Gianpietro Milanese and Ors v Paolo Marandola and Ors (2014/HPC/0334) [2021] ZMHC 124 (14 May 2021)

THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Commercial Jurisdiction) BETWEEN: GIANPIETRO MILANESE GUISEPPE DELLA BIANCA SUSI DELLA BIANCA CRAGNO VINCENZO MILANESE ALBERTO MILANESE AND PAOLO MARANDOLA CANDY MARANDOLA IV AN MARANDOLA \T 2014/HPC/0334 1 ST PLAINTIFF 2ND PLAINTIFF 3RD PLAINTIFF 4TH PLAINTIFF 5TH PLAINTIFF 1 ST DEFENDANT 2ND DEFENDANT 3RD DEFENDANT Before Lady Justice B. G. Shonga this 14th day of May, 2021 For the Plaintiff, M. N Siansiame, Messrs. TMN Legal Practitioners For the Defendant, Mr. A Kearns. Messrs Willa Mutofwe & Associates JUDGMENT Cases Referred To: J2 1. Zambia Seed Company Limited v Chartfleld International (PVT) Limited (1999) Z. R. 151. 2. Nkongolo Farm Limited v. Zambia National Commercial Bank Limited, Kent Choice Limited (In Receivership) and Charles Huruperi (2007) Z. R. 149. 3. Khalid Mohamed v. Attorney General (1982) Z. R. 49. Legislation and Other Material Referred To: 1. Order 18, rule 8/16, Rules of the Supreme Court, 1965, Supreme Court Practice of England, Vol. 1, 1999 Edition (the "White Book") . 2. Halsbury Laws of England, 4 th Edition Vol. 36, para 36(2). 3. Black's Law Dictionary, Tenth Edition, Bryan A. Garner, Thomson Reuters at p. 1152. 4. Words and Phrases Legally Defined Volume 2, Fourth Edition, Lexis Nexis, 2007, at p. 219. 5. Phipson on Evidence, seventeenth edition (Thomson Reuters (Legal) Limited 2010) paragraph 6-06 at page 151. 1.0 THE CLAIM The plaintiffs come before this Court seeking to set aside a Consent Order dated 16th April, 2012. The Consent Order was endorsed by the Court based on agreement between the parties to put the lawsuit to bed. J3 The plaintiffs allege that the Consent Order was procured by misrepresentation and or fraud. The writ of summons that gives life to these proceedings is endorsed with the following claims against the Defendants: l. An order to set aside or vary the consent order dated 16th April, 2012, as the same was procured by misrepresentation and or fraud and that supervening events have occurred since execution of the said Consent Order. 2. An order directing that the 1st, 4 th and 5 th Plaintiffs be reimbursed by the Defendants their capital contribution in the sum of one hundred and fifty-five thousand united states dollars (US$155,000.00) plus interest in accordance with the Additional Arbitration award of 18th March 2005. 3. An order directing that the 2 nd and 3 rd Plaintiffs be reimbursed by the Defendants their capital contributions in the sum of two hundred and sixteen thousand eight hundred and seventy-nine United States Dollars (US$216, 879. 00) plus interest as per additional arbitration award of 18th March 2005. 4. A declaration that the 1s t and 2 nd Def end ants are not entitled to payment of the sum of one hundred thousand and ten thousand United States Dollars (US$ I I 0, 000. 00). The plaintiffs also seek to move this Court to declare that Susi Della Bianca Cragno should be conferred with authority to find a purchaser for the land known as Invandale Farm. J4 In addition, this Court is moved to direct the manner in which the proceeds of sale should be disbursed. The writ of summons was filed together with a statement of claim which lays bare the basis of the plaintiffs' claims against the defendants. In their defence, the defendants not only deny the allegations cast at them but raise a counter-claim against the plaintiffs. 2.0 AGREED FACTS AND ISSUE FOR DETERMINATION The voluminous record of proceedings in this suit reveal that it is not disputed that the quarrel between the parties was earlier referred to arbitration and an award handed down on 22nd November, 2004. The parties are also of one accord as regards the fact that an additional award was handed down by the same JS arbitrator in 2005. In addition, the parties accept that they subsequently settled the Consent Order on 16th April, 2012. Considering the agreed facts , I opine that the primary claim by the plaintiffs is for the Consent Order to be set aside. Additionally, I surmise that the propriety of the bouquet of subsequent claims can only be considered if I find that it is appropriate to set aside the contested Consent Order. Thus, I have whittled down the issues for determination to one dominant and pivotal issue , being whether the Consent Order of 16th April, 2012, is fraught with either misrepresentation or fraud so as to r ender it liable to be set aside by this Court. 