Afrasia Bank Ltd. v Drummond Ranching (Pvt) Ltd & Ors (HC 4342 of 2014; HH 237 of 2017) [2017] ZWHHC 237 (3 April 2017)

1 HH 237-17 HC 4342/14 AFRASIA BANK LIMITED versus DRUMMOND RANCHING (PRIVATE) LIMITED and CHIKASHA INVESTMENTS (PRIVATE) LIMITED and BIG S (PRIVATE) LIMITED and BUBIANA DEVELOPMENT (PRIVATE) LIMITED and JENTEAM HOLSINGS (PRIVATE) LIMITED and MIKEDI (PRIVATE) LIMITED and KENNETH DAVID DRUMMOND and DIANNE MARGARET DRUMMOND HIGH COURT OF ZIMBABWE ZHOU J HARARE, 3 April 2017 & ………………. Absolution from the instance S M Hashiti with him K Kachambwa, for the plaintiff T Zhuwarara, for the respondents ZHOU J: This is an application by the defendants for absolution from the instance at the close of the plaintiff’s case. The plaintiff’s claim which was instituted by way of summons for provisional sentence is for payment of a sum of US$2 506 132-86, together with interest thereon as stated in the summons, collection commission and costs of suit on the attorney-client scale. The plaintiff led evidence from one witness, Michael Macheka who testified to being involved in the transaction giving rise to the claim from inception. After his evidence the plaintiff closed its case, whereupon the defendants, through counsel gave notice of their intention HH 237-17 HC 4342/14 to apply to be absolved from the instance. At that stage Mr Hashiti for the plaintiff also gave notice that should the application be made the plaintiff would seek its dismissal with costs on the legal practitioner and client scale. The law relating to absolution from the instance, to which very little effort was made to refer by Mr Zhuwarara for the defendants, is settled in this jurisdiction. The locus classicus on absolution from the instance is the case of Gascoyne v Paul & Hunter 1971 TPD 170 where, at p 173 the following is stated: “At the close of the plaintiff’s case, therefore, the question which arises for consideration of the court is, is there evidence upon which a reasonable man might find for the plaintiff? And if the defendant does not call any evidence, but closes his case immediately, the question for the court would be, is there such evidence upon which the court ought to give judgment in favour of the plaintiff.” The above test, which has stood the test of time, has been consistently restated and applied on this jurisdiction. In another leading statement on the principles applicable, the court in Supreme Service Station (Pvt) Ltd (1969) v Ford Gooldridge (Pvt) Ltd 1971 (1) RLR 1 (A) at p.5D, BEADLE CJ said: “The test, therefore, boils down to this : Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff? What is a reasonable mistake in any case must always be a question of fact, and cannot be defined with any greater exactitude than saying that it is the sort of mistake a reasonable court might make….” The above test enjoins the court to consider whether on the evidence led on behalf of the plaintiff the court could or might (not should or ought to) find for the plaintiff. A plaintiff, as illustrated by the authorities from this jurisdiction, will successfully withstand such an application if, at the close of its case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might find for it. See Walker v Industrial Equity Ltd 1995 (1) ZLR 87 (S) at 94 C, Supreme Service Station (supra) at 4C-D, United Air Carriers (Pvt) Ltd v Jaruan 1994 (2) ZLR 341 (S) at 343 B – C. In the present case the evidence led establishes the existence of a facility agreement which was reduced to writing. The facility letter states that he plaintiff was to avail to the first defendant, with the rest of the defendants being liable on the basis of the securities given, a sum of US$1 800 000-00. The plaintiff’s witness has testified that the first defendant did access the facility. It is startling for counsel to apply for absolution from the instance in the face of that very basic evidence which has not been rebutted by the defendants. Significantly, too, the mortgage HH 237-17 HC 4342/14 bonds which have not been challenged by the defendants, explicitly state that a certificate of indebtedness signed on behalf of the plaintiff constitutes “sufficient evidence” of the amount owed by the defendants. It does not even speak of “prima facie”, but of sufficient evidence. Such a certificate having been exhibited, it is equally startling how the defendants could genuinely believe that they can be absolved from the instance particularly in view of the principles expressed in the authorities cited earlier on. The plaintiff’s witness gave evidence which as matters stand now, has not been rebutted. It is the kind of evidence upon which a court reasonably applying its mind thereto might or could rely upon to give judgment in favour of the plaintiff. The court has been invited to award a special order of costs – that is – attorney – client costs. That is a primitive order that is awarded sparingly. In the present case the application is clearly misconceived and vexatious, and represents an unacceptable abuse of the procedures of this court. The vexatiousness of a claim is a ground for awarding such costs. The evidence referred to earlier on is such that an attempt to seek absolution from the instance at this stage is a clear abuse of the procedures of this court. As to whether costs for additional counsel are justified, the court is of the view that given the fact that this is a simple matter there was no need for additional counsel to be retained. The authorities relevant to any case are matters that counsel who is seized with a matter must always be ready with when he appears in court. I am not therefore, persuaded that the defendants should pay the costs for the additional counsel who was only involved at the stage of this application. In the result, IT IS ORDERED THAT: 1. 2. The application for absolution from the instance be and is hereby dismissed. The defendants, jointly and severally, the one paying the others to be absolved, shall pay the plaintiff’s costs relative to the application for absolution from the instance on the attorney – client scale. Mambosasa, plaintiff’s legal practitioners Messrs GN Mlothswa & Company, defendants’ legal practitioners