On 26 March 2015, we dismissed the appellant's appeal with costs on the attorney-client scale. We indicated that full reasons will follow. These are the reasons for the dismissal.The appellant owns an immovable property, namely, Flat No.4 Resdale, 56 Selous Avenue, Harare. The appellant is resident in New Zealand and ...
On 26 March 2015, we dismissed the appellant's appeal with costs on the attorney-client scale. We indicated that full reasons will follow. These are the reasons for the dismissal.
The appellant owns an immovable property, namely, Flat No.4 Resdale, 56 Selous Avenue, Harare. The appellant is resident in New Zealand and she was represented in these proceedings by her brother, Ignatius Masamba, by virtue of a General Power of Attorney she granted to him in the year 2011.
In 2011, the appellant, through Ignatius Masamba, sued the defendant for the sum of $1,960 broken down as follows:
“Their statements are a Nuisance $150;
Professional negligence $1,500;
Mental distress/physical inconvenience/time $300;
Transport/stationery/photocopying $10.”
The summons commencing action was not clear on the cause of action or the legal basis for the various claims.
The particulars of claim are, to say the least, confusing and incoherent. The particulars of claim do not disclose the legal basis for the claims.
It is trite, that, particulars of claim must clearly disclose the cause of action being relied upon.
If it is based on contract, the nature and extent of the contractual obligations and their breach must be clear. If it is a suit for damages, the summons and particulars of claim must clearly spell out whether such damages are being claimed in contract or under an Aquilian action.
In casu, the summons and particulars of claim did not disclose whether the damages being claimed were for breach of contract or for a delict.
If the damages are in delict, the summons did not properly establish the cause of action. No wrongful or unlawful conduct on the part of the respondent is alleged, let alone established from the summons and particulars of claim: see Nyaguse v Skinners Autobody Specialists & Another 2007 (1) ZLR 296 (H) and Border Timbers Limited v ZIMRA 2009 (1) ZLR 131 (H).
Based on the above, there was virtually no case to try.
A trial was, nevertheless, held after which the trial magistrate, after considering each of the claims, dismissed the appellant's claim with each party to pay their own costs.
The appellant, being dissatisfied with the magistrate's decision, appealed to this court.
The respondent opposed the appeal and raised points in limine on points of law.
Though some of the points of law may not have been clearly raised in the court below, we were of the view, that, the points pertain to issues that are clear from the pleadings. The consideration of the points will not cause any unfairness as clearly part of the aspects were raised and the appellant was aware of them: see Ngani v Mbanje & Another; Mbanje & Another v Ngani 1987 (2) ZLR 111 (SC).
Upon perusal of the appeal record, it was apparent that the appellant's appeal was not in order.
On 27 January 2015, we inquired on the authority for Ignatius Masamba to act for the appellant when all he had was a general power of attorney which did not specify that he was empowered to institute litigation.
We also drew Ignatius Masamba's attention to the defective nature of the Notice of Appeal.
Upon noting that he was intent on prosecuting the appeal as it is, we advised him to seek legal assistance before we decided the fate of the appeal.
On that day, he agreed.
The appeal hearing was thus postponed to 26 March 2015.
When the matter was heard, on 26 March 2015, Ignatius Masamba indicated that he had approached a legal practitioner. He however did not know the name of that legal practitioner or the law firm. He further on said, that, he had not engaged the services of any legal practitioner as he had no financial means to engage one but was ready to argue on his own.
Upon further inquiry from him, he indicated, that, his sister (the appellant) had in fact instructed him to withdraw the appeal. He had however, on his own accord, decided to pursue the appeal despite his principal's instruction.
It is apparent, therefore, that, from Ignatius Masamba's own admission he no longer had the mandate to pursue the appeal once his principal instructed him to withdraw the appeal....,.
It may also be noted, that, as the principal had instructed her agent to withdraw the appeal in no uncertain terms, the agent no longer had the mandate to proceed with the appeal.
I am of the view, that, from whichever angle one analyses the issue, Ignatius Masamba had no authority to prosecute the case and even to pursue the appeal. He is clearly on a frolic of his own for his own ingratiation. He cannot succeed in such pursuit....,.
This is a case which should not have seen the corridors of this court, or should, at least, not have been persisted with especially after the principal had instructed the agent to withdraw the appeal.
