MESSRS. ROBINSON & MAKONYERE
HIGH COURT OF ZIMBABWE
HARARE, 23 June 2009 and 21 July 2010
T Mpofu, for the plaintiffs
R. M Fitches, for the defendants
BHUNU J: The first and second plaintiffs are husband and wife. The first defendant is a business man whereas the second defendant is a firm of lawyers duly registered in terms of the laws of this country.
On 9 September 2004 the plaintiffs applied to the High Court for an order compelling the first defendant to pass transfer of stand number 43 being the remaining extent of stand number 20 Carrick Creagh Township 2 of Carrick Creagh of section 4 Borrowdale Estate Harare measuring 5347 square metres.
The plaintiffs’ claim found no favour with the High Court which dismissed their claim on 28 September 2005. Aggrieved by that decision they appealed to the Supreme Court which in turn dismissed the appeal on 19 June 2006.
In their initial claim the plaintiffs did not claim damages as an alternative to specific performance. It was only after they had lost their case on appeal that the plaintiffs almost as an after thought decided to sue the defendants for damages in lieu of specific performance. The defendants were then met among other things with the special plea of prescription and res judicata
It is convenient to determine the issue of prescription first because if it is found that the plaintiffs’ cause of action has indeed prescribed it may not be necessary to determine all the other remaining issues.
In terms of s 15 (d) of the Prescription Act [Cap 8:11] a debt arising out of a contract of sale prescribes after a period of three years. In terms of s 16 (1) prescription begins to run as soon as a debt becomes due. Section 2 of the Act defines a debt as including:
“Anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.”
In this case the plaintiffs’ claim arose from an alleged breach of the contract of sale which occurred sometime in 2003 when the first defendant failed to deliver or effect transfer of the stand which they had fully paid for.
The issue which arises for determination is whether the issuing of judicial process on 9 September 2004 interrupted the running of prescription. Section 19 (2) and (3) of the Act provide for the interruption of the running of prescription as follows:
“(2). The running of prescription shall subject to subs (3), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt.
(3). Unless the debtor acknowledges liability, the interruption of prescription in terms of subs (2) shall lapse and the running of prescription shall not be deemed to have been interrupted, if the creditor –
(a) does not successfully prosecute his claim under the process in question to final judgment; or
It is an established fact and a matter of common cause that the plaintiff issued summons against the defendants on 9 September 204 thereby interrupting the running of prescription by juridical intervention. The plaintiffs however did not successfully prosecute their claim both in the High Court and Supreme Court with the result that the interruption of prescription lapsed on 19 June 2006 when they lost their claim in the Supreme Court and the running of prescription was then deemed not to have been interrupted.
As the prescriptive period of three years has long expired I have no option but to hold that the plaintiffs’ claim against the respondents has since expired by effluxion of time.
Looked at from a different angle, the plaintiffs never issued summons against the respondents claiming damages for breach of contract until they lost their case in the Supreme Court on 19 June 2006. Granted, they issued summons against the respondents on 9 September 2004 but that was for specific performance in the form of transfer of the disputed property and not damages for breach of contract
With respect, a claim for transfer does not in my view without more convert into a claim for damages in breach of contract for the two claims are separate and distinct such that one cannot be substituted for the other. Looked at from that perspective one can only hold that by the time the plaintiffs issued summons claiming damages for breach of contract the cause of action had already prescribed.
Having already decided that the plaintiffs’ claim against the respondents has already prescribed, it is really not necessary to determine this issue. I however proceed to determine it just in case I might be wrong on the issue of prescription.
The plaintiffs’ cause of action arises from the alleged breach of contract of sale of a certain piece of land known as stand number 43 being the remaining extent of stand number 20 Carrick Creagh Township 2 of Carrick Creagh of section 4 Borrowdale Estate Harare measuring 5347 square metres. They allege that they bought the stand from the first defendant.
On 9 September 2004, the plaintiffs issued summons against the first respondent and one Charles Masimba Chihumbiri and the Registrar of Deeds seeking relief for breach of contract under case numberHC 10863/04. The second defendant was not party to those proceedings.
In his ruling KAMOCHA J had this to say:
“Ï also find that the purchasers withdrew the purchase price they had paid in United States dollars in breach of the verbal contract which the seller had the right to cancel pursuant to that breach.
In the result I would dismiss the application with costs.”
In short this court has already determined:
That it is the plaintiffs who breached the contract of sale and not the first defendant;
That the first defendant lawfully terminated the contract of sale for breach of contract; and
That the plaintiffs claimed and were refunded the purchase price.
The above determination has been upheld and confirmed by the Supreme Court. That Court being the Court of last resort that determination has become firm and binding for all time.
The requirements for the plea of res judicata were restated by SANDURA JA in the case of Banda & Ors vZISCO 1999 (10 ZLR 34. Inthat case it was held that:
“1. The action must be between the same parties.
2. Concerning the same subject matter.
3. Founded on the same cause of complaint as the action in which the defence is raised.”
As already stated this court and the Supreme Court have already determined that both plaintiffs were in breach of the contract upon which they intend to sue the defendants. Both courts have also determined that the first defendant lawfully terminated the contract of sale and refunded the purchase price.
Thus the cause of action relating to the sale of the property between the plaintiffs and the first defendant has been settled by the courts. The matter is now res judicata between the parties in relation to the abortive sale of the property in dispute. There can be no further action between them on the same issue.
It does not seem however, to matter much that the second defendant was not a party to the initial proceedings because it appears to me that the second defendant’s liability was dependent upon the validity of the contract in question. The courts having already determined that the contract was invalid it can hardly be said that anyone was at fault in influencing the abortion of an invalid contract. Thus the plea of res judicata as pleaded by the first defendant has a direct bearing on the outcome of the plaintiff’s claim against the second defendant though that defence is not available to him by virtue of not having been a party to the initial proceedings.
Although the defence of res judicata may not be available to the second defendant, the defence of prescription as specially pleaded by both defendants is unassailable.
In the result it is ordered that plaintiff’s case be and is hereby dismissed with costs.
Mushonga & Associates, plaintiff’s legal practitioners
Kantor & Immerman, 1stdefendant’s legal practitioners
Robinson & Makonyere, 2nddefendant’s legal practitioners