There is a strengthening of the relationship between non-legal
practitioners and creditors attributable to a number of factors
which include the following.
The legal practitioners' costs involved in debt collection
are extremely high for an average creditor. Whilst the law
recognizes that in principle a successful creditor should be
reimbursed by the debtor for the legal expenses incurred in
bringing the law-suit, in practice the tariff laid down by the
rules of court is so unrealistic that a creditor can recover from
the debtor only a small fraction of the legal fees legitimately
charged by his or her legal practitioner. Moreover the collection
commission which the legal practitioner is obliged to charge his
client for collecting an uncontested debt is recoverable from the
debtor only where there is an agreement between the creditor and
the debtor to that effect.
The legal procedure is time consuming and cumbersome. The
courts are overloaded with cases due to the shortage of court
officials. A long period of time lapses before a creditor can
obtain judgment and proceed by way of a writ of execution. The
process for civil imprisonment is long and the creditor is required
to contribute to the upkeep of the debtor whilst in prison. In any
event, civil imprisonment on the ground of inability to fulfil a
contractual obligation is unconstitutional in terms of the new
Constitution of Zimbabwe Amendment (No. 20). The service of process
by the sheriffs and messengers is slow. They too are overloaded
with work and cannot cope with the existing backlog. They also
charge for unsuccessful attempts to serve the debtor.
The procedure is too formal and there are few options available
to the debtor. The debtor admits, consents to judgment or files a
defense to the claim. There is no provision for an enquiry by the
court into the financial status of the debtor at the onset in order
to ascertain whether the debtor has the means to satisfy the claim.
Such a practice would shorten the court process and avoid wasting
time and costs and resources with a case which at the end of the
day will not be enforceable.
Legal practitioners are now reluctant to take up debt
collection work because the collection commission prescribed by
their by-laws is low when compared to the fees they are permitted
to charge for other work.
The information contained in the summons is often complicated
and confusing to laymen who will simply ignore them thereby further
delaying the finalization of the matter.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Service of court processes goes to the jurisdiction of the Court to hear a matter. Parties must as a matter of law and practice ensure that the opposing party not only receives and acknowledge service of processes but also that the service effected is proper under Nigerian law.
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