Mary Nyamutata v John Chikomo & 2 Others

The appellant purchased property (Stand 2110 Solani, Epworth) from the first respondent. Subsequently, the first respondent entered into a contract of sale with the second respondent for the same property, and the third respondent authorized cession of title, rights and interest to the second respondent. The appellant sued to nullify the second contract of sale on the ground that the second respondent was fully aware of her prior rights in the property at the time of entering into the contract with the first respondent. Summons was served on the first respondent via a tenant on 20 July 2006. The first respondent did not enter appearance to defend. The second respondent, who did enter appearance, raised a defence of prescription alleging that the period of prescription had run against the appellant's claim against the first respondent.

• Whether the second respondent had locus standi to raise a defence of prescription on behalf of the first respondent in respect of a debt the second respondent did not owe to the appellant
• Whether proper service had been effected on the first respondent
• When the period of prescription would commence to run in the circumstances of the case
• Whether the court a quo properly considered the question of notice of summons to the first respondent

The appeal was allowed with costs. The judgment of the court a quo was set aside and substituted with an order dismissing the point in limine with costs. The matter was remitted to proceed to trial on the merits.

Only a party against whom a claim is made has the right to raise the defence of prescription in respect of that claim. It is not competent for a third party to raise the defence of prescription on behalf of another party against a claim of a debt which that third party never owed to the claimant. A Deputy Sheriff's return of service constitutes prima facie evidence of service of process, and in the absence of evidence to rebut this presumption, the person served must be taken as having received the summons.

The Court observed that prescription cannot begin to run before a contract has been performed to give rise to a cause of action. In this case, the court a quo's finding that prescription would have started from 12 March 2000 was incorrect because the first contract had not been performed at that time to give rise to a cause of action against the first respondent.

This case clarifies important principles regarding locus standi in raising defences of prescription in Zimbabwean law. It establishes that a party cannot raise a defence of prescription on behalf of another party in respect of a debt or claim that does not affect them directly. The case also reinforces the evidentiary value of a Deputy Sheriff's return of service as prima facie proof of service of process, and emphasizes the need for courts to properly determine procedural issues such as notice before dismissing claims on technical grounds.