Joseph Dongo v Champion Construction (Pvt) Ltd

The plaintiff and defendant entered into an agreement of sale on 20 December 2002 for the sale of Stand No. 3175 of Subdivision A of 159 Prospect, Waterfalls. In August 2005, the defendant cancelled the agreement, alleging the plaintiff had breached the agreement by failing to fulfill the agreed terms of payment. The plaintiff first instituted proceedings in 2005 under Case No HC 6039/05, seeking to declare the cancellation null and void and to compel transfer of the property. In December 2014, MAFUSIRE J granted the defendant absolution from the instance. The defendant subsequently sold the property to a third party. The plaintiff issued fresh summons on 8 December 2017, claiming damages for the cancellation of the agreement instead of transfer of the property. The defendant raised a special plea of prescription, contending that the claim had prescribed in August 2008, being three years after the cause of action arose in August 2005.

• Whether the plaintiff's claim for damages arising from the cancellation of the agreement of sale had prescribed
• Whether the running of prescription was interrupted by the service and prosecution of the first summons under HC 6039/05
• Whether the plaintiff successfully prosecuted his claim to final judgment as required by section 19(3) of the Prescription Act
• Whether a special plea can be amended or supplemented through heads of argument

1. The defendant's special plea is dismissed. 2. The defendant bears the plaintiff's costs.

The running of prescription is interrupted by the service of process whereby a creditor claims payment of a debt, even where the initial proceedings result in absolution from the instance rather than final judgment, provided the plaintiff prosecutes the claim. Counsel cannot plead a party's case through heads of argument. Heads of argument are not part of the pleadings and cannot be used to introduce new pleas or supplement defective pleadings. A party raising a special plea has a duty to disclose material facts, including prior litigation on the same cause of action, and failure to do so constitutes a lack of candor that may defeat the special plea.

The court commented on the defendant's lack of candor in formulating the special plea, noting that the defendant had "conveniently" omitted reference to the ongoing litigation between 2005 and 2014, creating a misleading impression that the plaintiff had been silent for nine years. The court also observed that an absolution from the instance does not seal a plaintiff's fate and leaves open the possibility of reinstituting proceedings. While the defendant attempted to argue in supplementary heads that absolution from the instance means a case was "prosecuted so badly and so unsuccessfully that it deserves no answer from the defendant or final judgment from the Court," the court did not accept this characterization in the context of interruption of prescription.

This case is significant in Zimbabwean civil procedure for clarifying the principles relating to the interruption of prescription where a previous action resulted in absolution from the instance rather than final judgment. It reinforces the fundamental principle that parties cannot plead their case through heads of argument, and that heads of argument cannot be used to supplement or amend foundational pleadings. The case also emphasizes the duty of candor in pleadings, requiring parties to disclose material facts, including prior litigation on the same cause of action. The judgment provides guidance on the application of sections 14(1), 15(d), 16(1), 19(2) and 19(3) of the Prescription Act in the context of interrupted prescription and absolution from the instance.