CHITAKUNYE
J:
This
is an application for the setting aside of a default judgement
obtained by the first respondent in HC2469/13 which had the effect of
cancelling the applicant's title deeds to certain immovable
property registered in his name.
The
applicant was not a party to the default judgement but its provisions
affected his title to the immovable property.
The
brief history of the matter was to the effect that applicant
purchased the immovable property, being Stand 3206 Mabelreign
Township 17 of Greeba of Mabelreign, Harare from the fifth
respondent. At the time of such purchase the first respondent was in
occupation. The applicant alleged that prior to the purchase his
family members and himself had viewed the property at varying times
and had been guided by the first respondent during such viewing.
After
purchase applicant successfully sued the fifth respondent for
transfer of the property into his name under case no. HC3931/11.
After obtaining title under deed of transfer no.4941/11, applicant as
owner, demanded rentals from the first respondent. After a few months
of paying rentals the first respondent resisted further rent payments
claiming that he was in fact the owner and not tenant in the
property.
Applicant
thereafter sued the first respondent for eviction in case no.
HC11588/11. The first respondent defended the suit.
Upon
the closure of pleading a pre-trial conference was held. The sole
issue referred for trial was: whether or not the first respondent had
a defence to the claim.
It
is pertinent to note that during that pre-trial conference certain
issues were raised by the presiding judge. Though parties were not
agreed on the exact nature of the issues, it was common cause that it
was after this pretrial conference that the first respondent issued
summons in case no. HC2469/13. In that action the first respondent
was seeking the nullification of the transfer of the property in
question from him to the second respondent and all subsequent
transfers and the cancellation of applicant's title deed.
In
HC2469/13 the first respondent cited Lalapanzi Properties (Private)
Limited, Frank Buyanga, Gildastone Holdings (Private) Limited, the
applicant and the Registrar of Deeds. Of the five defendants only the
applicant entered appearance to defend. The applicant proceeded to
file a comprehensive plea.
In
spite of the plea filed by applicant which plea raised, inter alia,
issues of estoppel and unjust enrichment, the respondent through his
legal practitioners applied for default judgment against the
defendants who had not entered appearance to defend without advising
applicant of such a step or citing him.
The
order applied for included a substantive order against applicant. The
order granted was as follows:-
“It
is ordered that:-
1.
The transfer of Stand 3206 Mabelreign Township 17 of Greeba of
Mabelreign, measuring 1065 square metres situate in the District of
Salisbury also known as 20 St. Stephens Road, St. Andrews Park,
Harare from applicant to 1st
respondent passed on 14th
January 2010 under deed of transfer No. 5210/2010 and all subsequent
transfers under deed of transfer Nos. 9360/2010 and 4941/11 be and is
hereby declared null and void.
2.
The third respondent be and is hereby ordered and directed to cancel
Deed of Transfer Nos. 4941/2011 in favour of 4th
defendant in the main matter and restore title to applicant under
deed of transfer No. 8780/2002 or if no longer be practical, under a
new title deed.
3.
The Sheriff of Zimbabwe be and is hereby directed and authorised to
sign all necessary papers to effect transfer back to applicant's
name.
4.
The 1st
and 2nd
respondents shall pay applicant's costs of suit on a legal
practitioner and client scale.”
The
order was granted on the 10th
July 2013.
The
above order was not immediately brought to the attention of
applicants' legal practitioners.
On
1 August 2013 applicant's legal practitioners wrote a letter to the
first respondent's legal practitioners urging them to replicate and
to indicate the status of the case. Upon not receiving any response
applicant's legal practitioners wrote another letter inquiring on
the same on 18 September 2013. It was only then that on 23 September
2013 the first respondent's legal practitioner replied indicating
that she was having problems with her client as he had not paid her
fees and so as soon as he paid she would attend to the closing of the
pleadings and applying for a pre-trial conference.
At
that point 1st respondent's legal practitioner did not disclose to
applicant's legal practitioner that she had in fact obtained a
default judgment against the other defendants.
The
applicant alleged that it was only on 5 March 2014 that the first
respondent's legal practitioner advised applicant's legal
practitioner of the default judgment but did not furnish it or
disclose its contents.
The
first respondent's legal practitioner only produced the order in
cross examining the applicant in HC11588/11 on the 7th March 2014.
Prior to this she had not heeded applicant's legal practitioner's
request to be shown the order. Due to the ambush nature by which the
order was produced, the trial in HC11588/11 court was adjourned.
This
application is therefore brought in order to set aside that default
judgment.
