Pioneer Africa’s name change foils court application due to improper citation
HARARE – The High Court has dismissed an application in the case of Nicholas Mukarati versus Unifreight Africa Limited, formerly Pioneer Africa Limited, due to the applicant’s failure to properly cite the respondent under its current name.
Represented by Abraham Maguchu, the applicant, Nicholas Mukarati, had approached the court for the registration of a Labour Officer’s ruling in his favour, made on June 5, 2023.
The first respondent, Pioneer Africa Limited, now known as Unifreight Africa Limited, represented by Thabani Mpofu, however, raised a preliminary objection regarding its improper citation.
The company had changed its name in December 2014, but the applicant had cited it using its former name.
Justice Musithu upheld the preliminary objection, stating that the application was not properly before the court due to the improper citation of the first respondent. The court ruled that the applicant should have cited the respondent using its new name, Unifreight Africa Limited.
The judge cited the importance of proper citation in legal proceedings, citing several authorities that made a distinction between a mere misdescription of a party and the citation of a non-existent party.
The court held that the improper citation of the respondent was not a mere misdescription but rather the citation of a non-existent party.
“Having abandoned its former name, the applicant would need to be certain that the first respondent’s former name has not been assumed by another different entity.
“In any event it would not make legal sense to continue or commence proceedings under the former name with full knowledge, as is the case herein, that the first respondent is no longer known by that former name.
“At some point, the applicant would still need to substitute the new name for the former in order to enforce any order of the court under the new name by which the entity is now known.
“I have already indicated that from my reading of the law, the legislature did not give the applicant the choice to continue or commence proceedings under the old name,” the judge ruled.
The court also considered the effect of Section 25(4) of the old Companies Act, which states that a change of name does not affect legal proceedings that may have been commenced or continued under the former name of the company.
The court, however, ruled that this section does not confer on the applicant the choice to proceed with litigation under the old name.
The court struck off the application, and each party was ordered to bear its own costs.
“In conclusion, the court determines that the application is not properly before the court, because the first respondent is not properly cited. Therefore, the application must be struck off the roll,” Justice Musithu noted.
