The parties appeared before Mushore J at a pre-trial conference where the defendant applied to amend its plea. On 5 July 2018 (or possibly 2017 due to typographical error), the application was dismissed. Subsequently, when drafting a joint pre-trial conference minute, the defendant's legal practitioner declined to sign. The plaintiff then applied to have the defendant's plea struck off, which was granted on 11 July 2017 under judgment HH 632/17. The defendant noted an appeal to the Supreme Court specifically against the judgment of 11 July 2017. The plaintiff then abandoned the judgment of 11 July 2017, and by consent the Supreme Court allowed the appeal, set aside the judgment, and remitted the matter to the High Court for continuation of proceedings commencing with a pre-trial conference before a different judge. At the pre-trial conference before Muzofa J, the defendant again sought to amend its plea. The plaintiff raised a point in limine that the issue of amendment was res judicata.
1. The point in limine was upheld. 2. The application for amendment of plea was dismissed.
1. A notice of appeal must specifically identify the judgment being appealed by date as required by Rule 29(1)(a) of the Supreme Court Rules, 1964. 2. Grounds of appeal relating to a judgment not identified in the notice of appeal are improperly before the appeal court and will not be considered, following Mine Mills Trading (Pvt) Ltd v NJZ Resources (HK) Ltd SC 40/14. 3. When an appellant appeals against one specific judgment and the appeal is allowed (or the respondent abandons that judgment), other prior judgments in the same matter that were not identified in the notice of appeal remain extant and binding. 4. The doctrine of res judicata applies to prevent re-litigation of an issue that has been finally determined by a court where no appeal was lodged against that determination. 5. Multiple judgments dealing with different issues in the same matter do not subsume one another; each must be specifically addressed if a party wishes to challenge it on appeal.
The court noted that when it had stated the pre-trial conference would be "fresh," this did not grant the defendant permission to re-apply for amendment. The statement only ensured the defendant's right to be heard on the issue before a determination was made. The court observed the principle of res ipsa loquitur (the thing speaks for itself) when interpreting the clear wording of the notice of abandonment, which only referenced the judgment of 11 July 2017.
This case is significant in Zimbabwean civil procedure for clarifying the application of res judicata in the context of multiple judgments and appeals. It emphasizes the strict interpretation of notices of appeal under Rule 29(1)(a) of the Supreme Court Rules, 1964, requiring precise identification of the judgment being appealed. The case demonstrates that when multiple judgments are handed down in the same matter, an appellant must specifically identify each judgment it wishes to appeal; failure to do so means that judgment remains binding. It reinforces that grounds of appeal relating to a judgment not properly identified in the notice of appeal are improperly before the appeal court and cannot be considered, even if included in the grounds. The judgment also illustrates the finality principle - that once a matter is determined by a court and not appealed, it cannot be re-litigated before another judge, even when the matter is remitted for continuation of proceedings on other issues.