Judgment
No S.C. 6\03
Civil
Appeal No 141\02
FRANCIS
PAKETH v YANANAI CHIBONDA
SUPREME
COURT OF ZIMBABWE
SANDURA
JA, ZIYAMBI JA & MALABA JA
HARARE
FEBRUARY 27, 2003
The
appellant in person
W.
Risiro,
for the respondent
SANDURA JA:
This is an appeal against a judgment of the High Court which
dismissed with costs the appellants application
for the rescission
of a default judgment granted in favour of the respondent, entitling
the respondent to evict the appellant from
Stand No 2893 in the
suburb of Warren Park 1 in Harare (the property). After
hearing the appellant and counsel for the respondent,
we dismissed
the appeal with costs and indicated that the reasons for that
decision would be given in due course. I now set them
out.
The
following facts were common cause. At the relevant time the
property, which was occupied by the appellant, was owned by the
appellants brother, Thomas. In February 2000, Thomas and the
respondent (Yananai) concluded a sale agreement in terms
of
which Thomas sold the property to Yananai. After the purchase price
was paid, the property was transferred to Yananai.
Thereafter,
when Yananai required the appellant to vacate the property the
appellant refused to do so, alleging that he had spent
the sum of
$200 000 in the development of the property and that Thomas had
undertaken not to sell the property before refunding that
sum to him.
As a result, Yananai filed a court application in the High Court
seeking the appellants eviction from the property.
When
the appellant did not oppose the application, a default judgment was
granted in favour of Yananai, on 13 September 2000, and
the appellant
was later evicted from the property on 6 October 2000.
Aggrieved
by what had happened, the appellant filed a court application in the
High Court in September 2001 seeking an order rescinding
the default
judgment. That application was dismissed with costs in April 2002.
Dissatisfied with the outcome of the application,
the appellant
appealed to this Court.
In
the application for the rescission of the default judgment the
appellant explained his failure to oppose the application for
his
eviction, and the delay in filing the application for the rescission
of the default judgment. In addition, he explained why
he believed
that he had a good defence to the application for his eviction. He
gave two reasons. The first was that Thomas had
undertaken not to
sell the property before refunding to him the sum of $200 000, and
the second was that the sale was a fraudulent
scheme designed to
deprive Thomass wife of her share of the property upon divorce.
The learned
judge in the court a
quo
was prepared to give the appellant the benefit of the doubt in
respect of his failure to oppose the application for the eviction
order, and his failure to make a timeous application for the
rescission of the default judgment. However, the learned judge
dismissed
the application on the ground that the appellant had not
made out a prima
facie
case for the rescission of the default judgment. He said the
following:-
The
critical point, it appears to me, is whether the applicant is
entitled to raise the above issues as against the respondent.
In
her opposing affidavit, the respondent challenges the applicants
standing in objecting to the sale between herself and his
brother
when the applicant is not a joint titleholder of the property. I
agree that the applicant cannot seek to enforce an agreement
with his
brother through the respondent. The respondent was not party to the
agreement for the payment of $200 000.00 to the applicant.
The
applicant cannot also claim or enforce his brothers wifes
rights. Thus, while the applicant may be given the benefit
of the
doubt pertaining to the requirement that the default must not be
wilful for rescission to be considered, he clearly has not
made out a
prima
facie
case to warrant interference with the judgment.
I entirely
agree. There was, therefore, no basis on which the appellant could
oppose the respondents application for his eviction.
This was
appreciated by the appellants own lawyers at the time who, on 4
October 2000, wrote to the respondents lawyers as
follows:-
We
have since advised our client that their private arrangement (for
payment of $200 000 to the appellant) cannot be used as a legal
argument to deny your client his rights to vacant possession to this
property. Consequently our client has requested us to plead
with
yourselves and your client to relocate to the cottage as a tenant to
give him sufficient time to find alternative accommodation.
We
sincerely apologise to your client for the inconvenience caused.
The
appellants request for permission to move to the cottage was
rejected. However, considering the contents of the letter
set out
above, it is surprising that the application for the rescission of
the default judgment was ever made.
In
the circumstances, the appeal was devoid of merit and was, therefore,
dismissed with costs.
ZIYAMBI
JA: I agree
MALABA
JA: I agree
V.S.
Nyangulu & Associates,
respondent's legal practitioners