Caleb Dengu and Wilson Tendai Nyabanda v Zimbabwe Allied Banking Group Limited

The plaintiff (Zimbabwe Allied Banking Group Limited) issued summons against the defendants for payment of $521,686.47 being money lent and advanced to Onclass Investments (Pvt) Ltd pursuant to a credit facility agreement. The two defendants acted as sureties and co-principal debtors with Onclass Investments. The plaintiff sought to declare executable the second defendant's property (Stand 120 Adylinn Township 6 of stand 8 of Adylinn North held under deed of transfer number 46187). Both defendants entered appearance to defend and requested further particulars, including how the amounts were disbursed. The plaintiff indicated the money was disbursed into the principal debtor's account and provided copies of banker's acceptances as annexures. The defendants then filed an exception alleging that because the claim was founded on banker's acceptances (which are negotiable instruments under the Bills of Exchange Act), the plaintiff failed to allege essential requisites such as being the legal holder, presentation for payment, dishonour, and notice of dishonour.

• Whether the plaintiff's summons and declaration disclosed a cause of action
• Whether a claim based on money lent and advanced under a credit facility agreement must plead the requirements for a claim based on banker's acceptances merely because such instruments were provided as evidence of disbursement
• What constitutes a sufficiently strong and clear case for an exception to succeed
• Whether defendants can compel a plaintiff to recharacterize its cause of action

The exception was dismissed with costs against the excipients (defendants).

A plaintiff has the right to control and define its own cause of action in its pleadings. The mere fact that a plaintiff provides certain evidence (such as banker's acceptances) in support of its claim does not require the plaintiff to plead its cause of action as being founded on those instruments when the actual cause of action is based on a different legal foundation (money lent and advanced under a credit facility agreement). An exception to summons succeeds only if it shows that the summons and declaration do not disclose a cause of action or are vague and embarrassing; it is not a process to challenge the evidence in the matter. Defendants cannot compel a plaintiff to substitute or recharacterize the plaintiff's chosen cause of action. Issues relating to evidence can be raised in the defendant's plea or defence. The onus rests on an excipient to make out a very clear and strong case for an exception to succeed.

The court observed that sureties engage with a creditor to be answerable in the second degree for the default of a principal debtor, and therefore the defences available to the principal debtor are automatically available to the sureties. The court also noted that courts are generally reluctant to decide questions of contractual interpretation on exception, preferring to have such matters determined on the basis of full evidence.

This case affirms important principles regarding civil procedure in Zimbabwe (and relevant to South African jurisprudence given the similar legal traditions): (1) plaintiffs have the right to control their own pleadings and frame their cause of action; (2) exceptions are not a mechanism to challenge evidence or force a plaintiff to adopt a different legal basis for their claim; (3) the provision of certain types of evidence (such as banker's acceptances) does not automatically transform the cause of action into one based on those instruments; (4) exceptions must meet a high threshold and excipients must demonstrate a very clear and strong case; and (5) courts distinguish between the cause of action (which must be properly pleaded) and the evidence supporting that cause of action (which is dealt with at trial or in the defence).