DISTRIBUTABLE
(30)
Judgment No. SC 34/05
Civil
Appeal No. 210/03
KUMURAI TICHAPERA
MUGONI v (1) BEVERLEY
BUILDING SOCIETY (2)
THE SHERIFF FOR ZIMBABWE (3) G GARANDE
(4) THE REGISTRAR
OF DEEDS
SUPREME
COURT OF ZIMBABWE
SANDURA
JA, ZIYAMBI JA & GWAUNZA JA
HARARE,
MARCH 22, 2005
A
M Gijima, for the
appellant
A
Mugandiwa, for the
first and third respondents
No
appearance for the second and fourth respondents
ZIYAMBI JA: This is an appeal
against the dismissal by the High Court of the appellants
application to have the sale of his
property by auction set aside.
The history of the matter is as
follows:
On 5 November 1999, default
judgment was obtained by the first respondent against the appellant
for the sum of $44 573.62. No payment
having been made by the
appellant, a writ of execution against the appellants property was
issued on 14 March 2000. On 13 April
2000, a nulla
bona return was issued
by the Deputy Sheriff and, on 30 November 2001, the appellants
immovable property was sold by public auction.
The third respondent was, on 17
December 2001, declared the highest bidder and the sale was confirmed
on 14 January 2002.
On or about 17 January 2002, the
appellant successfully filed an application in the High Court to set
aside the confirmation of the
sale. In its order, the High Court
directed the Sheriff to consider, in terms of Rule 359 of the High
Court Rules, the objections
lodged by or on behalf of the appellant
on 17 January 2002.
In compliance with the court
order, (case number HC 731/02 refers), the Sheriff, on 21 March 2002,
conducted a hearing at which all
the parties were represented.
After considering the arguments advanced by the parties, the Sheriff
dismissed the appellants
objections and confirmed the sale. The
appellant then sought, by a further court application to have the
Sheriffs decision set
aside on the grounds, inter
alia, that the Sheriff
misdirected himself by failing to give due consideration to his
objections. The learned Judge in the court a
quo, having carefully
considered each of the above grounds, dismissed the appellants
application. It is against this judgment that
the appellant now
appeals.
At the hearing before us Mr
Gijima
applied, and was granted leave, to amend the grounds of appeal to
include the following ground namely:
That the second respondent did
not comply with Rules 348 & 348A of the High Court Rules such
that the sale in execution was invalid.
This
point was not taken before the High Court and was being raised for
the first time on appeal. The appellant submitted that this
was a
point of law which could be raised for the first time on appeal.
It is trite that a question of
law may be raised for the first time on appeal. See Nissan
Zimbabwe (Private) Limited
v
Hopitt (Private)
Limited 1997 (1) ZLR
569 (S). However this will usually not be allowed where new matter
is introduced or where the raising of the point
would result in
unfairness or injustice to any of the interested parties.
Mr Mugandiwa,
who appeared for the first and third respondents, however, argued
that the point being raised was one of fact in that there was no
concession by the Sheriff that there was no compliance with the
Rules; the appellant had pointed to no tangible evidence on the
record of such non-compliance; and further, the matter was
contentious and, being an issue of fact, could not be raised for the
first
time on appeal in the absence of a successful application to
lead further evidence on appeal.
There
is substance in the argument advanced by Mr Mugandiwa.
There is, indeed, no evidence on the record of non-compliance with
the Rules in question and this raises the issue whether or
not the
Sheriff complied with the Rules aforementioned. That question is
undoubtedly one of fact which is improperly before us
since no
application for the adduction of further evidence on appeal was made
or granted.
The other grounds of appeal
relied upon by the appellant could not take the matter any further.
The property was transferred to
the third respondent on 17 June 2002,
and in the absence of proof of bad faith or fraud the sale could not
be impeached.
For the above reasons, we
considered the appeal to be devoid of merit and dismissed it with
costs at the end of the hearing.
SANDURA JA: I
agree.
GWAUNZA
JA: I agree.
Musunga & Associates,
appellant's legal practitioners
Wintertons,
first and third respondents' legal practitioners
