LB206 2018 08

UNIVERSITY OF ZIMBABWE
August (Winter) 2018Examinations
Faculty: LAW
Department: PROCEDURAL LAW.
Paper code and Title: LB 206, Civil Procedure (Lower Courts)
Duration: 3 Hours
Examiner: Mr. Rodgers Matsikidze.
Authorised Materials: The Constitution of Zimbabwe No 20 of 2013,

Magistrates Court Act (Chapter 07:10), Magistrates Court (Civil)
Rules,1980, Small Claims Court Act (Chapter 07:12), Maintenance Act
(Chapter 05:09), Maintenance Orders (Facilities For Enforcement) Act
(Chapter 05:10), Magistrates Court (Civil Jurisdiction) (Monetary Limits)
Rules, SI 163 of 2012, Prescription Act (Chapter 08:11) and any other
relevant statutes and regulations.
INSTRUCTIONS:
1. Answer ALL questions.

2. Start each question on a new page
3. This question paper comprises six printed pages
NB: DO NOT TURN OVER THE QUESTION PAPER OR COMMENCE WRITING

UNTIL INSTRUCTED TO DO SO.
QUESTION 1
a. John contemplates terminating his marriage to Maryhis wifeof many
years in terms of Marriages Act [05. 11.] Mary resides in Midlands
Province while John resides in Harare. Their marriage was solemnized in
Harare. Mary has consented for divorce and has agreed that the summons
be instituted in the Magistrates’ Courts for Harare, as she believes that in
Harare things moves faster than in Gweru. John has approached you for
advice on how to proceed under the stated circumstances. Advise him.
[5marks]
b. Discuss the differences between a liquidated claim and a liquid claim?
Give examples of each. [5 marks]
c. The Magistrate Court has now an expanded jurisdiction. Discuss.
[5 marks]
[15 marks]
QUESTION 2
a. Lawrence has been sued for outstanding legal fees by Lawson law firm
and is not disputing the amounts stated in the summons but does not
want to pay costs of suit. He has approached you for advice on how to
quickly resolve this lawsuit. Advise him on ways he may quickly dispose
of the lawsuit. [3 marks]
b. You have been asked to draft summons for recovery of a debt of US5000
from a difficult debtor Mr. Huku. What are the essential elements you will
include in your summons and particulars of claim?[6 marks]
c. A plea is different from a request for further particulars. Is this statement

true? Explain your answer [3 marks]
d. Nissi is being sued for USD4000 by AB bank. He is aware that he owes the
bank but believes that he owes it USSD3500 and not USD4000. He does
not want to have a lengthy litigation and as a result he wants you to assist
him to get to know the basis of the bank’s claim for the USD500. How will
you assist Nissi? Explain in detail. [3 marks]
[15 marks]
QUESTION 3
Mr Fortune Mari sued his two tenants, Mr Hapana and Mr Kuomera, claiming
the sum of US$1 500.00 from each of them, being rent arrears for the past three
months. He has lease agreements with the tenants in terms of which the agreed
monthly rental is US$500.00 for each of them. As against Mr Kuomera, he also
made another claim for US$400.00 in the same summons arising out of a loan
advanced to Mr Kuomera in June 2013 but for which he refused to re-pay
notwithstanding a demand from Mr Mari a month after he got the loan.
The summonses were served on the tenants by placing them in their

letter boxes after the leased premises which the Messenger of Court
failed to get entry into as they were locked. Mr Hapana managed to obtain
the summons and entered an appearance to defend on time. Mr Kuomera
did not enter an appearance to defend because he never got the
summons. Meanwhile, Mr Fortune Mari was infuriated by the appearance
to defend that was entered by Mr Hapana because he felt that he merely
wanted to frustrate him and to delay the payment of the rent arrears.
He therefore decided to shorten the process by evicting him immediately

as punishment for engaging in dilatory tactics. He therefore spoke to his
friend, Mr Zvinoita, an Officer- In-Charge at a local Police Station and
requested him for manpower to effect the eviction. Mr Zvinoita assigned
two police officers who immediately went to the tenant’s residence
whereupon they evicted him in the company of Mr Fortune Mari.
Meanwhile, Mr Fortune Mari applied for default judgment against Mr

Kuomera for the payment of US$1 500.00 arrear rentals and re-payment
of US$400.00 which was granted. Mr Kuomera only realized that
judgment had been entered against him thirty-five days later. He wants to
defend the matter and he does not know what to do. On the thirty-sixth
day, the Messenger of Court came to his house and attached a motor
vehicle to satisfy the judgment debt of US$1 900.00. The motor vehicle
belonged to his brother–in-law by the name Mr Chivavani. When Mr
Chivavani was notified of the attachment he instructed Mr Kuomera to
immediately drive the vehicle to his house before the date of the removal
as he did not want his vehicle to be sold in order to satisfy the judgment
debt which he was not liable to pay.
Mr Fortune Mari somehow got to know that Mr Kuomera had been

instructed to remove the attached vehicle to Mr Chivavani’s house. He
went to Mr Kuomera’s leased premises and informed him that he would
be coming the following day with two police officers to evict him in the
same way he did to Mr Hapana. He immediately phoned the officer in
charge whereupon he was assured that the two officers would be
available to effect the eviction within the next two days.
Mr Fortune Mari left after informing Mr Kuomera that he would still

proceed to evict him even if he does not drive the attached vehicle to Mr
Chivavani’s house as he had secured a new tenant who was ready to pay
him the sum of US$2 000.00 per month.
YOU ARE REQUIRED TO:
a) List the applications that must be made by Mr Fortune Mari, Mr Hapana,

