Robert Matoka v Susan TM Dube and The Master of High Court

On 20 May 2011, Daniel Dube (now deceased) sold Stand number 106 Quinnington Township to the applicant for $50,000. The applicant paid the full purchase price and took occupation. With the seller's consent, the applicant spent a further $30,000 developing the property. The first respondent, as executrix dative of the deceased's estate, successfully challenged the sale under HC 860/13 (HH 504/17) on the ground that the seller lacked mental capacity at the time of sale. The court set aside the sale agreement on 3 August 2017. The applicant appealed to the Supreme Court under SC 618/17, which was dismissed on 20 February 2020. The applicant then instituted the present action on 31 March 2021, claiming unjust enrichment for the return of $80,000 ($50,000 purchase price plus $30,000 for improvements). The respondent raised three defences: exception to the pleadings, prescription, and res judicata.

• Whether the applicant's summons and declaration were vague and embarrassing and lacked necessary averments to sustain an action for unjust enrichment
• Whether the applicant's claim was barred by extinctive prescription under section 15 of the Prescription Act [Chapter 8:11]
• Whether the plea of res judicata applied to the applicant's claim for $50,000 and $30,000
• When did the applicant's cause of action for unjust enrichment arise
• Whether the filing of an appeal interrupted the running of prescription

The court ordered: (i) The defendant's exception is dismissed with directions for the plaintiff to file and serve his amended summons and declaration within ten (10) working days; (ii) The defendant's special plea of prescription is dismissed; (iii) The defendant's plea of res judicata is upheld in respect of the $50,000 claim and dismissed in respect of the $30,000 claim; (iv) Costs to be in the cause.

The binding legal principles established are: (1) An exception under Rule 42(1)(b) of the High Court Rules 2021 is fatally defective if the excepting party fails to comply with the mandatory requirement in Rule 42(3) to give prior written notice affording the opponent 12 days to remove the cause of complaint; (2) For purposes of extinctive prescription under section 15 of the Prescription Act, where a party appeals a judgment setting aside a contract, prescription does not commence running until the appeal is determined, as the appeal suspends the lower court's decision and interrupts prescription; (3) The cause of action for unjust enrichment arising from a set-aside contract arises when the appellate process is concluded, not when the trial court delivers its initial judgment; (4) The defense of res judicata requires three elements: same parties, same subject-matter, and same cause of action; (5) Res judicata can apply to discrete portions of a claim where those specific issues were determined in prior litigation between the same parties, while not applying to new matters that were not previously before the court.

The court made several non-binding observations: (1) In applying the rule from Adler v Elliot, 1988 (2) ZLR 283, the court noted that a claim should not be dismissed on exception where the party may be able to allege further facts disclosing a cause of action - this justified allowing amendment despite finding the pleadings adequate; (2) The court observed that plaintiffs cannot and should not plead the legal elements of unjust enrichment in their summons and declaration, as these constitute law rather than facts - the five elements from Callander Enterprises and Nyamunokera v Makkosi are what must be proved at trial, not pleaded; (3) The court commented that the respondent's failure to request further particulars when allegedly confused by the pleadings undermined her exception; (4) The court observed that the applicant's failure to lodge a claim under section 43 of the Administration of Estates Act was irrelevant to prescription because he was already before the court when public notice to creditors was given.

This case is significant in Zimbabwean law for clarifying several important procedural and substantive principles: (1) It emphasizes strict compliance with Rule 42(3) requiring notice before filing an exception; (2) It confirms that an appeal suspends the decision of the lower court and interrupts the running of prescription; (3) It clarifies when a cause of action for unjust enrichment arises in cases involving appealed decisions - not when the initial judgment is delivered, but when the appeal process is concluded; (4) It demonstrates the proper application of the three-part test for res judicata and shows that res judicata can apply to discrete portions of a claim where those portions were determined in prior proceedings; (5) It provides guidance on pleading requirements for unjust enrichment claims, confirming that plaintiffs need not plead the legal elements but must state facts giving rise to the cause of action.