AL SHAMS GLOBAL BVI LTD v EQUITY PROPERTIES (PVT) LTD 2013 (2) ZLR 131 (H)

Flynote

Practice and procedure — provisional sentence — claim opposed — set-down of opposed matter — should not be set down on unopposed roll where plaintiff becomes aware, before hearing date given in summons, that D claim is opposed

Headnote

A summons for provisional sentence is issued where a plaintiff is the holder of a valid acknowledgment in writing of a debt or a liquid document. The summons may be in one or the other of two forms, Form No. 4 or Form E No.5. It must call upon the defendant to satisfy the plaintiff's claim, or in default 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. Rule 25(1) of the High Court Rules provides that the defendant may file a notice of opposition and supporting affidavit prior to the date stated in the summons; the provision is not couched in peremptory terms. It therefore means that the defendant has a choice as to whether or not to file a notice of opposition and opposing affidavit. Rule 25(2) provides that Order 32 shall apply, mutatis mutandis, to the service of a notice of opposition and the filing and service of answering or further affidavits which may be filed by the parties subsequent to the filing of the opposing affidavit. Where a notice of opposition is filed, this does not mean that the matter will wait to be placed on the opposed roll, although the filing of further affidavits after the opposing affidavit are to be in terms of the provisions of Order 32. It has previously been held that the practice of the High Court is to determine provisional sentence matters on the date appearing on the face of the summons. Issues of convenience to the court, which is essentially sitting as an unopposed court, can effectively be overcome by the presiding judge standing the matter down to the end of the roll for counsel to make their submissions to court. However, r 223(1)(a) provides for the setting down of uncontested cases for provisional sentence on the roll for unopposed matters. There is no provision in the rules for contested cases for provisional sentence to be set down on the same roll. The setting down of contested cases for provisional sentence on the "unopposed" roll is, therefore, not in accordance with the provisions of the Rules. It is not always apparent that the matter is to be opposed, because Forms No. 4 and 5 make no provision for the dies induciae within which the defendant must file a notice of opposition and opposing affidavits, other than that it should be before the date of the hearing inserted in the summons. The three courses of action available to the defendant are (a) to satisfy the claim; or (b) to file opposing affidavits; or (c) to appear in court on the date stated in the summons to admit or deny the claim. Where a defendant chooses to appear in court on the date of the hearing to deny liability, it is only then that the court becomes aware that the matter is contested. But if the plaintiff becomes aware before the date of hearing that the matter is opposed, he should not set it down on the unopposed roll.