Liberg Automotive and Others v First Mutual Commercial Enterprises (Private) Limited

The respondent (plaintiff in the main matter) sued the applicants (defendants in the main matter) arising out of a lease agreement with the first applicant for premises at Bay 5, 51A Steven Drive, Beverly West, Msasa, Harare. The second, third and fourth applicants were sued as sureties and co-principal debtors for the first applicant's obligations. The claim was for payment of operating costs incurred during occupation of the premises. The lease agreement required the landlord (respondent) to prepare estimates of operating costs at certain intervals, which were to be paid within seven days. However, no estimates were duly prepared. Around August 2009, the first applicant objected to being charged based on estimates, and the respondent thereafter charged based on actual bills sent monthly. The applicants requested further particulars on 1 August 2011, which were responded to on 15 November 2011. On 25 November 2011, the applicants requested further and better particulars. The respondent's response triggered the instant application seeking an order compelling the respondent to furnish the requested particulars.

• Whether the third and fourth applicants had locus standi in the application, given that no separate affidavits from them authorizing the second applicant to act on their behalf were provided
• Whether the particulars already furnished by the respondent were sufficient to enable the applicants to file a plea in the main matter
• Whether the respondent was obliged to furnish further and better particulars as requested by the applicants

The application was dismissed with costs. The order was that the applicants' application for the respondent to furnish further and better particulars was dismissed, with costs awarded to the respondent.

The binding legal principles established are: (1) In motion proceedings, where a deponent brings an application on behalf of himself and others, allegations of authorization made in the founding affidavit need not be substantiated by separate affidavits from those other parties at that stage; documentary proof of authorization and/or ratification can be supplied in replying affidavits. (2) Applications for particulars should not amount to a series of interrogatories to the other party. (3) Particulars already furnished are sufficient if they are capable of enabling the requesting party to formulate their defense and plead to the claim, even if not provided in the exact format requested. The test is whether the particulars enable the party to address both liability and extent of liability, not whether they are provided in a particular format or meet every specific request.

The court made a non-binding observation that it is often improper for litigants to take objection to the other party's locus standi to institute proceedings, especially where from prior dealings the challenging party should be aware that the challenge will not succeed. Such objections can properly be characterized as "unnecessary and wasteful" in appropriate circumstances. The court also observed that the respondent's attitude in continuing to press for particulars despite having sufficient information to plead appeared to be "nit picking."

This case is significant in Zimbabwean civil procedure for clarifying the extent to which a party can demand further particulars in litigation. It reinforces the principle that applications for particulars should not be used as a fishing expedition or as a series of interrogatories. The case also addresses procedural issues regarding authorization in motion proceedings where one party acts on behalf of multiple applicants, confirming that documentary proof of authorization can be supplied in replying affidavits rather than necessarily being attached to the founding affidavit. The judgment provides guidance on when particulars already furnished are sufficient to enable a party to plead, even if not in the exact format requested.