3 .0 THE EVIDENCE 3 .1 Plaintiffs' e vidence One witness statement, presented under the hand of the 3 rd plaintiff (PWl) , was relied upon by the plaintiffs. PWl t estified that the plaintiffs and the 1s t , 2 nd and 3 rd defendants wer e shareholders in Wildland Company Limited. PW 1 went on to s ay that a dispute arose between the parties in 1999 and that the J6 dispute was referred to arbitration. The arbitrator rendered an award in 2004. The following year, the arbitrator rendered an additional Award that saw to the correction of figures in the Award of 2004 and dealt with a claim that had not been attended to in the initial award of 2004. In the aftermath of the issuance of the additional Award, the defendant unsuccessfully applied to the High Court to set aside the said Award. The parties embarked upon further discussion which culminated into the Consent Order dated 16th April, 2012. It was PWl 's evidence that one of the terms of the Consent Order was that Ivandale Farm, property of Wildland Company Limited, would be sold at the best market price but preferably at a price not less than USD 3,000,000.00. PWl believed that the Consent Order bestowed upon her, authority to find a purchaser for Ivandale Farm and that proceeds for the anticipated sale were to be distributed as provided in the Consent Order. PWl understood that in executing the Consent Order, the defendants represented that they were willing to sell Ivandale Farm, confer upon her the authority to find a J7 purchaser, disburse the proceeds of sale in line with Consent Order and that all these acts would be completed expeditiously. PWl went on to testify that she later became aware that the defendants had no intention of holding to what they had represented to do. She believed this to be the case because firstly, she discovered that the recommended lowest selling price set out in the Consent Order turned out to be much higher than the actual market price of the property. She had located at least 6 potential buyers who were not willing to part with any more than USD 1,000,000.00 for the property. Secondly, the defendants frustrated all her efforts to sell Ivandale Farm. She had secured a buyer for the property, but the defendants refused to give their consent for the sale of the property on grounds that the offer price was too low. She lamented that in spite the Consent Order being agreed in 2012, the property had not yet been sold. It was PWl 's continued testimony that the High Court varied the Consent Order on 29th July 2013, by giving her an extension J8 of three months within which to source a buyer for lvandale Farm. Following the said variation, PW 1 was only able to find a buyer willing to pay USDl,350,000.00 which she claimed to be well below the expected price of USD3,000,000.00 reflected in the Consent Order. As at the date of commencement of this suit, Ivandale Farm remained unsold and under the sole control, possession and use of the defendants. As PW 1 came to the tail end of her testimony, she stated that owing to the reasons advanced, the Consent Order was obtained by misrepresentation and the plaintiffs were entitled to an order to set it aside. She concluded her testimony by avouching that she believed that the Consent Order had been frustrated by supervening effects; and that the only way to redress this conundrum was for the said Consent Order to be set aside. PWl was subjected to protracted cross examination which elicited a great deal of evidence, much of which I considered unhelpful in determining the fact in issue. In relevant testimony, she told the Court that she did not believe that the defendants had real intentions to cooperate in the sale of Jg Ivandale Farm and that they frustrated the sale. She first became aware of the attempts by the defendants to frustrate the sale of the property in June, 2012. She applied for an injunction against the defendants on account of their refusal to cooperate. She stated that she would not have signed the Consent Order had she known that the defendants had no intention to cooperate. During cross-examination, PW 1 reiterated that the Court had given her an additional mandate of three months within which to sell Ivandale Farm, failing which the defendants would be at liberty to sell the farm. The Ruling that had granted the extension had also set out the manner in which the proceeds from the sale of Ivandale Farm were to be distributed. It was her testimony that she did have the benefit of legal counsel at the time the Consent Order was negotiated and executed. She held to her belief that the defendants had misrepresented their intentions. JlO PWl agreed that on 29th July, 2013, she was alerted by Judge Wood, who was a High Court Judge at the time, that conduct amounting to misrepresentation could entitle a party to apply to set aside or vary a consent order. She was not happy with the extension of three months given to her to sell Ivandale Farm but took no steps to challenge the decision of the Court. She continued to search for buyers for the farm. In re-examination, PWl explained that the defendants frustrated her efforts to sell Ivandale Farm in that she always had to write to them, and she was not in a position to handle the transaction without their permission. It was her testimony that a problem arose every time she went to the buyer. Although the plaintiffs had, on 10t h March 2017, filed a witness statement in the name of one Richard A. S. Keeley, my record reflects that the plaintiffs dispensed with the evidence of Mr. Keeley and proceeded to close their case. 3.2 Defendants evidence Jll The 1st defendant, Paolo Marandola, testified on behalf of the defendants. He informed the Court that in 2001, the 