VOICEVALE LTD v FREIGHTLINK (MALAWI) LTD 1987 (2) ZLR 22 (S)

Flynote

Jurisdiction — contract concluded by peregrini outside Zimbabwe — subject-matter of contract situated in Zimbabwe — High Court, as forum D rei sitae, has jurisdiction to entertain actions arising out of contract, whether action is in rem or in personam.

Headnote

Both appellant and respondent were peregrini. Appellant sold respondenta quantity of peas in Malawi for delivery to India, via Harare and Beira. Half were shipped to India in terms of the contract, but while the remainder were in Harare the respondent effectively terminated the contract by selling them to a third party. Appellant applied to the High Court for leave to attach the consignment of peas to found jurisdiction for an order of specific performance against respondent. The High Court dismissed the application on the ground that it had no jurisdiction to entertain the dispute over the contract, since the intended action was in personam rather than in rem; alternatively, the court held that even if it had a discretion in the matter it would not assume jurisdiction becausethe balance of convenience dictated that the action should proceed in Malawi rather than in Zimbabwe. On appeal:

Held, that the High Court had jurisdiction in the matter by virtue of being the forum rei sitae (ie the court within whose area of jurisdiction the subject-matter of the dispute was situated). This was so whether the action was in rem or in personam.

Held, further, that where it is impossible to decide which party will be the more inconvenienced by an order of attachment it is proper for the court to have regard to the merits of the case because, if it is clear on the papers that the probabilities favour one party then in a real sense one can say that the balance of convenience favours that party. In the instant case the probabilities, and hence the balance of convenience, clearly favoured the appellant.