1

HH 206-16

HC 6906/15

PETROGURU PRIVATE LIMITED

versus

IMEXPOTRAD PRIVATE LIMITED

HIGH COURT OF ZIMBABWE

CHIGUMBA J

HARARE, 2 March 2016, 23 March 2016

Opposed Application

Ms. T. Nyamucherera, for applicant

P.C Paul, for the respondent

CHIGUMBA J: This is an application for provisional sentence in the sum of USD$ 66 800-00, interest at the prescribed rate, as well as costs of suit. The question that falls for determination is whether provisional sentence may be granted in circumstances where the only issue is the quantum of liability. The plaintiff’s claim is based on an acknowledgement of debt executed on 26 November 2014. The respondent, in a notice of opposition dated 6 October 2015, admitted the signature on that document. The only issue is the averment that the figure of USD$88 000-00 is not the correct amount owed, but a projected figure, or an estimated figure. The defendant admits, in the opposing affidavit, to owing the plaintiff the sum of USD$40 600-00. At the hearing of the matter the plaintiff applied to amend its claim to USD$66 800-00.

 Provisional sentence is a summary remedy which is provided for in Order 4 Rule 20, of the Rules of the High Court 1971, as follows:

“20. Summons claiming provisional sentence

Where the plaintiff is the holder of a valid acknowledgement in writing of a debt, commonly called a liquid document, the plaintiff may cause a summons to be issued claiming provisional sentence on the said document”.

The principles which govern the determination of the merits of an application for provisional sentence are settled. The essential elements of the procedure of provisional sentence were captured in the case of Zimbank v Interfin [1] as follows:

“…the procedure of provisional sentence allows a creditor armed with a liquid document, to obtain payment of the debt without having to wait for the final determination of the dispute between the parties. Whilst a speedy remedy, provisional sentence is an extraordinary remedy based on the presumption of indebtedness raised by the liquid document. It is a brisk and robust remedy granted by the court in appropriate cases, on the date of the hearing endorsed on the face of the summons, after the court has satisfied itself that the defendant has no probability of success in the principal case”.

To succeed in a claim for provisional sentence, a petitioner must allege and show that:

1. The petitioner is a creditor which is in possession of a duly signed and witnessed liquid document.
2. There is a prima facie presumption of indebtedness in favor of the petitioner.
3. The petitioner is entitled to be summarily paid without having to wait for resolution of the dispute in the main matter.
4. The petitioner is entitled to a quick and robust remedy.
5. The defendant has failed to discharge the onus on it, to rebut the presumption of indebtedness which is raised by the production of a valid liquid document.
6. The defendant has very poor prospects of success in the main matter; the defence proffered is weak, and not likely to be accepted by the court.

For further elucidation of the essential elements of provisional sentence see Beki Sibanda v Elisha K. Mushapaidze[2]. It was submitted on behalf of the plaintiff that, provisional sentence is an efficacious remedy which ought to be granted without ado, especially considering that a defendant always has resort to the protective provisions of the rules, in particular, of r 28, which provides that:

“28. Rights of defendant when provisional sentence granted

A defendant against whom provisional sentence has been granted may—

(a)        within one month after the attachment made under a writ of execution issued by virtue of such sentence; or

(b)        if he has satisfied the judgment without an attachment, then within one month after having done so; cause an appearance to be entered with the registrar to defend the action, and shall notify the plaintiff of such entry. If he fails to do so within the stipulated time, the provisional sentence shall immediately thereafter become a final judgment of the court and the security given by the plaintiff shall ipso facto become null and void”.

The plaintiff challenged the averments made on behalf of the defendant that there are material disputes of fact in this matter. In the case of Zimbabwe Bonded Fibreglass Private Limited v Peech [3],  the court said that:

“It is, I think, well established that in motion proceedings a court should endeavor to resolve disputes raised in affidavits without hearing of evidence. It must take a robust and common sense approach and not an over fastidious one; always provided that it is convinced that there is no real possibility of any resolution doing an injustice to the other party concerned. Consequently there is a heavy onus upon an applicant seeking relief in motion proceedings, without the calling of evidence, where there is a bona fide and merely an illusory dispute of fact”.  

Other cases which have pronounced on the issue of the cogency of evidence that is necessary to establish a real dispute of fact are: Room Hire Company Private limited v Jeppe Street Mansions Private Limited[4],

In   Soffiantini v Mould[5], at p 154, the court said the following:

“It is necessary to make a robust, commonsense approach to a dispute on motion as otherwise the effective functioning of the court  can be hamstrung and circumvented by the most simple and blatant stratagem. The court must not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do so. Justice can be defeated or seriously impeded by an over fastidious approach to a dispute raised in affidavits”. See also Joosab & Ors v Shah[6], Lalla v Spafford N.O. & Ors[7], Masukusa v National Foods Limited & Anor[8].  In Chinese v Alluvial Exploration Services Private Limited[9]  this court said that:

“It is not all disputes of fact that matter in the determination of applications. It is the material disputes of fact that matter”.

