Nhau v Kafe & Anor (HC 6337 of 2014) [2015] ZWHHC 73 (27 January 2015)

1 HH 73-15 HC 6337/14 FUNGAI NHAU versus MEMORY KAFE and CHIPO NKUDZI HIGH COURT OF ZIMBABWE MATHONSI J HARARE, 21 & 28 January 2015 Special Plea in Bar/Abatement T. Kanengoni, for the plaintiff E. Z Mapendere, for the defendants MATHONSI J: The 2 defendants have taken a “plea in bar/abatement” against a claim brought against them by the plaintiff seeking an order for their evection from Stand 11347 Joseph Msika Housing Co-operative Hatcliffe Harare and costs of suit. In his declaration the plaintiff pleaded in relevant part as follows:- “4 5. 6. 7. 8. 9. In or about November 2006, plaintiff was allocated Stand No 11347 Joseph Msika Housing Co-operative Hatcliffe by Joseph Msika Co-operative Ltd, a member of the Harare North Housing Co-operatives Union Ltd. Plaintiff duly paid for the land, road, sewer and water reticulation services in respect of the allocated stand. The plaintiff after being authorised by the Co-operative, proceeded to effect improvements on the property by excavating the foundation, concrete footing and erected the foundation and a four (4) roomed house. Sometime in September 2012, the defendants unlawfully and violently evicted the plaintiff together with his family and took occupation of the property together with the improvements. The stand is registered in the name of the plaintiff in the City of Harare and Joseph Msika Housing Co-operative Ltd records. There being no contractual relationship between defendants and either the plaintiff or Joseph Msika Housing Co-operative Ltd or Harare North housing Co-operative Union, the plaintiff therefore seeks an order divesting the HH 73-15 HC 6337/14 defendants of possession and use of the property and vesting the same with the plaintiff. 10. The defendants have, despite demand by the plaintiff, refused and/or neglected to vacate the property.” The defendants, as I have stated, have taken issue with that claim and in their long winding “special plea in bar/abatement” filed in terms of r 137 of the High Court of Zimbabwe Rules, 1971, the defendants aver that the plaintiff does not have locus standi in judicio to bring the action for eviction as the land in question is unalienated state land and only the state can institute such eviction action. As the plaintiff is not an agent of the state, has no real rights over the land and the purported sale of the land to him by the co-operative is a nullity since there is no deed of transfer that was executed, the plaintiff cannot sue for eviction. The second basis for the bar is that the plaintiff has not exhausted domestic remedies available to him given that there is a dispute between Joseph Msika Housing Co-operative which sold the land to the plaintiff and another co-operative, Casa Nova Housing Co- operative which allocated the same piece of land to the second defendant. I n light of that, there being a dispute between two registered co-operatives, it should be resolved in terms of s(s) 115 and 116 of the Co-operative Societies Act [Cap 24:05]. Thirdly the defendants averred that the order that the plaintiff seeks is impossible of performance by reason that Stand 11347 from which eviction is sought does not exist given that the land in question is yet to be surveyed in terms of the Land Survey Act [Cap 20:12]. I must hasten to point out that, after exchanging a few “war stories” with Mr Mapendere who appeared for the defendants he quickly abandoned the third leg of the plea in bar having rightly accepted its lack of merit. It is in respect of the first 2 objections that I must decide. The rules of court providing for a plea in bar are there for a purpose. They are certainly not designed to provide sanctuary to litigants bent on evading law suits. They are for genuine ones who desire to dispose of those actions which should not detain the court because they can be disposed of on substance as opposed to merit. In fact r 137 (1) (a) under which the plea in bar has been made provides: “A party may take a plea in bar or in abatement where the matter is one of substance which does not involve going into the merits of the case and which, if allowed will dispose of the case.” (The underlining is mine) HH 73-15 HC 6337/14 Legal practitioners should be reminded the these remedies are not to be abused for dilatory purposes or for buying time where one has not fully constructed the defence which the defendant has against the action. The first question that a legal practitioner should ask before rushing to prepare such a plea is whether, if allowed, it will dispose of the case. It is irresponsible to just present a plea which has no earthly chance of bringing finality to the matter or, as is the case in casu, is long winding, confusing and creates a dispute of facts as cannot possibly be decided without resort to evidence. The mere fact that the averments in such a plea are disputed should be enough to dissuade the litigant from raising it. While still at