Calway Inv. & Anor v True Value Hardware (HB 16 of 2017; HCA 2 of 2016) [2017] ZWBHC 16 (9 February 2017)

CALWAY INVESTMENTS

and

NELSON MUTOBAYI

versus

TRUE VALUE HARDWARE

HIGH COURT OF ZIMBABWE

BERE AND MOYO JJ

BULAWAYO 23 JANUARY 2017 AND 09 FEBRUARY 2017

Civil Appeal

1^st & 2^nd appellants in person

I Mafirakureva for the respondent

MOYO J: This is an appeal against the decision of the magistrate sitting at Bulawayo on 23 December 2015. The order appealed against is as follows:

“It is ordered that:

1. The 1^st defendant pays plaintiff $6600-00 (USD).

2. Interest at the prescribed rate from the date of summons to date of full payment.

3. Costs of suit.”

The facts of the matter are that first applicant was allegedly supplied by the respondent 600 bags of cement at a cost of $6600-00 on 11 October 2013 and such cement was never paid for.

Upon argument of this matter, the respondent raised points in limine. The first point being that the judgment of the court a quo was delivered on 23 December 2015 and initially the appellants filed a defective notice of appeal on 12 January 2016. The notice of appeal was fatally defective in that it was addressed to the magistrate’s court and the clerk of that court as opposed to the High Court. Put differently, the appellants appealed to the magistrates court against a decision of that court instead of appealing to the High Court. This in effect meant that there was no valid notice of appeal before the High Court. This, as it would appear, was drawn to the appellants’ attention, they then filed a second notice of appeal which in effect became the initial notice of appeal as the first one was invalid and therefore a nullity. This they did on 9 February 2016. This notice of appeal was hopelessly out of time in that, judgment having been delivered on 23 December 2015, the appellants had 21 days within which to lodge an appeal, that was up to 25 January 2016. If the appellants waited for the written copy of the judgment (which they allege they received on 5 January 2016), then they should have filed their notice of appeal within 14 days from 5 January 2016 which still expired on 25 January 2016.

This is in accordance with the provisions of Order 31 rule 2 of the Magistrates Court Civil Rules, 1980. Order 31 rule 2 provides as follows:

“(1) An appeal may be noted within-

1. Twenty-one days after the date of the judgment appealed against, or

2. Fourteen days after the delivery to the clerk of court by the magistrate of a written judgment in terms of subrule (1) of rule 1.”

The appeal by the appellants is hopelessly out of time and no condonation was sought for the late noting of the appeal to enable the appellants to place themselves properly before this court:

Without condonation unfortunately, this court’s hands are tied, we cannot do anything to help applicant’s situation as the legal position on that point is very clear.

In the case of the Ready Wholesales Pvt Ltd (t/a) Power Sales v Innocent Katsande and 5 others SC 36/02, the Supreme Court at the hearing of an appeal which was made out of time with no condonation having been sought, struck the appeal off on the basis that it was a nullity. Having made no application for condonation of the delay in noting the appeal, the appellants face the only result that the appeal will be dismissed as without condonation having been sought and granted, this court’s hands are tied. Such was the finding of the Supreme Court in the case of Forestry Commission v Moyo 1997 (1) ZLR 254 (SC) wherein it was held that an application for review made out of time could not be dealt with without condonation first having been sought and granted and that the judge in the court a quo had erred in that case by granting condonation where none had been sought.

The respondents raise a second point in limine being that the notices of appeal are both fatally defective as they do not have recognizable grounds of appeal.