To restate the principles which ought to guide a court, in motion proceedings, where the oft heard lament of “there is a dispute of facts which cannot be resolved on the papers” is heard: (I have previously expressed these views in a similar matter Gumbi v Majoni HC8460-14)

1. If it is possible to take a bold and rational approach, which is not overly exacting or picky, and there is no real possibility of being unfair to the other party concerned, the dispute may be resolved on the papers.
2. If it appears that the submission that there is a material dispute of fact is a deliberate and transparent ploy, which is calculated to delay the resolution of the matter by making it appear to be difficult to do so on the papers, the court must be careful not to allow such a strategy to hamper its effectiveness, or to defeat or delay the resolution of the matter.
3. If the dispute of fact appears to be one that can confidently be relied on as being genuine, authentic, true and above board, and it is not merely deceptive or false, it is a material dispute of fact which may require viva voce evidence for it to be resolved.
4. If the dispute of fact is one of substance, and has a bearing on the issue to be determined, it is a material dispute of fact which may require viva voce evidence for it to be resolved.

            It is my view that a dispute of fact regarding the quantum of liability is illusory in provisional sentence proceedings where an aggrieved defendant can always resort to r 28 which allows it to file an appearance to defend which will cause the matter to proceed to trial where the alleged dispute can be resolved. Such a dispute is not genuine in proceedings of this nature, and it is not material to the determination of an application for provisional sentence. A party against whom provisional sentence is claimed, is called upon to satisfy the plaintiff’s claim, or to appear before the court at the hour and on the day and at the place stated in the summons to show why he has not done so, and to acknowledge or deny the signature to the said liquid document or the validity of the claim. See Zuva Petroleum One Private Limited v Tawanda Ruzive[10]. The respondent has not denied that it signed the acknowledgment of debt. It is therefore bound by the caveat subscriptor rule. Roughly translated this rule stipulates that “...let the signer beware.”

            The celebrated author R. H. Christie in his book, Business Law in Zimbabwe, at p 67, has this to say:

“The business world has come to rely on the principle that a signature on a written contract binds the signatory to the terms of the contract and if this principle were not upheld any business enterprises would become hazardous in the extreme. The general rule, sometimes known as the caveat subscriptor rule is therefore that a party to a contract is bound by his signature, whether or not he has read and understood the contract….and this will be so even if he has signed in blank…or it is obvious to the other party that he did not read the document”.  See also Jane Nyika v Thembani Moyo & Ors[11].

The respondent has not disputed that the acknowledgement of debt is a liquid document. Of the defences open to a defendant in terms of Order 4, this leaves only one open, that, of disputing the validity of the claim. See Caltex (Africa) Limited v Trade Fair Motors & Anor [12] where it was held that, where the acknowledgment of debt is sufficiently clear and certain, and no evidence to the contrary has been given by the defendant, provisional sentence will be granted.[13].  Only a bona fide defence can defeat an application for provisional sentence. A bona fide defence has been held to be:

“…a plausible case with sufficient clarity and completeness to enable the court to determine whether the affidavit discloses a bona fide defence. He must allege facts which if established, would entitle him to succeed”. See Kingstons Limited v L. D. Innerson Private Limited[14].

          In my view, the respondent has failed to present a plausible case in its defence, to qualify it to defeat plaintiff’s/applicant’s claim for provisional sentence. It is bound by its signature and by the contents of the acknowledgment of debt. There is insufficient and incomplete evidence that the principal debt is only USD$40 000-00. Again caveat subscriptor. The respondent signed a contract in which it agreed that the principal debt was USD$88 000-00. The respondent has other remedies open to it in terms of order 4 if it is aggrieved by the decision of this court.

           It is my considered view that the plaintiff has discharged the onus on it and shown on a prima facie basis that it is entitled to provisional sentence as claimed in the summons. The defendant has no bona fide defence to the plaintiff’s claim. In the result it is hereby ordered that Provisional sentence be and is hereby granted in favor of the plaintiff, as against the defendant, in the sum of USD$66 800-00, together with interest at the prescribed rate, as well as costs of suit.

Messrs Lawman Chimuriwo, applicant’s legal practitioners

Messrs Wintertons, respondent’s legal practitioners

[1] 2005 (1) 114

[2] HH 56/10

[3] 1987 (2) ZLR 338 (S) @ 339 C-E

[4] 1959 (3) SA 115 (T) @ 1165

[5] 1956 (4) SA 150E @154,

[6] 1972 RLR 137 (G) @ 138G-H

[7] 1973 RLR 241 (G) @ 243 B

[8] 1983 (1) ZLR (HC)

[9] HH 13-12

[10] HB 32-14

[11] HB 145-10

[12] 1963 (1) SA 36 (SR)

[13] HH 29-12

[14] SC 8-06