Sometime
in February 2012 the appellant entered into an agreement of sale of a
motor vehicle with the respondent. The purchase price was agreed at
USD6,500=. The appellant paid USD4,800= and took delivery of the
motor vehicle. The appellant defaulted in the payment of the balance
of the purchase price as a result of which the respondent issued
summons out of the Magistrates Court in the same year.
In
response to the summons, the appellant gave consent to judgment as
claimed in the summons on 10 August 2012. The appellant undertook to
liquidate the debt at a rate of $400= per month. As fate would have
it, the appellant failed to meet the payment terms. As a consequence,
the respondent issued a writ of execution in respect of the judgment
debt on 23 October 2012.
On
26 October 2012, the appellant made an ex
parte
application for stay of execution of the judgment. He, at the same
time, filed an ex
parte
application for rescission of judgment. The rule
nisi
in respect of the two ex
parte
applications were apparently granted with a return date of 7 November
2012.
The
record of proceedings shows that the appellant made another ex
parte
application for rescission of judgment and stay of execution on 3 May
2013 with a return date of 20 May 2013.
It
is common cause that upon obtaining a rule nisi
on
3 May 2013, the appellant did not serve it on the respondent until 17
May 2013 when he effected service. Upon such service, the respondent
promptly responded on the same date raising some points in
limine
and opposing the confirmation of the rule nisi.
Upon
hearing the parties on the return date, the presiding magistrate
concluded that the application was not well founded and thus
discharged the rule nisi with costs on a higher scale.
The
appellant, being dissatisfied with the magistrate's decision,
appealed to this court. The grounds of appeal were couched as
follows:-
1.
The honourable court erred in fact and at law by dismissing the
appellant's application for rescission of judgment and stay of
execution without even analyzing the merits of the matter, and
denying the appellant the opportunity of filing an answering
affidavit as this would have assisted the court a quo in arriving at
a guided decision.
2.
By not affording the appellant opportunity to tender his answering
affidavit, the court a
quo
erred and the learned magistrate misdirected himself and all avenues
of impartiality were closed to the appellant, rendering the whole
judgment un-meritable and void.
3.
The learned magistrate erred in dismissing appellant's application
for rescission and allowing a judgment with an order of US$2,700= to
stand despite appellant tendering evidence that the amount was
US$1,700= and from that a total of US$1,400= had been paid leaving a
balance of US$300= meaning that if the judgment is allowed to be
executed, appellant will suffer unwarranted prejudice for a debt
which has long since been settled.
4.
The
learned magistrate
erred in failing to take into account the fact that the
appellant had vowed never to have entered a consent order of the said
email and such order was a fraudulent one, and even if such consent
had existed, it was never registered as an order of the court.
The
respondent attacked the grounds of appeal as not proper.
Counsel
for the respondent contended that the supposed grounds of appeal
pertained to procedural matters and such should have been brought as
a review if the appellant felt the presiding magistrate had not
conducted himself properly.
In
the first two grounds, the appellant alleges that he was denied the
opportunity to file an answering affidavit and so he was denied the
right to reply. In the third ground it is really a question of
disputing the sum owed, and, lastly ground 4 pertains to his denial
of ever entering into a consent order referred to in an email.
In
considering the above points in
limine
raised by respondent on the validity of the grounds of appeal, this
court is of the view that whilst there is merit in the submissions,
the circumstances of this case dictated that we hear the parties. The
appellant, being a self actor, seemed not to understand the import of
the points in
limine
raised. We thus decided to indulge the appellant and deal with the
grounds of appeal raised.
Grounds
1 and 2
In
these grounds, the appellant alleged that the presiding magistrate
erred by not allowing him to file an answering affidavit.
A
careful perusal of the record of proceedings shows that the appellant
was given the requisite hearing. He is the one who had brought the
application on an urgent basis and was duly given a return date. He
then did not serve the papers on the other party till the 17th
of
May 2013 for a matter to be heard on 20 May 2013.
The
points that decided the fate of the case were points in
limine
of which he was given the opportunity to respond to. The
circumstances of the points in
limine
were such that there was no need to analyze the merits of the case.
There had to be a proper application before the magistrate for him to
consider the merits.
Ground
3
Under
this ground, the appellant is virtually disputing the balance of the
debt and not the indebtness itself. This, on its own, would not be a
ground to rescind a judgment by consent. The appellant ought to
provide a good explanation of the circumstances that led to him
consenting to judgment in the sum as per summons when he did not owe
that much.
The
application the appellant brought before the magistrate had to be in
terms of the Magistrates' Court Act and the relevant Rules. In this
regard, section 39 of the Magistrates' Court Act [Chapter
7:10]
makes provisions for applications for rescission of judgment.
