HARARE businessman Frank Humbe has approached the Supreme Court appealing a High Court ruling that struck off his application for rescission of a default judgment given to suspected fraudster who sold his US$380 000 property in Borrowdale.
In his appeal, Humbe cited Desmond Muchina who was convicted of fraud for forgery that caused the attachment of the property in connivance with former MDC member Godfrey Munyamana and his wife Fadzai as respondents.
Other cited respondents include their company Sparkles Service Private Limited, Sheriff of the High Court and Registrar of Deeds and Tonderai Matingo who bought the said property.
According to court documents, Humbe had approached the High Court seeking rescission of a default judgement obtained by Muchina against Godfrey Munyamana and his company Sparkles Services under case number HC 11601/17.
He wanted the judgement to be rescinded and also an order to set aside the sale in execution by the Sheriff arising from the default judgement .
Number was also seeking 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 Munyamana and Sparkles Services.
He allegedly paid the money and took occupation of the property although there was no transfer of property into his name.
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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, unbeknown to Humbe, Muchina and 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 against 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 a 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.
The businessman alleged that the default judgement arose from a fraudulent scheme involving Muchina and Munyamana which was unearthed by the police, leading to the arrest and conviction of Muchina.
He submitted that the Sheriff attached and sold the property in execution unaware that the judgement resulting in such actions was predicated on fraud.
Humbe is of the view 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 said 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 the same was confirmed on March 1, 2023.
He added that Munyamana’s wife had no power of attorney to represent Sparkles Services since there was no resolution.
But, High Court judge Justice Priscilla Munangati Manongwa ruled that the absence of such express authority was not fatal to the proceedings before dismissing the point.
ln opposing the application, the respondents raised several preliminary points that the application was filed out of time, adding that Humbe was abusing court process. Justice Munangati Manongwa upheld respondents’ claim that Humbe was not a party to the proceedings which resulted in the default judgement and the execution.
The judge said Humbe did not have any rights affected by the default judgement he was seeking to rescind which led to the selling in execution of the property which legally does not belong to him.
The judge added that Humbe was 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.
She further ruled that Humbe's case is moot as it seeks a judgement on a pretended controversy when in reality there is none.
But, Humbe appealed the decision of the court saying Justice Munangati Manongwa erred at law in finding in disregarding that a judgement procured by fraud cannot stand.
He said the judge disregarded evidence of the conviction that was placed before the court saying at law a judgement can be set aside where judgement has been granted by default and in the absence between the parties of a valid agreement to support the judgement on the grounds of just a cause.
He also said the High Court erred in failing to find that he had the locus standi to seek rescission of a default judgement.
He submitted that Justice Munangati Manongwa erred in finding that the agreement of sale was cancelled,while in fact it was not cancelled .
The appeal is pending.
