DISTRIBUTABLE
(26)
Judgment
No S.C. 34/04
Civil
Appeal No 176/01
ALLAN
LAURENCE BANKS v NERINO OLIVEIRO
SUPREME
COURT OF ZIMBABWE
CHIDYAUSIKU
CJ, CHEDA JA & MALABA JA
HARARE
MAY 3, 2004
R.M.
Fitches, for the
appellant
S.
Mushonga, for the
respondent
CHIDYAUSIKU CJ: At the
conclusion of submissions by counsel we dismissed the appeal and
indicated that the reasons for judgment
would follow. The following
are the reasons for judgment.
The facts of this case are
fairly simple and straight-forward. They are briefly summarised in
the judgment of the court a
quo as follows. The
respondent, (the plaintiff in the court a
quo), and hereinafter
referred to as the plaintiff, issued summons against the appellant
(the defendant in the court a
quo), and hereinafter
referred to as the defendant. In the summons the plaintiff claimed
$500,000.00 allegedly due in terms of an acknowledgement
of debt
signed by both parties. The defendant requested further particulars
and received the response that the amount of $500,00.00
claimed to be
due, did not strictly represent a loan, but represented an amount due
over and above that reflected in an agreement
of sale of immovable
property entered into between the two parties. Thereafter, the
defendant requested a copy of the agreement
of sale and there ensued
a series of correspondence in regard to the matter.
Subsequently, the further
particulars supplied were in the form of a copy of the agreement of
sale to the effect that the sum of
$500,000.00 formed part of the
purchase price in the agreement for the sale of shares entered into
between the parties on 20 June
1991. The purchase price of the
shares, it was alleged, was in the amount of $2,45 million. The
defendant excepted to the claim
on the principal ground that it was
inconsistent and was contradictory, particularly in that the amount
due represented part of the
purchase price of immovable property and
that it also represented the amount in terms of an agreement for the
sale shares.
The
plaintiff responded by amending the claim by the deletion of the
averment that the amount due arose out of an agreement of the
sale of
the immovable property.
The learned judge in the court
a quo
was of the view that the amendment cured the ambiguity and left
intact the averment that the amount of $500,000.00 represented an
amount above the sale price for the purchase of shares reflected in
the agreement between the parties. The court a
quo thereafter
dismissed the exception on the basis that the amendment had removed
the cause of complaint. The defendant was aggrieved
by this
judgment and appealed to this Court.
The grounds of appeal are set
out in the notice of appeal which reads as follows:-
1. The
court a
quo erred in
dismissing the exception of the basis of the amendment filed on 4th
February 1998, as this amendment did not remove the inconsistent
averments in the Declaration which continued to be vague and
embarrassing
to the defendant in that he was still unable to
ascertain the case he had to meet, by reason of the inconsistencies.
2. The court a
quo erred in
dismissing the defendants exception as the plaintiffs
declaration still contains inconsistent averments as to whether
the
plaintiffs cause of action is a loan secured by an Acknowledgement
of Debt, or whether it is for payment of the balance of
a purchase
price of a sale of shares.
3. The court a
quo erred in not
upholding the exception, as, despite the plaintiffs amendment
aforesaid, the plaintiffs claim, as particularised,
is still vague
and embarrassing as it purports to rely on a loan, then avers that
the transaction was not a loan, then avers that
no monies were
advanced, then avers that the sum claimed represented not part of the
purchase price of immovable property, but represents
an additional
amount, without particularising this to enable the defendant to know
the case he has to answer.
4. The court a
quo erred in not
upholding the defendants exception as, despite the plaintiffs
purported amendment, the claim was still vague as
to whether it
related to the purchase of shares or to the purchase of immovable
property.
I agree with the learned judge in
the court a quo
that the amendment removes the cause for complaint. In any event it
is quite apparent from the pleadings that the plaintiff is
suing the
defendant on the basis of a liquid document signed by the defendant.
The plaintiff could simply have proceeded by way
of application for
a provisional sentence had he so elected. The defendant is not
impugning the liquid document. The demand for
particulars when the
defendants signature appears on the liquid document is a red
herring. The defendant must know why he signed
the acknowledgement
of debt and seeking to get the plaintiff to tell him why he signed
the acknowledgement of debt is facetious.
In
the result I am satisfied that the appeal should be dismissed with
costs.
CHEDA
JA: I agree
MALABA
JA: I agree
Jerome OBrien,
appellant's legal practitioners
Mushonga
& Associates,
respondent's legal practitioners