Mr Kuomera and Mr Chivavani to protect their interests.
[4 marks]
b) List the requirements of the applications that will be made in terms of (a)
above.
[12 marks]
c) Indicate the defences that may be available to the Respondents in the

applications, if any. [4 marks]
[20 marks]
QUESTION 4
Tiri is a village head under Chief Murehwa. He is concerned that a case that he
decided in his court become the subject of an appeal or re-view in a court of
higher jurisdiction. He heard that you are studying for an LL.B degree course and
that you are in the village. He calls you to his home and asks for your opinion on
the case.
Tiri advises you that on 21 October 2014, Mano, a resident of the village, killed a
pangolin and ate it in a stew. It is well known and accepted in the village that a
pangolin is a sacred and spiritual animal and a symbol of ancestral favour. It
must not be killed. If anyone captures it, he or she must hand it over to the
village head who must give it to the paramount chief.
Tiri further tells you that he issued a summons from his court claiming, as the
plaintiff, 2 cows and 2 goats as damages arising from Mano’s offence and for
propitiation of the ancestral spirits. He appointed as the site of the court his
eldest daughter’s marital home some two villages away where he was staying for
Christmas. He personally presided over the matter and barred Mano’s legal
practitioner from appearing in his court. He found Mano guilty of the offence. He
tells you that he heard that Mano had either appealed against or applied for a
review of this decision in the Magistrate’s court. He however does not think that
Mano will pursue the appeal or review because he paid the 2 cows and 2 goats
four days after Tiri’s decision. Tiri is interested to know the likely outcome if the
matter is taken on appeal or review.
Tiri also tells you that within a week of his decision, one Mufudzi came forward
and claimed that the 2 cows did not belong to Mano and threatened to drag Tiri
to court if he did not return the beasts within 30 days. Mufudzi alleged that some
two weeks before Tiri’ decision he had given the cows to Mano to use for a short
time. Mano on the other hand said that he bought the cows from Mufudzi.
Mufudzi insisted that the 2 cows are his and that he did not sell them to Mano.
Further he stated that his wife, mother and sister corroborate this claim.
Tiri wants to proceed with the propitiation ceremony without delay. One of the
cows will have to be slaughtered during the ceremony. Tiri also does not want to
be dragged into protracted litigation by either Mufudzi or Mano with the
prospect that he may be required to hand over the cows to the true owner and
pay the costs of such litigation.
a) If in your opinion Tiri misdirected himself in his decision, briefly outline

the misdirection concerned with reference to statutory and case law
authority. Tiri is particularly interested to know if this is a proper matter
to be taken on appeal or review to the magistrate’s court.
What would you advise Tiri to do in relation to Mufudzi and Mano’s

competing claims to the two cows? Which forum should Tiri approach for
this matter to be resolved?
[15 marks]
QUESTION 5
a) On 20 August 2013, Ruva obtained judgment against Tanatswa in the sum

of US$7 000.00. She issued a writ of execution against property but only
realized US$5 000.00. One day she found out that Ruva was working for
CARICA (Private) Limited, where she earns US$600.00 per month. She
further discovered that Ruva banks with LAW BANK OF AFRICA and has
US$1 000.00 in the account. She urgently needs advice on how to proceed.
What is your advice?
[5 marks]
a. Alice has instructed you to execute a judgment sounding in money

which is to the tune of US$1 000.00 obtained against Revai. She
already has a writ of execution against movable property. Revai is
a successful business-woman and has twenty houses valued at
US$2 000.00 each and dotted in all 10 Zimbabwean provinces.
Revai has ten cars each valued at US$2 000.00. In addition Revai
has an account with BB Bank that holds US$50 million and is
known to Alice. Alice plots to fix Revai by garnishing Revai’s
account. How will you execute the judgment? Explain in detail. Will
you proceed with a garnishee as Alice wishes? Explain your
answer.
[5 marks]
b) What are the key stages of execution process of a judgment in the

Magistrates Court?
[5 marks]
[15 marks]
GRAND TOTAL 80 MARKS

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UNIVERSITY OF ZIMBABWE

August (Winter) 2018Examinations

Department: PROCEDURAL LAW.

Paper code and Title: LB 206, Civil Procedure (Lower Courts)

Examiner: Mr. Rodgers Matsikidze.

Authorised Materials: The Constitution of Zimbabwe No 20 of 2013,

1. Answer ALL questions.

NB: DO NOT TURN OVER THE QUESTION PAPER OR COMMENCE WRITING

c. A plea is different from a request for further particulars. Is this statement

The summonses were served on the tenants by placing them in their

He therefore decided to shorten the process by evicting him immediately

Meanwhile, Mr Fortune Mari applied for default judgment against Mr

Mr Fortune Mari somehow got to know that Mr Kuomera had been

Mr Fortune Mari left after informing Mr Kuomera that he would still

YOU ARE REQUIRED TO:

a) List the applications that must be made by Mr Fortune Mari, Mr Hapana,

c) Indicate the defences that may be available to the Respondents in the

a) If in your opinion Tiri misdirected himself in his decision, briefly outline

What would you advise Tiri to do in relation to Mufudzi and Mano’s

a) On 20 August 2013, Ruva obtained judgment against Tanatswa in the sum

a. Alice has instructed you to execute a judgment sounding in money

b) What are the key stages of execution process of a judgment in the

GRAND TOTAL 80 MARKS

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