that, it is time to remind legal practitioners once again, that in formulating pleadings they should always bear in mind the purpose of pleading. The essence of any claim is found in the pleadings whose function is to inform the parties of the points of issue between them to enable them to know in advance what case they have to meet, to assist the court define the limits of the action and to place the issues on record: Matewa v Zimbabwe Electricity transmission and Distribution Company (ZETDC) HH 304/13; Beck’s Theory and principles of Civil Actions ed 5 at p 32. By definition, pleadings must be concise and to the point. They must identify the branch of the law under which the claim or defence to it is made and should not contain evidence. Pleadings which are long winding and argumentative should not find their way to these courts. It is a serious dereliction of duty for legal practitioners to continue, presenting such offensive pleadings when they have the aid of literature guiding the drafting pleadings. I associate myself fully with the sentiments of MAKARAU JP (as she then was) in Chifamba v Mutasa & Ors HH 16/08 (unreported) that:- “Legal practitioners are urged to read on the law before putting pen to paper to draft pleadings in any matter so that what they plead is what the law requires their clients to prove to sustain the remedy they seek---------. Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.” We have a situation in which the lengthy plea in bar is not only at variance with acceptable standards of pleadings, it also raises controversial, argumentative and indeed disputed allegations which should not be contained in such a pleading. On the issue of locus standi the plaintiff has stated in his declaration that he was allocated a stand by a co-operative in consideration for payment of money. The stand is registered in his name at the Municipality of Harare. Inspite of all that, the defendants HH 73-15 HC 6337/14 “unlawfully and violently evicted” him from the property after he had already effected improvements, a clear act of spoliation. In my view there can be no better way of establishing locus standi in judicio. The defendants then come up with the argument that it is state land and that it is the state which should litigate, while not even attempting to deny the alleged act of spoliation. Are we to understand the defendants to say that the court should turn a blind eye to an alleged illegality merely because it was perpetrated on unalienated state land? Or that self-help is acceptable as long as the land has not been surveyed? It is remarkable that the plaintiff insists that the land was not only surveyed and clearly marked on a general plan, DG 3843 and as such it is no longer unalianated but also that there is correspondence from the Ministry of Local Government, Public Works and Urban Development confirming the allocation of stands, including that of the plaintiff, to co- operatives. I agree with Mr Kanengoni for the plaintiff that, as a member of a co-operative allocated the stands, the plaintiff would have locus standi to vindicate. A party instituting proceedings is only required to show that he has an interest or special reason which entitles him to bring such proceedings: Stevenson v Min of Local Government & National Housing & Ors S 38-02. In my view the pleadings establish the plaintiff’s real and substantial interest to commence proceedings against the defendants. The issue of the dispute between 2 co-operatives over the same stands which Mr Mapendere relies upon in the second instance has no merit either. Section 115 of the Co- operatives Societies Act [Cap 24:05] relates to a dispute between a society and its member, or between registered societies. A dispute resolution mechanism is provided for in respect of such dispute. In my view that provision together with s 116 of the Act have nothing to do with the present matter where the plaintiff’s claim is premised on what is alleged to be unlawful conduct of the defendants entitling the plaintiff to what is in fact spoliatory relief. I conclude therefore that there is no merit in the special plea filed by the defendantS. It simply cannot succeed. Mr Kanengoni for the plaintiff took issue with the set down of the matter arguing that there was no compliance with r 138 dealing with such matters. Mr Mapendere disputed that in correspondence between the parties maintaining that he was entitled to his day in court. HH 73-15 HC 6337/14 Having come to the conclusion that the special plea is without merit, it may be unnecessary to deal with the issue of set down. Suffice to say though that the matter was not set down in accordance with the rules. In fact the defendants should have pleaded over to the merits of the matter the moment they failed to satisfy the requirements of r 138. In the result the plea in bar is hereby dismissed with costs. Nyika Kanengoni & Partners plaintiff’s legal practitioners Magodora & Partners, defendants’ legal practitioners