FLAMBOYANT businessman Frank Buyanga could land himself in jail after allegedly tactfully evading High Court-imposed civil imprisonment for the past three years over a US$282 000 debt he owes to a local entrepreneur.
The businessman, Tawanda Jakachira, approached the court in February 2016 seeking to institute a civil imprisonment process against Buyanga.
The High Court, through the then High Court judge Justice Moses Chinhengo (now retired and Alpha Media Holdings ombudsman), ordered Buyanga to pay the amount, but he did not comply.
Jakachira also unsuccessfully tried to issue a writ of execution against the South African-based mogul’s movable and immovable properties as he pursued satisfaction of the High Court order.
In terms of the law, summons of that nature can only be served personally on the defendant by the applicant.
But after failing to personally serve them on Buyanga for the past three years, Jakachira, through his lawyers Tamuka Moyo Attorneys, yesterday filed another application at the High Court seeking an order to serve the said summons (for Buyanga’s civil imprisonment) by way of substituted service.
The rule on substituted service is invoked where the court permits service by another means. This can be because the defendant evades service of proceedings he or she knows are coming.
The approach in practice is that if a summons server makes three visits to the defendant’s address and is unable to serve the defendant, and it appears that the defendant ordinarily lives at the given address, substituted service will be allowed as a matter of course. A plaintiff is usually allowed by a substituted service order to serve by registered post or ordinary post.
In other jurisdictions, however, the courts have taken account of developments in communications and often allow service by email.
In this specific case, however, Jakachira wants the summons to be served via the local press after having failed to locate Buyanga on his three known residential and business addresses.
Failure to comply with the substituted service would attract a custodial sentence.
“I seek leave for substituted service of summons for civil imprisonment against Frank Buyanga Sadiqi who to the best of my knowledge and believe, I am unable to serve said summons personally,” Jakachira states in his latest court application.
“He is elusive insofar as effecting personal service on him is concerned and I have failed, despite successive attempts, to effect personal service of summons for civil imprisonment on him. Effecting personal service on Frank Buyanga is an insurmountable challenge as he is not easy to find, and appears determined to evade personal service.
“I issued out a writ of execution against the movable and immovable property of the defendant seeking satisfaction of the High Court order. The Sheriff of the High Court duly proceeded to attach the defendant’s property which was at his last known address. As a result of the above notice of seizure, the defendant embarked on a clandestine scheme to defeat the High Court order by having various individuals file interpleader applications to bar me from recovering my just dues.”
Jakachira added: “The only remedy left for me is to apply for leave to serve the said summons for civil imprisonment by way of substituted service. I am convinced that I have satisfied this honourable court with all the requirements necessary for the granting of this application. I accordingly seek leave to serve the summons for civil imprisonment in these proceedings by substituted service by the placement of an advert in the Herald newspaper.”