3 rd plaintiff took out criminal proceedings against the 2 nd defendant on allegations that the 2 nd defendant had stolen monies. The following year, in 2002, the plaintiffs took out sequestration proceedings against the 1st defendant. Shortly thereafter, the plaintiffs took out yet another criminal proceeding in Tortona, Italy, against the defendants alleging that the defendants had fraudulently sold shares to the plaintiffs. It was the 1st defendant's testimony that all the above actions were unsuccessful and that costs were ordered against the plaintiffs. DW 1 further testified that the parties agreed to resolve their disputes on 24th December, 2011, and that the basis for the said settlement was information that the 3rd plaintiff had secured a buyer who was willing to pay USD3,000,000.00 for Ivandale Farm. A Consent Order was subsequently entered into in February, 2012, and perfected on 16th April, 2012. DWl went on to say that the 3rd plaintiff failed to consummate the J12 agreement with the buyer who she had indicated was ready to pay USD 3,000,000.00 for Ivandale Farm. He stated that the 3rd plaintiff failed to find alternative buyers at the price indicated in the Consent Order. DW 1 told of how all through the period that the 3rd plaintiff sought a purchaser for Ivandale Farm, she was granted unrestricted access to the property and undertook several visits to the said farm in the company of potential purchasers. Sometime in April, 2013, the defendants took out an application for interpretation or variation of the Consent Order. On 29th July, 2013 , the High Court varied the Consent Order by giving the 3rd plaintiff an additional three months to find a purchaser for lvandale Farm. DWl pointed out that despite the plaintiffs' having opposed the application to vary the Consent Order, no allegations of misrepresentation were made by the plaintiffs against the defendants in the proceedings to vary the Consent Order. Under cross-examination, DWl told the Court that she had evidence before Court to show that the plaintiffs had indicated J13 that they had a buyer for USD 3,000,000.00. When pressed to point to the document she was referring to, DWl was unable to do so. It was her testimony that it was the 3 rd plaintiff that had brought up the figure of USD 3,000,000.00. The said figure had been proposed during verbal discussions between DWl and the 3 rd plaintiff. She was shown the Consent Order at page 54 and 55 of the plaintiffs' bundle of documents and testified that there were several valuation reports that had been done. She informed the Court that she was unaware that a valuation report had been obtained for the property after the property had been sold. Upon being shown the report at page 65 of the plaintiff's bundle of documents, she agreed that the document showed that the valuation was done after she signed the Consent Order. She then alleged that the valuation was a fake document and that she had never seen the report before. DWl was referred to page 59 of the plaintiffs' bundle of documents and told the Court that she recognised the letter she had written on 17th April, 2012. She explained that the 3 rd plaintiff had induced her to put the sale price for Ivandale Farm J14 at USD3,000,000 .00 by conv1nc1ng her that she had buyer willing to pay USD 3,000,000.00 for the farm. The witness confirmed the contents of paragraph 15 in her witness statement and testified that the 3 rd plaintiff had failed to find a buyer for Ivandale Farm. It was her testimony that the 3 rd plaintiff had made efforts to find a buyer, but her attempts were futile. In re-examination, DWl testified that USD3 ,000,000.00 was a good price for the farm and that she thought it was worth USD2,500,000 .00. DWl avowed that PW3 had not informe d the company of what she was doing, save for two instances where she had disclosed that a buyer for USDl,200,000 .00 had been found . She had rejected that offer because the farm was worth much more than what was on offer. DW 1 maintained that the 3 rd plaintiff had told h er that she had lined up an Indian buyer for the farm at a consideration of USD3 ,000 ,000.00. As far as DWl was concerned, PW3 had n ever been denied any access to the property. JlS The defendants' second and last witness was the 2 nd defendant ' Candy Marandola. She told the Court that in 2001, the 3 rd plaintiff had taken out proceedings in Italy against her on allegations that she had stolen USD20,000 and that she was acquitted on all charges. Following that, the 3rd plaintiff had taken out several other actions all of which had failed. It was her testimony that the parties grew fatigued of litigations and had agreed to an amicable settlement. There had been agreement for the farm to be sold and the 3 rd plaintiff assured them that she had secured a buyer at a consideration of USD3,000,000.00. Agreement, according to her, was reached in December, 2011, and was subsequently reduced into a Consent Order in 2012. The plaintiff was later permitted by all parties to find a purchaser for the property. DW2 testified that the 3 rd plaintiff had failed to close a