A HARARE businessman has lost an appeal challenging the High Court’s decision to strike off his application for rescission of a default judgment given in a disputed sale of a US$380 000 property in Borrowdale.
The Supreme Court dismissed businessman Frank Humbe’s appeal with costs.
He was embroiled in an interminable legal battle dating back to 2015 with another businessman, Godfrey Munyamana and his company Sparkles Services, over the sale of a house in Borrowdale.
In his appeal, Humbe cited Desmond Muchina, Munyamana, Fadzayi Munyamana, Sparkles Services (Pvt) Limited, the Sheriff of the High Court, Tonderai Matingo and the Registrar of Deeds as first to seventh respondents, respectively.
As appellant, Humbe approached the High Court seeking rescission of a default judgment obtained by Muchina against Munyamana and his Sparkles Services under case number HC 11601/17.
He also wanted an order to set aside the sale in execution by the Sheriff arising from the same default judgment and the cancellation of Deed of Transfer number 2446/19 of number 67 Hogerty Hill in Borrowdale measuring 4 603m².
Humbe claimed that after buying the house, he took occupation although there was no transfer of property into his name.
He then issued summons to cause transfer of the property into his name.
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As summons were pending, Muchina and Munyamana were at the same time being sued for a debt under HC 11601/17, whereby Munyamana owed Muchina USS$352 851,30.
The matter was not defended, resulting in a default judgment being entered against Munyamana, which then prompted Muchina to seek Humbe’s eviction from the house.
Acting upon the writ, the Sheriff attached and sold the property in execution to Matingo, who then registered it in his name under Deed Number 2446/19.
In 2020, Matingo obtained an eviction order through a summary judgment under case number 3083/22.
Seeing that he was being ejected, Humbe came to the conclusion that Muchina and Munyamana had conned him.
He believed that the default judgment arose from a fraudulent scheme by the two.
Humbe claimed that the High Court default judgment was erroneous as it emanated from a fraudulent act.
High Court judge Justice Priscilla Munangati Manongwa dismissed his application.
Sitting on the bench of appeal, Justices Chinembiri Bhunu, Lavender Makoni, Felistas Chitakunye said: “The appeal be and hereby struck off the roll with costs. In the exercise of the court powers under section 25(2) of the Supreme Court Act [Chapter 7.13], the judgment of the High Court is set aside and substituted with the following: The application for rescission of judgment is dismissed with high costs on a higher scale.”
