Daine Taurai Chikowore v Margaret Msimbe and Registrar of Deeds of Bulawayo

On 21 October 2011, the plaintiff issued summons seeking delivery of property at number 24 Rennin Road, Redcliff, Kwekwe, which was pledged as security for a loan of Z$200,000.00, and for transfer of the property to him. The summons were served on the 1st defendant on 8 February 2012. The 1st defendant filed a notice of appearance to defend on 22 February 2012 and subsequently filed a special plea on 15 March 2012 based on prescription in terms of the Prescription Act [Chapter 8:11] and that the plaintiff was attempting to enforce a pactum commissorium which is not enforceable at law. The matter was set down for determination of the special plea on 28 May 2012. The plaintiff was personally served with notice of set down on 16 May 2012. On 22 May 2012, the plaintiff filed a notice refusing to appear, citing that courts and court officials are not impartial and making various constitutional arguments. The plaintiff did not appear on the set down date.

• Whether the plaintiff's claim had prescribed in terms of the Prescription Act
• Whether the plaintiff was seeking to enforce an unenforceable pactum commissorium
• Whether the court could proceed in the plaintiff's absence after he filed a notice of refusal to appear
• What are the legal consequences of a party refusing to appear before a court in which they instituted proceedings

The 1st defendant's special plea was upheld and the plaintiff's claim was dismissed with costs on the legal practitioner and client scale.

A party who institutes legal proceedings in a court thereby submits to the jurisdiction of that court and cannot subsequently refuse to be bound by that jurisdiction or boycott proceedings ancillary to the action instituted. Where a party who has instituted proceedings is properly served with notice of set down but deliberately refuses to appear without lawful excuse, that party is in willful default and the court may grant judgment by default against them, even where the party files written documents protesting the proceedings.

The court observed that had the plaintiff not sued the defendant in that court, he would have been entitled to his views regarding the court's jurisdiction. NDOU J also noted that the legal consequences of suing a defendant and serving summons is that the defendant is entitled to defend themselves. The court remarked that the plaintiff disregarded proper service at his own "legal peril, so to speak" and that he "deliberately chose not to follow the legal praxis of the court."

This case is significant in Zimbabwean civil procedure as it establishes that a party who institutes proceedings in a court submits to that court's jurisdiction and cannot subsequently refuse to participate in those proceedings. It demonstrates the consequences of willful default and the court's willingness to grant default judgment against a plaintiff who refuses to appear without lawful excuse. The case also touches on the principle that pactum commissorium (an agreement whereby a creditor may appropriate mortgaged property without following proper foreclosure procedures) is unenforceable at law.