transaction with the indicated seller and had not succeeded in finding an alternative purchaser on the agreed terms. It was her testimony that in spite taking out proceedings to vary the J16 Consent Order, the plaintiffs did not level any allegations of misrepresentation against the defendants. When cross examined, DW2 told the Court that she was unaware of any acts of frustration performed by the defendants in relation to the performance of the Consent Order. DW2 was aware that the 3 rd plaintiff had sought an injunction to prevent the defendants from interfering with her authority to sell the farm. She, however, maintained that the defendants had not interfered with the 3 rd plaintiffs bid to sell the farm . According to DWl, the agreement signed on 24th December, 2014, was evidence of the 3 rd plaintiffs representation that a buyer for USD3 ,000,000.00 was on hand. DW2 voiced that if the 3 rd plaintiff had not approached the defendants with a proposition to sell at the price of not less than USD2 ,500 ,000.00, the defendants would not have reached agreement. DW2 told of how the price was arrived at by the 3 rd plaintiff. No valuation had, according to DW2, been undertaken for the farm prior to the Consent Order being signed. She was aware that the 3 rd plaintiff had caused a valuation to be done after the signing of the J17 Consent Order; and she maintained that this was not done with the blessings of Board of Directors. She was also aware that the quoted price in the valuation was lower than what the parties had agreed to. DW2 agreed that the 3 rd plaintiff had made some effort to sell the property. In re-examination, DW2 testified that the 3 rd plaintiff was authorised by the Consent Order to find a buyer and that the defendants allowed her to show the farm to potential buyers. On 6 th January, 2012, an ex-curia settlement document had been drawn. The document had been signed by the 3 rd plaintiff and herself. She drew my attention to a shareholder's resolution to sell the property at a price of not less than USD3,000,000.00. 4.0 SUBMISSIONS FROM PARTIES The plaintiffs filed their written submissions on 13th December, 2018 and the defendants filed theirs on 24th December, 2018. A month later, on 24th January 2019, the plaintiffs filed their submissions in reply. I am indebted to the submissions filed by both parties. 5.0 DETERMINATION J18 Before I delve into my determination, I must express regret for the delay in rendering this Judgment. It was occasioned by a rare lapse in record management that was beyond my control. I have considered the evidence before Court and, the submissions presented by both counsels. As alluded to above, the primary fact in issue is whether the plaintiffs have furnished me with sufficient evidence to support the allegation that the Consent Order was embroiled in fraud or misrepresentation. I have observed that the plaintiffs seek to eith er set aside or vary the consent order of 16t h April, 2012. Whilst I agree with the plaintiffs' submissions that the case of Zambia Seed Company Limited v. Chartfield International (PVT) Limited (1999) Z. R. 151 1 , settled that a consent judgment may only be set aside through commencement of a fresh action, I am not persuaded that a party has to commence a fresh a ction in order to obtain an order varying a consent order. On the J19 contrary, I take the view that an order seeking variation of an order ought to be taken out in the same cause where the order emanated. In fact, I note , from the Ruling of Judge Albert Wood, at page 107 of the defendant's bundle of documents, that the defendant in this action had correctly and successfully applied to vary the Consent Order employing the same cause housing the Consent Order. I am, therefore, unable to accede to the plaintiffs' request to consider variation of the Consent Order in this action. What is open to the plaintiffs to pursue in this fresh action, therefore, is an order setting aside the Consent Order of 16t h April, 2012. I stand on the shoulders of the Supreme Court's determination in the Zam.seed Limited v. Chartfield authority in concluding that the plaintiffs have employed the correct method of reaching out for redress, by commencing a fresh action. In attempting to set aside the Consent Order, the plaintiffs rely on the grounds of misrepresentation and fraud; and that supervening events have occurred since execution of the said J20 Consent Order. Thus, for the plaintiffs to succeed in this claim, they must bring forth eviden ce that convinces me that the defendants conducted themselves in a fraudulent manner or that the defendants procured the Consent Order by means of misrepresentation. Having gingerly combed through the plaintiffs' pleadings, I found nothing at all, therein, capable of anchoring an allegation of fraud . Similarly, the submissions on behalf of the plaintiffs appear to give the issue of fraud a wide berth. No attempt was made to argue its existence. The absence of particularity in the pleadings, to me, offends the requirements gleaned from Order 18, rule 8 of the Rules of the Supreme Court, 1965, Supreme