The
application is premised on two grounds.
(i)
Firstly, applicant alleges that the judgment be set aside in terms of
Rule 449(1)(a) of the High Court Rules, 1971 as amended.
(ii)
The second ground advanced is a common law ground in which he alleges
the judgment was obtained on the basis of fraud and error.
The
first respondent opposed the application.
He
contended that applicant has no locus
standi
to seek rescission of a default judgment where he was not part to. He
contended that in terms of Rule 63 of the High Court Rules only the
party against whom a default judgment was obtained can seek its
rescission.
The
applicant's counsel submitted that the order was erroneously
granted by the court in light of the fact that the order affected the
interests of a person who was not a party to it and who had filed a
comprehensive plea in the main case. The order also ignored the
contents of the plea which, if accepted by a trial court, would
disentitle 1st
respondent to the relief sought against all the defendants.
In
this regard the applicant based his application on Rule 449(1)(a) of
the Rules of the High Court, 1971 as amended.
The
applicant's counsel argued that the first respondent's contention
that applicant was not party to the application for default judgment
and so cannot seek its rescission is not in line with the above Rule.
In
this case applicant is not seeking rescission in term of Rule 63 but
Rule 449(1)(a) of the Rules. There is a clear distinction between
rescission under Rule 63 of the High Court Rules and setting aside
under Rule 449(1)(a): (see Bopoto
v Chikumbu
& Others
1997 (1) ZLR 1).
Rule
63(1) provides that:-
“A
party against whom judgment has been given in default, whether under
these rules or under any other law, may make a court
application,……………., for the judgment to be set aside.”
Rule
449(1)(a), on the other hand, provides that:-
“The
court or a judge may, in addition to any other power it or he may
have, mero
motu
or upon the application of any party affected, correct, rescind or
vary any judgment or order -
(a)
that was erroneously sought or erroneously granted in the absence of
any party affected thereby.”
It
is apparent that Rule 63(1) expressly provides that only a party
against whom a judgment has been given in default has locus
standi
to apply for it to be set aside.
Under
Rule 449(1)(a) one does not need to have been a party to the
application for default judgment for one to be able to apply for the
setting aside of the judgment. The applicant is only required to show
that it is affected by the judgment or order and that such order was
erroneously sought or granted.
In
Matambanadzo
v
Goven
2004 1 ZLR 399 (S) court considered the question of locus
standi
under Rule 449(1)(a) and held that:-
“..
a party affected by a judgement or order that was erroneously sought
or granted in his absence may apply for the rescission of the
judgment or order. To show locus
standi,
the applicant must show that he has an interest in the subject-matter
of the order sufficiently direct and substantial to have entitled him
to intervene in the original application upon which the order was
granted.”
In
Tiriboyi
v
Jani & Another
2004 (1) ZLR 470 (H) court held that:-
“…
the
purpose of Rule 449 is to enable the court to revisit its orders and
judgments to correct or set aside its orders and judgments given in
error, in situations where to allow such to stand on the excuse that
the court is functus
officio
would result in an injustice and would destroy the very basis upon
which the justice system rests. It is an exception to the general
rule, and must be resorted to only for purposes of correcting an
injustice that cannot be corrected in any other way. The Rule goes
beyond the ambit of mere formal, technical, and clerical errors and
may include the substance of the order or judgment. The Rule is
designed to correct errors made by the court itself and is not a
vehicle through which new issues and new parties are brought before
the court for trial. The three requisites that have to be satisfied
for relief under the Rule are:-
(1)
that the judgment was erroneously sought or granted;
(2)
that the judgment was granted in the absence of the applicant; and
(3)
that the applicant's rights or interests are affected by the
judgment.”
At
page 473C-D the learned judge in that case opined that:-
“Once
these three factors are satisfied, the applicant is entitled to
succeed and the court should not inquire into the merits of the
matter to find 'good cause' upon which to set aside the order or
judgment in issue.”
(also
Grantully
(Pvt) Ltd & Another
v UDC
Ltd
2000 (1) ZLR 361 (S) and Banda
v Pitluk
1993 (2) ZLR 60 (H)).
It
may also be said that court will not be deceived by form as being one
originating from a default judgment, court will look at the substance
of the order and its effect.
In
casu,
it is common cause that whilst applicant was a party to the main
action, this was not the case in the application for default
judgment. Despite not being party to that application, the order
substantially affected applicant. The applicant had a direct and
substantial interest in the subject matter as he was the holder of
title in the subject matter by virtue of Deed of Transfer No.
