Judgment No. HB 114/2003
Case No. HC 1398/01
X Ref HC 1397/01 & 3530/00
LUTHER DUBE
Versus
GAVENI MBEWE
IN THE HIGH COURT OF ZIMBABWE
CHIWESHE J
BULAWAYO 14 MARCH & 30 OCTOBER 2003
S Mlaudzifor the applicant
Respondent in person
Opposed Matter
CHIWESHE J: The plaintiff issued summons for provisional sentence the cause of action of which arose out of an acknowledgement of debt signed by the defendant on 1 February 2001 in favour of the plaintiff in the sum of $60 000,00.
The defendant appeared in person. That he signed the acknowledgement of debt in question is common cause. He opposed the claim on the grounds that he had not signed the acknowledgement of debt in his personal capacity but on behalf of a company Equigen Agents (Private) Limited. It was the company that borrowed the money and not him. The managing director of the company according to the defendant is one Basil C Phiri. The defendant argues that the company and the said Basil C Phiri should have been joined with him as co-defendants.
The defendant also alleges that the rate of interest charged was in contravention of the in duplum rule. He also alleges duress as the reasons why he had apparently signed a cheque in favour of the plaintiff in settlement of the debt. The cheque was dishonoured.
HB 113/03
The defences proffered by the defendant raise issues of fact which cannot be resolved on the papers without hearing viva voce evidence. It is therefore ordered as follow:
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That the provisional sentence be and is hereby refused.
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That the matter be and is hereby ordered to stand over for trial in terms of order 4 rule 34 of the rules of this honourable court.
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That costs be costs in the cause.
Advocate S K M Sibanda & Partnersapplicant’s legal practitioners