SHAH v AIR ZIMBABWE CORPORATION 2010 (2) ZLR 94 (H)

Flynote

Practice and procedure -parties - substitution of - plaintiff bringing action against statutory corporation - corporation's business wholly taken over by a successor company - not permissible to amend summons to add or substitute the company D

Headnote

The plaintiff issued summons against Air Zimbabwe Corporation following a flight on an Air Zimbabwe aircraft. The defendant excepted to the summons, on the grounds that the defendant had ceased to exist, both at the time the cause of action arose and at the institution of proceedings, by virtue of the Air Zimbabwe Corporation (Repeal) Act 1998, under which Air Zimbabwe (Pvt) Ltd was established. The company took over all the functions, assets, liabilities and staff of the Corporation. The plaintiff through his erstwhile legal practitioners filed a notice of amendment. He indicated his intention to apply at the commencement of trial to amend his summons and declaration by the addition of "and/ or Air Zimbabwe (Pvt) Ltd' after Air Zimbabwe Corporation wherever it appears".

Held, that the legal position that existed after 23 March 2000 was that the excipient existed in form only. The application to amend the summons and declaration in the manner proposed by the plaintiff was a disguised application, firstly for joinder and secondly for substitution. The amendment sought was a novelty in this jurisdiction as it combined the conjunctive "and" and the disjunctive "or". Such an amendment was vague and embarrassing and would have to be struck out. It did not fulfill the requirements for a joinder contemplated by r 85 of the High Court Rules. The plaintiff had failed to demonstrate both some common question of law or fact and some entitlement to the relief claimed that arose from transactions performed by both the defendant and Air Zimbabwe (Pvt) Ltd.