Court Practice of England, Vol. 1, 1999 Edition (the "White Book"). Paragraph 16 of the editorial notes to rule 8, reads in part as follows: "any charge of fraud or misrepresentation must be pleaded with the utmost particularity ... " Further, I inclined my eyes towards and applied my mind to the case of Nkongolo Farm Limited vs. Zambia National Commercial J21 Bank Limited, Kent Choice Limited (In Receivership) and Charles Huruperi (2007) Z. R. 1492 , wherein the Supreme Court acknowledged the erudition of the learned authors of Halsbury Laws of England, 4 th Edition Vol 36, para 36(2) who elucidate that: " ... where a party relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence by another party, he must supply the necessary particulars of the allegation in his pleadings." In addition, I observed that the Supreme Court, in that matter, did not take issue with the High Court applying Order 18, rule 8(16) of the White Book which I referred to above. What is more , is that the apex Court held, inter alia, that: 1. actual fraud arises from acts and circumstances of imposition. 11. it usually takes the form of a statement that it false or suppression of what is true. 111. the withholding of information 1s not in general fraudulent unless there is special duty to disclose it. J22 In this case, I have already found that the plaintiffs failed to plead allegations of fraud with utmost particularity. Even if I were to find elements of particularity in the pleadings, there appears to be a dearth of evidence that demonstrates either that the defendants uttered a statement that was devoid of truth or that that the defendants suppressed some truth which they were under a special duty to disclose. As a result, I cannot consider setting aside th e Consent Order of 16th April, 2012 on grounds of fraud. I now turn to consider whether any misrepresentation has been proved in this action. As I do so, I agree with the defendants ' submissions that the legal burden of proof r ests squarely on the plaintiffs to prove that the Consent Order was entered into as a result of a misrepresentation by the defendants. Black's Law Dictionary, Tenth Edition, Bryan A. Garner, Thomson Reuters at p. 1152, defines misrepresentation in the following words: " ... the act of or an instance of making a false or misleading assertion about something with intention to deceive. The word denotes not just J23 written or spoken words but also any other conduct that amounts to a false assertion. " In the literary works titled Words and Phrases Legally Defined, Volume 2, Fourth Edition, Lexis Nexis, 2007, at p. 219, misrepresentation is defined as follows: "A representation is deemed to have been false, and therefore a misrepresentation, if it was at the material date false in substance and in fact. For the purpose of determining whether there has or has not been a misrepresentation at all, the representors knowledge, belief, or other state of mind is immaterial, save in cases where the representation relates to the representers state of mind, although his state of mind is of the utmost importance for the purpose of considering whether the misrepresentation was fraudulent. " With the foregoing meanings in mind, I address the allegations of misrepresentation in the plaintiffs statement of claim. Bearing in mind what constitutes a misrepresentation, I take the view that, to succeed, the plaintiff must show that the defendants falsely led her to believe that the farm in issue had a market value of USD3,000,000.00. This is my segue into analysing the relevant portions of the statement of claim. By paragraph 11 of the statement of claim, the plaintiffs aver that the defendants' execution of the Consent Order impliedly represented to the plaintiffs that the defendants were willing to J24 sell the farm, confer authority on the 3 rd plaintiff to find a purchaser, disburse the proceeds of sale in accordance with the Consent Order and that the above would be completed expeditiously. By paragraph 12 of the statement of claim, the plaintiffs assert that the particulars of misrepresentation are that after execution of the Consent Order, the defendants frustrated all efforts by the 3 rd plaintiff to sell the farm; that the 3 rd plaintiff secured an offer from a potential buyer, but the defendants refused to sell the said farm; and that the defendants had intentions of setting up a new company to lease and run the farm with third parties. I have probed, in vrun, the evidence on record in search of testimony that might give effect to paragraphs 11 and 12 of the statement of claim. Instead, the evidence before me suggests that the parties agreed to settle their long-standing differences by compromise. Page 58 to 62 in the defendants' bundle of documents contains several documents that preceded the execution of the Consent Order of 16th April, 2012. When J25 considered en masse, these documents reveal agreement between t h e parties for the sale of lvandale Farm at a consideration of not less than USD3,000,000.00. It appears to me to be the same ex-curia agreements that were subsequently reduced into the Consent