THE High Court in Bulawayo has struck off the roll a matter in which National Railways of Zimbabwe Contributory Pension Fund (NRZCPF) was seeking to evict a local company that was leasing its properties saying its representative in the matter had no board resolution to represent it.
The NRZCPF had cited Memizza Investments, which is under corporate rescue, as a respondent in the matter that was heard by Bulawayo High Court judge Justice Sijabuliso Siziba.
The pension fund had filed an application for leave to continue legal proceedings against the respondent, which is under corporate rescue.
The application was premised on section 126(1) of the Insolvency Act [Chapter 06:07].
The pension fund was seeking leave to continue eviction proceedings it commenced against the respondent at the Magistrates Court under case number BYO CD 411/24.
The applicant alleged that the respondent breached the lease agreement by subletting the premises after subdividing the place into smaller compartments, which structures had been condemned as illegal by the City of Bulawayo.
But the respondent raised a point in limine that the deponent to the founding affidavit, one Tinei Goto, had no authority to represent the pension fund.
At the hearing, Justice Siziba invited the parties to address her on the point in limine and also on the merits of the application so that if the point in limine is upheld, the matter will end there, but if, on the other hand, the point in limine is dismissed, the merits of the case will be considered.
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After hearing the arguments, Justice Siziba held that Goto had no authority to represent the pension fund because there is no board resolution from the applicant which authorised him to act on its behalf in the proceedings.
“No board resolution was attached to the founding affidavit in the first place and when the deponent’s authority to represent the applicant in these proceedings was challenged, no resolution from the applicant’s board of directors authorising the deponent to represent it was provided. The point in limine is, therefore, upheld. The matter is, therefore, not properly before this court,” the judge said.
While applying the law, the judge took into account the legal principle that a company acts through resolutions made by its directors at a properly convened board meeting which is well entrenched in this jurisdiction.
“A company, being a separate legal person from its directors, cannot be represented in a legal suit by a person who has not been authorised to do so. This is a well-established legal principle, which the courts cannot ignore.
“A person who represents a legal entity, when challenged must show that he is duly authorised to represent the entity. His mere claim that by virtue of the position he holds in such an entity he is duly authorised to represent the entity is not sufficient,” the judge said.
“He must produce a resolution of the board of that entity which confirms that the board is, indeed, aware of the proceedings and that it has given such a person the authority to act in the stead of the entity.
“I stress that the need to produce such proof is necessary only in those cases where the authority of the deponent is put in issue.”
Goto had submitted that he was the property manager for NRZCPF in terms of a management agreement which had been attached to a letter by Knight Frank.
The judge ruled that there was no resolution from the applicant which specifically authorised Goto to institute legal proceedings in a court of law on its behalf.
