African Banking Corporation of Zimbabwe Limited v Munhenga Enterprises Private Limited and Ecobank Zimbabwe Limited

The plaintiff (African Banking Corporation) entered into a five-year lease agreement with the first defendant (Munhenga Enterprises) in March 2011 for premises at Stand 360 Mopani Drive, Chiredzi, at a monthly rental of US$2,520. Under clause 11 of the lease, the plaintiff could effect additions and alterations at its own cost with the first defendant's consent, and had the right to remove non-permanent improvements when the lease terminated. The plaintiff installed non-permanent improvements (furniture, fittings, partitions, air conditioning units) valued at US$47,873. The plaintiff terminated the lease and vacated the premises around May 2012. The first defendant allegedly barred the plaintiff from removing the installed property and subsequently leased the premises to the second defendant (Ecobank Zimbabwe Limited), which was currently in possession of and using the disputed property. The plaintiff claimed delivery of the property and payment of US$1,000 per month from February 2013 until delivery for use of its property. The second defendant filed an exception to the declaration, arguing it disclosed no cause of action, particularly no unjust enrichment, and that no privity of contract existed between it and the plaintiff.

• Whether the plaintiff's declaration disclosed a cause of action against the second defendant
• Whether the exception was properly taken under Order 21 of the High Court Rules
• Whether the declaration contained sufficient particularity to enable the second defendant to plead
• Whether the requirements of unjust enrichment needed to be established in the declaration for it to survive an exception

The exception was dismissed. The second defendant was ordered to bear the costs of the application.

An exception to a declaration should only be upheld where the declaration fails to disclose a cause of action by being insufficiently particular, contradictory, mutually destructive, or inappropriate at law. A declaration that clearly sets out the cause of action and facts upon which a claim is based, even if sued in the alternative, contains sufficient particularity to enable a defendant to plead. Substantive defences such as lack of privity of contract or failure to prove elements of unjust enrichment are matters to be raised in a plea to the merits, not by way of exception. The question on exception is not whether the plaintiff has proved or established the requirements of a cause of action, but whether the declaration discloses a cause of action with sufficient clarity to enable the defendant to know the case against it and to plead accordingly.

The court observed that the true object of an exception is either to settle a case or part of it in a cheap and easy fashion, or to protect a party against embarrassment so serious as to merit the costs of an exception (citing Herbstein & Van Winsen). The court also noted that the first defendant, though represented, elected to abide by the court's decision and did not argue the matter, suggesting acquiescence to the plaintiff's claims. The court's characterization of the cause of action as "clear as crystal" emphasized the impropriety of using exceptions as a means to avoid pleading to substantive defences.

This case is significant in Zimbabwean civil procedure as it clarifies the proper scope and function of exceptions under Order 21 of the High Court Rules. It establishes that an exception should only be upheld where a declaration is so vague or embarrassing that a defendant cannot plead, not merely because the defendant disputes whether the elements of a cause of action (such as unjust enrichment) have been established. The case reinforces that defences such as lack of privity of contract or absence of unjust enrichment are matters to be raised in a plea, not by way of exception. It also illustrates the proper treatment of alternative claims against multiple defendants in possession of disputed property.