By A Correspondent| A Harare businessman Frank Humbe has approached the Supreme Court appealing the whole judgement of the High Court that struck off his application for rescission of a default judgement given to suspected fraudster who later on sold the US$380 000 property in Borrowdale.
Humbe cited Desmond Muchina who was convicted of fraud for forgery that caused the attachment of the property in connivance former MDC member Godfrey Munyamana and his wife Fadzai, their company Sparkles Service Private Limited, Sheriff of the High Court and Registrar of Deeds and Tonderai Matingo who bought the said property as first to Seventh respondents respectively.
According to the court documents Humbe approached had the High court seeking rescission of a default judgement obtained by Muchina against Godfery Munyamana and his company Sparkles Services under case number HC 11601/17.
Humbe wanted the judgement to be rescinded and set aside the sale in execution by Sheriff arising from the default judgement and cancellation of the Deed of Transfer number 2446/19 of number 67 Hogerty Hill home in Borrowdale Estate measuring 4603 m².
The circumstances of the matter are that
Humbe entered into an agreement of sale of property for US$380 000 with Godfrey Munyamana and Sparkles Services.
Humbe allegedly paid the money and took occupation of the property although there was no transfer of property into his name.
The businessman then caused summons to be issued in Case Number 11367/15 to compel transfer of the property into his name.
As summons was pending, unknown to Humbe, Muchina and Godfrey Munyamana were being sued for a debt under HC 11601/17 in which Munyamana purported to owe Muchina the sum of USS$352 851.30.
However, the matter was not defended resulting in a default judgement being entered against Munyamana. Upon granting of the order, Muchina caused a Writ of Ejectment to be issued intending to evict Humbe.
Acting upon the writ, the Sheriff attached and sold the property in execution to Matingo and upon confirmation of the sale, transfer was immediately effected and the property was registered in the name of Matingo under Deed Number 2446/19.
In 2020, Matingo obtained an eviction order through summary judgement under Case Number 3083/22. Humbe then entered into a deed of settlement with Matingo that he vacates the property.
Humbe however challenged that Muchina and Munyamana connived and created an impression that Munyamana had failed to pay a debt that he owed to Muchina when there was no such debt and thats the default judgement and writ of execution they were granted in the High Court.
The businessman said the default judgement arised from a schemed and fraudulent plan arrangement between Muchina and Munyamana which was unearthed by the police investigations leading to the arrest and conviction of Muchina.
He submitted that the Sheriff attached and sold the property in execution unaware that the judgment resulting in such actions was predicated on fraud. Humbe is of the view that in this circumstance no rights had been transferred as the sale was premised on fraud.
Humbe said Muchina and Munyamana deliberately faked the existence of a debt resulting in the default judgement with the aim of depriving him of his rights and interest in the property.
He argued that the default judgement was granted in error saying if the court had been aware of the correct facts, it would not have granted it.
He sais in that regard the judicial sale and the subsequent transfer of title is tainted by fraud and that he failed to timeously seek rescission of the default judgement because he learnt of the fraud late when same was confirmed on March 1, 2023.
Humbe challenged on preliminary points that Fadzai Munyamana had no power of attorney to represent Sparkles Services since there was no resolution but High Court Judge justice Priscilla Munangati Manongwa said the absence of such express authority is not fatal to these proceedings before dismissing the point.
ln opposing the application the respondents raised several preliminary points that the application was filed out of time, that Himbe is abusing court process, saying he lacked locus standi to rescind the default judgement, that order sought is defective and that the application has been overtaken by the events and rendered academic and moot.
However on lacking locus standi the respondents submitted that the agreement was canceled on November 15, 2014 but Humbe said he should have been given audience since he obtained Muchina’s criminal conviction which he believed has the tendency of setting aside the default judgement which is premised on fraud.
But Justice Munangati Manongwa upheld respondents claim that he lacked locus standi saying Humbe was not a party to the proceedings which resulted in the default judgement and the execution.
The judge said he does not have any rights affected by the default judgement he seeks to rescind which resultantly led to the selling in execution of the property which legally does not belong to him.
Munangati Manongwa said Humbe is not protected in terms of R29 (1) of the High Court Rules as he does not qualify as an affected party so as to empower the court to correct, rescind or vary the default judgement.
The judge said Humbe has no right to test Muchina and Munyamana their agreement despite Muchina having been convicted for fraud in the same matter.
The judge also ruled that Humbe’s case is moot as it seeks a judgement on a pretended controversy when in reality there is none.
She said the allegations of fraud has been raised in the court but view that this application should not be entertained.
She ruled that there is no dispute between Humbe and the respondents before dismissing the matter.
But Humbe appealed the decision of the court saying Justice Munangati Manongwa erred at law in finding in disregarding that a judgment procured by fraud cannot stand
He said the judge disregarded evidence of the conviction that was placed before the court saying at law a judgment can be set aside where judgment has been granted by default and in the absence between the parties of a valid agreement to support the judgment on the grounds of just a cause.
He also challenged the High Court that they erred in failing to find that he has locus standi to seek rescission of default judgment.
He submitted that Justice Munangati Manongwa erred in finding that the agreement was canceled while in actual fact it was not canceled.
The appeal is pending.