HUNGWE J: The applicants seek the
grant of interim relief in the form of a provisional order staying execution of
a writ issued against them pending the determination of an application for rescission
of judgment. This follows a default judgment granted under HC 6363/11 in which
matter the first respondent sued the applicants for payment of the sum of US$5000
000-00.
The
facts of this matter are that the first respondent issued summons against the
applicants under HC 6363/11 in July 2011. The summons were served by the second
respondent at 27 Watts Road, New Ardbennie Harare on a receptionist called
Vanessa Petro of Glens Removals. Applicants did not enter on appearance to
defend the action. Consequently the first respondent took out judgment by
default.
Pursuant
to this the first respondent caused to be issued a writ of execution. Second respondent attended at 27 Watts Road,
New Ardebennie to effect execution of the writ. It turned out that the property
to which the writ referred is owed by Quest Motor Corporation, but not either
of the applicants. Somehow the applicants got to know of the writ and filed the
present application.
Applicants
state that they never were aware of the summons against them till they were
alerted to the writ of execution. The applicants believe they have a good and bona fide defence to the first
respondent claim which the applicants believe will move the court to grant
rescission. They proceeded to enumerate the various grounds constituting their
defence to the claim.
The
first respondent on the other hand insisted that the applicants only acted with
despatch after a writ had been issued because their property was now under
threat. First respondent denied that the applicant have any defence to its
claim. First respondent maintained that the address for execution of the writ
is the same as that for service of the summons. As such there was no basis to
believe that their application for rescission will succeed as the applicants
were in wilful default.
The
issue for decision, in my view, is whether there was proper service of the
summons in HC 6363/11. If the summons were served correctly then the applicants
will be hard put to persuade this Court that they were not in wilful default
and therefore entitled to rescission of judgment. If however the summons were
not properly served, then it may well be easy for the applicants to discharge
the onus upon them to show that they were not in wilful default on the
application for rescission of judgment. It will therefore be proper to stay execution till that application is
finally determined.
Order
5 r 39(2)(d) provides that where process is to be served on a body corporate
such process may be served by delivery to a responsible person at the body
corporate's place of business or registered office; or by delivery to a
director or to the secretary or public office of the body corporate.
The
contention by the applicants is that 27 Watts Road, New Ardbennie, Harare is
not the registered office of the applicants nor is it their place of business.
It was never contended by the first respondent that the receptionist was a
director, or secretary or public officer either of the applicants
In
light of the provisions of Order 5 r 39 I came to the conclusion that there was
no proper service of process on the applicants. As such their prospects in the
application for rescission of judgment in HC 6363/11 are bright. The further
the balance of convenience favour the grant of the interim relief since a
failure to do so will imperil the rights of a third party who is not party to
these proceedings.
On
the premises therefore interim relief is granted as prayed for in the
Provisional Order by the applicants.
There
will be no order as to costs.
Bherebende
Law Chambers, applicant's legal practitioners
Venturas Samukange, 1st
respondent's legal practitioners
