Nyanjeka & Anor v Gerald & Giles Inv. (Pvt) Ltd & Ors (HC 3194 of 2014) [2015] ZWHHC 400 (28 April 2015)

1 HH 400-15 HC 3194/14 LLOYD NYANJEKA and SLVIA TAWUYA versus GERALD AND GILES INVESTMENTS (PVT) LTD and ELIOT TUMBWI and CB RICHARD ELLIS (PVT) LTD HIGH COURT OF ZIMBABWE BHUNU J HARARE, 3 February 2015 and 29 April 2015 Special Plea Ms K Munangwa, for the applicants K Musemwa, for the 1st and 2nd respondents T Pasirayi, for the 3rd respondent BHUNU J: The plaintiffs issued summons against the 3 defendants claiming payment of US$19 800.00 together with interest thereon at the prescribed rate, 10% collection commission and costs of suit, being reimbursement of the purchase price arising from cancellation of a contract of sale of an immovable property known as Stand 285 Avondale, Harare. The relevant portion of the plaintiffs’ declaration proclaiming the cause of action being paras 6 to 10 reads as follows: “6. 7. 8. 9. In November 2010 1st and 2nd Plaintiffs entered into an agreement of sale of immovable property namely Stand 285 Avondale, Harare with 1st Defendant duly represented by 2nd Defendant. 1st and 2nd Plaintiffs entered into an instalment sale and dully paid his instalments to 3rd Defendant. 1st and 2nd plaintiffs failed to pay up their last instalment as either 3rd Defendant or his legal practitioners namely Musimwa & Associates could accept receiving it. In March 2014 1st Defendant obtained an order for cancellation of the agreement of sale with 1st and 2nd Plaintiffs. HH 400-15 HC 3194/14 10. By virtue of cancellation of the agreement of sale by 1st Defendant, 1st and 2nd Plaintiff(s) seek reimbursement of the purchase price in the sum of $19 800.00 they paid.” It is clear from the above extract that the plaintiffs impute no fault on the part of the third defendant. It is however a general principle of our law that there is no liability without fault in the form of some unlawful, wrongful or blameworthy conduct of commission or omission. While the plaintiffs in their declaration blamed the first and second defendants for their patrimonial loss or prejudice they were initially completely silent on why they have sued and dragged the third defendant to court. Upon realisation that there was no nexus between the third defendant and their claim the plaintiffs amended their summons in a desperate attempt to link the third defendant to the claim. The amendment reads: “Amendment of declaration. 2. by the addition of Paragraph 6 (i) to read as follows: 6 (i) upon 1st and 2nd Plaintiff’s entering into the agreement of sale with 1st defendant, 3rd defendant acted as an agent and dully drafted the agreement of sale for the parties.” In response to the exception raised the plaintiff sought to argue that the mere allegation that the third defendant drafted the contract and received money on behalf of the first and second defendants as their agent renders the third defendant liable to the plaintiffs’ claim. The general rule at common law is that an agent is not personally liable for his principal’s liabilities under a contract. The principle is amply articulated by F. M. Reynolds in his book Bowstead On Agency 1985 5th when he says at p 434: “In the absence of other indications, when an agent makes a contract, purporting to act solely on behalf of a disclosed principal, whether named or unnamed, he is not liable to the third party on it. Nor can he sue the third party on it.” In Montigomerie v U. K. Mutual SS. Assn. Ltd [1891] 1 Q. B. 370 Wright J reinforced the general rule when he observed that: “There is no doubt whatever as to the general rule as regards an agent, that where a person contracts as an agent for a principal, the contract is the contract of the principal and not that of HH 400-15 HC 3194/14 the agent; and prima facie at common law the only person who may sue is the principal and the only person who can be sued is the principal. That observation is in consonant with the adage that, he who does a thing through another does it himself. In our Shona parlance it is said, mutumwa haana mbonje, that is to say, you do not shoot the messenger. The rule is however not absolute. There are exceptional circumstances which may render an agent liable to third parties. Lord Searman in Young kai Yung v Hong Kong and Shinghai Banking Corp. [1984] AC 787 at 795 clarifies the point when he says: “It is not the case that, if a principle is liable, his agent cannot be. The true principle of law is that a person is liable for his engagements {as for his torts) even though he acts for another, unless he can show that by the law of agency he is to be held to have expressly negatived his personal liability. Thus an agent may render himself personally liable in contract to third parties if he conducts himself in some blame worthy conduct or omission that attracts personal liability as happened in the case of Blower v Van Noorden 1909 TS 890 where the agent was shown to have fraudulently misrepresented to the 3rd party that he had the necessary authority from his principal when in truth and in fact he had no such mandate. A summons can loosely be defined as a form of process issued through the office of the Registrar and addressed to the Sheriff or his Deputy directing him to inform the defendant of the nature of the claim which the plaintiff has against him and the steps which the defendant must take if he wishes to defend the claim. The summons must generally inform the defendant of the cause of action and the particulars of claim in a separate document called a declaration. The purpose of the summons and declaration is to sufficiently inform the defendant of the case he is going to meet in court so that he can adequately prepare for his defence. The declaration must give adequate particulars of the plaintiff’s claim to avoid ambushing and taking the defendant by surprise. Its object is to spell out the issues clearly and crisply before the court. This object is defeated if the declaration does not contain all the allegations necessary to enable the defendant to raise a defence. The requirements of a proper and sufficient declaration have been thoroughly propounded through the cases such that there is hardly any more controversy as to what constitutes an adequate and proper declaration. The essential elements of a valid and proper declaration may be summarised as follows: HH 400-15 HC 3194/14 1. It must plead a complete cause of action which identifies the issues upon which the Plaintiff intends to rely and on which evidence will be led in an intelligible and lucid form and which allows the Defendant to plead to it - Koth Property Consultants CC v Lepelle-NUkumpi Local Municipality 2006 (2) SA 25 (T) at 30 E – 30 D 2. It must present an outline of the case relied upon so that the other party can respond to it intelligibly and is not taken by surprise at court – Trope v South African Reserve bank & Another 1992 (3) S A 208 Sa (t) at 211 B 3. With due regard to the cause of action, it must allege the entire set of facts which give rise to an enforceable claim – Evins v Shield Insurance Co. Ltd 1980 (2) S A 814 (A) An exception may be taken if a declaration does not meet the above bench marks in that it fails to disclose the cause of action or is vague and embarrassing. The plaintiff’s declaration in this case simply alleges that the third defendant was an agent who drafted the contract of sale and received money on behalf of its principals. It does not go on to allege any fault or wrong doing on the part of the agent. Simply drafting a contract on behalf of another and receiving money as an agent does not and cannot without more amount to any civil wrong rendering anyone liable to be sued in any court of law. The declaration is therefore inadequate and fatally defective in that it is vague and embarrassing for failure to disclose the cause of action. The third defendant cannot plead to plaintiffs’ claim in circumstances where it does not know what wrong it committed in order to attract personal liability as an agent. That being the case, the exception was well taken. It is accordingly held that the exception be and is hereby sustained with costs. Gill Godlonton and Gerrans, applicants’ legal practitioners Muronda and Muyangwa Legal Practitioners, respondents’ legal practitioners