Order 31 rule 2 (4) of the Magistrates Court Civil Rules provides that:

“4 A notice of appeal or cross appeal shall state:

1. Whether the whole or part only of the judgment or order is appealed against, and if part only, then what part, and

2. The grounds of appeal, specifying the findings of fact or rulings of law appealed against.”

The appellant’s notice of appeal reads as follows:

“Take note that the judgment was done on the 23^rd of December 2015

1. The 1^st Plaintiff is not agreeing (sic) the judgment due to incorrect documents which were used to the judgment.

2. The witness was self made (sic) because on the particular case there was no witness I was dealing with the man himself. This witness didn’t know what document was supposed to be issued (sic) first she didn’t know what delivery note, invoice and a payment receipt. She went on to argue on a wrong Delivery note which was sent to them, not to us and we didn’t see any delivery note from them. To our surprise that close was committed from the judgment. She was supposed to be stopped to witness because I don’t know her or even (sic) to discuss business with her or even to discuss business with her.

3. The letter of 17/1/14 read it again (sic) it’s impossible to pay in 48 hours because we have to check all our invoices which were noted in our payment list of invoices, this was not considered by the courts. We have proof of everything on hand (sic) from the said Delivery note which was paid from Buy n Build. Note to Calway: two of their loads where not having the proper documentation and we went to pay them that was being honest and (sic) trust in Mr Mabuza himself.

There if a (sic) foul play being carried out.

This case has being struck off several times for (sic) best known by the courts.

Anyway the system was not being carried properly because the workers were covering this issue.

Note the system: (sic)

1. Delivery Note

2. Proper Invoice

3. Cash receipt

On the last 2 loads no delivery note but receipt and cash sale issued. They are lying they know where they put the cement.

Proper system delivery note with details of the Driver I.D number, Truck number and trailer number signed by the driver.

The 1^st Plaintiff and the 2^nd Plaintiff rejected the judgment and the two examples you (sic) noted in his/her judgment which we are rejecting totally because we are not in that type (sic) of judgment.

The judgment was not fair, the issue was, we must not say anything we were told remain silent no freedom of expression it was one sided and it was just Rubber Stamping (sic) judgment.

On our case, we are not going to pay anything on this particular issue because we don’t have any proof of the goods. To cover that cost no (sic) material no payment and other relevant cost.”

One fails to discern from this notice of appeal what the appellants’ grounds of appeal are. There is no single recognizable ground of appeal stated herein. Some of the sentences there are totally meaningless.

In the case of Passmore Matanhire v BP Shell Marketing Services Pvt Ltd SC 113/04, MALABA DCJ, after throwing out an appeal based on a defective notice of appeal, stated that he had decided to write a judgment so that legal practitioners’ attention is drawn to the fact that all the matters required by the rules of court to be stated in a notice of appeal are of equal importance so that failure to state one of them rendered the notice of appeal invalid. He further went on to state in that case that a nullity cannot be amended and he quoted KORSAH JA in the case of Jensen v Acavalos 1993 (1) ZLR 216 (S) at 220 wherein he said that the reason why a totally defective notice of appeal could not be amended was that:

“it is not only bad but incurably bad.”

A further examination of the Jensen case (supra) shows that KORSAH JA stated thus:

“The reason is that a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad, and unless the court is prepared to grant an application for condonation of the defect and allow a proper notice of appeal to be filed, the appeal must be struck off the roll with costs.”

It would therefore appear that it is settled law that a notice of appeal that is fatally defective in that it does not comply with the rules of court, would render the whole appeal a nullity unless where an application for condonation has been made and granted.

The appellants are self actors and obviously not trained in law. They would not follow and appreciate the importance of adhering to the rules of court in noting appeals. However, as we are all aware, these courts do not have separate rules for self actors. Those who fail to comply with the rules of court, will face the same consequences whether they are legally represented or self acting. That is the unfortunate reality of the operations of our courts.

The points in limine raised are upheld and the appeal is dismissed with costs as sought on an attorney and client scale as it borders on an abuse of court process. I say so for the notice of appeal does not give any recognizable ground of appeal. It lacks sense and nothing much turns on it.

I accordingly make the following order:

The appeal is dismissed with costs at an attorney and client scale.

Bere J agrees……………………………………………….

Messrs Moyo and Nyoni, respondent’s legal practitioners