Order of 16th April, 2012. The common thread entwining t h e witnesses called by the plaintiffs and defendants is that th ey accept that no valuation had b een done prior to the Consent Order being entered into. Whilst the 3 rd plaintiff did not allege that the amount of USD3 ,000,000.00 was proposed by the defendants, both witnesses that testified on behalf of the defendant insisted that the price h ad been set by the 3 rd plaintiff. I remind myself that the general rule r elating to the burden of proof in civil cases was aptly articulated by the erudite authors of Phipson on Evidence, seventeenth edition (Thomson Reuters (Legal} Limited 2010) paragraph 6-06 at page 151 , who expound as follows: "So far as the persuasive burden is concerned, the burden of proof lies upon the party who substantially asserts the affinnative of the issues. If, when all the evidence is adduced by all parties, the party who has this burden has not discharged it, the decision must be against him. It is an ancient rule founded on considerations of good sense and s hould not be departed from without strong reasons.,, J26 The erudite, (supra) expand in paragraph 6-06 a t page 151 as follows: "This rule is adopted principally because it is just that he who invokes the aid of the law should be first to prove his case ... " In applying the rule in casu, I accept that it is incumbent upon the plaintiffs to prove their case. In this regard, I note that I have not been aided with any evidence to support the notion that the amount of USD3,000,000.00 set as the purchase price emanated from the defendants. I am unable, 1n the circumstances to find that the defendants committed an act of misrepresentation regarding the purchase price for the farm in issue. This is more so when the wording of the Consent Order is considered. Clause 1.2 of the said Consent Order reads as follows: "the farm be sold at the best price the market can offer but preferably a price not less than three million united states of American Dollars (US$ 3,000,000.00). J27 It immediately becomes apparent, from the wording above, that the price of US$3,000,000.00 was what the parties agreed would be the preferred price. The actual sale price, however, was to be determined by the market price. The mere fact that the plaintiff was unable to secure a buyer for the preferred price did not stop her from selling at, in the words of the Order, "the best price the market can offer." I am aware of allegations by the plaintiffs that the defendants wilfully refused to perform the Consent Order. However, there is a medley of post judgment procedures that the plaintiffs could have employed in the wake of the alleged defiance by the defendant. From my vantage, the failure by the plaintiffs to invoke the available enforcement mechanisms in the cause that housed the Consent Order cannot be reason, here, for the Consent Order to be set aside. Considering the evidence before me and in the light of the ratiocination that followed m y application of the law, I am not J28 persuaded that the plaintiffs have demonstrated, on the balance of probabilities, the existence of a misrepresentation on the part of the defendants . Consequently, I decline to set aside the Consent Order of 16th April 2012. Consequential to my determination, the remainder of the claims in the statement of claim equally fall off because, by this Judgment, the Consent Order remains valid and undisturbed. I now reposition my attention to the counter-claim raised by the defendants. The defendants would have me make orders to have losses and damages assessed by this Court and a further order for other liabilities incurred by the company to be paid out of the shares of the plaintiffs in this action. In the Zambia Seed Limited v . Chartfield case cited above, counsel sought to move the Court to make what he termed "supplementary orders" in a matter closed by way of a Consent Order. The Supreme Court declined the invitation to so hold. Stare decisis binds me to adopt the same approach. It is my view, therefore, that once a Consent Order is upheld, I have no J29 authority to make supplementary orders 1n relation to the subject matter of the Consent Order. In any event, even if I had jurisdiction to do so, I still would not have entertained the counter-claim considering that it was not pursued by the defendants. I have not lost sight of the defendant argument that the plaintiff has not challenged the counter-claim. However, the absence of a challenge does not in itself entitle the defendant to a favourable judgment. I lean on the authority of Khalid Mohamed v. Attorney General (1982) Z. R. 493 , where the Supreme Court held that a plaintiff cannot automatically succeed whenever a defence failed; that the plaintiff must prove his case. Consequently, the burden to prove and prosecute the counter-claim lay squarely on the shoulders of the defendant. For this reason, I reject the counter-claim. J30 For the sake of clarity, I dismiss both the plaintiffs' claims and the defendants' counter-claim. I direct that each party shall bear their own costs. Leave to appeal is granted. HIG