associates. He did not explain whether it is incorporated. Cell Insurance entered into a cession agreement which resulted in the plaintiff taking over the claim against the defendant. It must be noted that the plaintiff did not seek to produce any documentary evidence like the deed of cession, the assessor’s report and the quotations from the vehicle repairers. It seems the plaintiff was relying on the assumption that the documents already form part of the record by virtue of the discovery schedule. This is largely attributable to plaintiff’s misconception of the law as will become apparent when I deal with the application for absolution.
In seeking absolution from the instance Mr. Mukonoweshuro submitted that the plaintiff lacks locus standi. Citing Susan Scott in the The Law of Cession, second edition he submitted that there was no subrogation as claimed by the plaintiff. Thus if there had been subrogation the present proceedings would have been instituted in the insured’s name. In addition, if the insured had ceded its rights to Cell Insurance, the latter would have been able to sue the defendant in its name. However, evidence should have been led that there was cession of the claim from the insured to the insurer.
Mr. Mukonoweshuro also submitted that the plaintiff did not lead any evidence proving the defendant’s liability. The same applies to the quantum of damages claimed. The plaintiff only made reference to the assessor’s report and quotations from garages without producing the documents. In any case it is not like the documents in question could explain themselves. The plaintiff could not have explained the documents himself in the absence of the people who compiled them.
On the other hand the plaintiff submitted that since Vhungu Rural District Council did not cede its right of action to Cell Insurance, the latter were entitled to recover what they paid out in indemnifying Vhungu Rural District Council from the defendant on the basis of the principle of subrogation. He made reference to The South African Law of Insurance by Gordon & Getz.
The law applicable in an application for absolution from the instance is well settled. As was stated by GUBBAY CJ in Walker v Industrial Equity Ltd 1995 (1) ZLR 87 (SC) at p 94-
“The test to be applied in deciding an application for absolution from the instance is well settled in this jurisdiction. It was reiterated recently by this court in United Air Carriers (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S) in these terms:
"A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him."
On the other hand Gordon & Getz in The South African Law of Insurance, fourth edition state at p 257-
“Subrogation means the substitution of one person for another so that the person substituted or subrogated succeeds to the rights of the person whose place he takes. It expresses the insurer’s right to be placed in the insured’s position so as to be entitled to the advantage of all the latter’s rights and remedies against third parties.”
The same authors state that there are two procedures by which an insurer may seek to recover damages attributable to a third party. In the absence of a formal assignment of the right of action by the insured, the insurer who has paid out the loss must sue the third party in the insured’s name. In the absence of subrogation the insured must cede all rights of action against a third party to the insurer in which case the insurer sues the third party in its name.
Applying the above principles, it is evident in the present case that there was no subrogation. If there was subrogation the present action would have been in the name of Vhungu Rural District Council. On the other hand, it has not been shown that Vhungu Rural District Council ceded its right of action against the defendant to the plaintiff. It is immaterial that Cell Insurance purported to cede its right of action to the plaintiff. As Mr. Mukonoweshuro submitted, Cell Insurance could not cede rights it did not have.
Even a look at the letter of cession leaves one doubting its authenticity. It is not signed on behalf of Cell Insurance since it is trite that a corporate entity has no physical attributes of a natural person. Even the diction used in drafting the document is so poor that it can not be associated with an insurance company. Since the plaintiff was all along alive to the challenge to this document, he should have called a witness from that company.
It therefore follows that a court applying its mind reasonably to the evidence lead before this court might not find for the plaintiff. On the issue of costs, it is clear from the defendant’s pleadings that the plaintiff had ample opportunity to lead evidence to prove all the issues raised but chose not to do so. He could as well have withdrawn the matter at the earliest opportunity and saved costs but he doggedly pursued the suit which was fraught with the legal deficiencies that have been highlighted. Even the amount of damages claimed falls within the jurisdiction of the magistrates’ court. In such a situation it would be proper that costs be awarded against the defendant on a higher scale.
In the result it is ordered that-
- Absolution from the instance be and is hereby granted.
- The plaintiff shall pay the defendant’s costs on a legal practitioner and client scale.
H. Mukonoweshuro & Partners, defendant’s legal practitioners.