Section
39(1)(a) to (c) of the Magistrates Court Act [Chapter
7:10]
states that:-
“(1)
In civil cases the court may -
(a)
Rescind or vary any judgment granted by it in the absence of the
party against whom it was granted;
(b)
Rescind or vary any judgment granted by it which was void ab
origine
or was obtained by fraud of by mistake common to the parties;
(c)
Correct patent errors in any judgment in respect of which no appeal
is pending.”
Subsection
(2) thereof states that:
“(2)
The powers given in subsection (1) may only be exercised after notice
by the applicant to the other party and any exercise of such power
shall be subject to appeal.”
A
perusal of the ex
parte
application for rescission made before the Magistrates Court shows
that it fell foul of the above provisions. Not only was it made
without notice to the other party but it was also made without
averring to any of the grounds stated in subsection (a) to (c) above.
In
the founding affidavit, the appellant clearly acknowledged that he
had consented to the judgment and so the judgment was not in default.
In this regard, paragraph 2 of the founding affidavit, wherein he
stated that he entered consent to judgment, is very clear.
In
paragraph 5 of the same affidavit, the appellant leaves no doubt that
as at the time of the application for rescission the issue between
the respondent and the owner of the motor vehicle had been resolved
and the appellant was to pay to the respondent when he states that:
“The
1st
respondent filed a Notice of Set down and before the matter went for
pre-trial an agreement was reached between the parties to solve the
matter out of court as the respondent had solved his issues with
actual owner of the vehicle and it was agreed that the applicant will
pay the respondent and get the registration book of the vehicle,
which was to be handed over to the respondent's legal practitioners
and that the applicant will liquidate the debt in monthly instalments
of USD400= until cleared inclusive of agreed legal costs.”
The
applicant does not state that the judgment was void ab
origine
or was obtained by fraud or by mistake common to the parties and so
subrule (b) above in not the one relied upon.
In
Georgias
& Another v Standard Chartered Finance Zimbabwe Limited
1998 (2) ZLR 488 (S), the court held that:-
“When
considering an application for rescission of a judgment entered by
consent, the court should have regard to:
(1)
The reasonableness of the explanation proffered by the applicant of
the circumstances in which the consent judgement was entered;
(2)
The bona
fides
of the application;
(3)
The bona
fides
of the defence on the merits of the case which prima facie carries
some prospect of success. A balance of probability need not be
established.
Too
much emphasis should not be placed on any of these factors. They must
be viewed in conjunction with each other and with the application as
a whole. An unsatisfactory explanation may be strengthened by a very
strong defence on the merits. In general terms, what an applicant
must show is something which entitles him to ask for the indulgence
of the court.”
In
casu,
in one breath, the appellant admits giving consent to judgment and in
another breath denies consenting to judgment. The appellant could not
explain away the consent to judgment he signed and his own admission
as contained in paragraphs 2 and 5 of his founding affidavit.
Clearly,
the appellant is not being truthful.
The
lack of a cogent explanation as to why the consent judgment should be
rescinded show a lack of bona
fides
in the application.
The
appellant could also not proffer a plausible defence.
It
is apparent that the real issue is a dispute on the outstanding
balance. It may also be noted that Consent to Judgment signed by both
parties and filed at Marondera Magistrates Court on 6 March 2013
shows the total debt of USD2,700=. That debt comprised $1,700= as
capital debt and $1,000= for legal costs as at that date. That
consent to judgement states that:
“1
The defendant is liable to plaintiff in the capital amount of
US$1,700=.
2.
The defendant is liable for plaintiff's costs of suit to date
amounting to US$1,000=.
3.
The parties agree that judgment be entered accordingly.
4.
The defendant hereby undertakes to settle the capital amount and
legal costs amounting to US$2,700= by monthly instalments of US$500=
with effect from the 5th
April 2013 and thereafter on the 5th
day of each and every subsequent month until the debt is paid in
full.”
On
6 March 2013 the above was granted by the court.
In
fulfilment of his obligation, as outlined above, on 23 April 2013,
the appellant deposited a sum of US$400= into the respondent's bank
account. On 24 April he filed with court a notice stating that:
“Be
pleased to take notice that the defendant hereby files attached
receipt as proof of April 2013 payment of US$400= made into
plaintiff's account as per consent order entered between the
parties.”
The
above scenario puts paid to the above ground of appeal. I am thus of
the view that the appeal has no merit at all….,.
Accordingly,
the appeal is hereby dismissed with costs on the general scale.