4941/11. The order had the effect of nullifying applicant's title
deed. Clauses 1 to 3 of the order cited above are quite clear on
this.
The
order declaring deed of transfer no. 4941/11 null and void and
cancelling same was granted in the absence of the holder of such
title, the present applicant. This was applied for and obtained in
spite of the fact that applicant had filed a comprehensive plea in
defence of his title.
It
cannot by any stretch of imagination be said that applicant was not
affected by the default judgment. Clearly his title to the property
was surreptitiously taken away from him without his participation in
that process. The true nature and substance of the order in question
is that a default judgement was entered against applicant.
As
a party affected, applicant is perfectly entitled to seek the setting
aside of that order.
In
seeking the setting aside of the order a party must show that not
only was he affected but also that the order was erroneously sought
or erroneously granted.
On
this aspect applicant's counsel argued that the errors comprised:-
(i)
firstly
in the seeking of the default judgment when it was clear from
applicant's plea that one of the questions in issue was whether
first respondent should be estopped from obtaining the relief he
seeks on the basis of his conduct which conduct led applicant to buy
the property;
(ii)
Secondly, in seeking a default judgment which nullified the title of
a person who was not in default in the action; and
(iii)
thirdly, in the granting of an order nullifying applicant's title
when applicant had put up a defence that if successful would entitle
him to retain the property.
The
first respondent's counsel contended that the judgement was not
granted in error as it was granted in terms of Order 9 Rule 58; all
the pleadings which had been filed were placed before the judge when
he granted the order and the parties from whom the relief was being
sought were duly served in terms of the Rules but chose not to enter
appearance to defend. Counsel contended that as applicant's plea
was on record the judge considered it as well and so it cannot be
said applicant's position was not heard.
I
did not hear counsel to seriously suggest that granting an order
cancelling the title deed of a party who had entered appearance to
defend and had filed a comprehensive plea without hearing him was not
an error.
In
my view, the error on the part of the court was,
inter
alia,
that despite being aware of the applicant's interest by virtue of
the plea filed of record, the court proceeded notwithstanding
applicant's absence to pass a judgment that affected applicant's
title to the property in question without hearing applicant.
The
first respondent's contention that his legal practitioner had,
after obtaining the order, written a letter to the Registrar of Deeds
not to action the order pending the determination of applicant's
contestation did not take away the fact that the order affected
applicant and virtually made his continued challenge in HC2469/13, a
mere academic exercise.
The
order remained extant despite that letter and could be enforced
anytime without notice.
The
first respondent's legal practitioner confirmed this when in
paragraphs 15 and 16 of her internal memo to her senior Mr. Sinyoro
she wrote that:-
“On
28 August 2013, I wrote a letter to the Chief Registrar of Deeds
requesting him to suspend cancellation of current title deed since
there was an opposition which needed to be dispensed with first.
I
authored the above mentioned letter because I was afraid that client
would seek to effect the Order using other lawyers behind my back as
well as without affording Mr. Mashingaidze's opposition to be
dispensed with. My client was being evasive with regards to payment
of my fees.”
This
serves to confirm that the legal practitioner realised she had
obtained a judgment which was enforceable against applicant.
I
am of the view that this is a proper case for court to set aside the
default judgment.
The
applicant's counsel further submitted that the default judgment may
also be set aside at common law on the ground of fraud.
In
this regard he referred to the words of GUBBAY JA as he then was in
Mudzingwa
v Mudzingwa
1991 (4) SA 17 (ZS) at page 22J wherein the learned judge said that:-
“Furthermore,
it is firmly established that a judgment can only be rescinded under
the common law on one of the grounds upon which restiitutio
in integrum
would be granted, such as fraud or some other just cause, including
justus
error….”
The
fraud being alleged pertains to the actions of first respondent
through his legal practitioner.
The
basic circumstances relied upon is that: at the time of making the
application for default judgment first respondent's legal
practitioner was fully aware of the nature and extent of applicant's
plea. The plea was to the effect that first respondent was not
entitled to any judgment in his favour due to his conduct; that is
one of estoppel. The applicant had in his plea explained the basis
for alleging so. Despite this knowledge the first respondent's
legal practitioner sought a substantive order against applicant. She
did so without citing the applicant. She virtually sought to
undermine the applicant's cause.
It
was also alleged that at the time first respondent's legal
practitioner was pursuing the default judgment she was ignoring
letters from applicant's legal practitioners asking her to close
the pleadings and inquiring on the status of the case.
It
was only after obtaining the default judgment that 1st respondent's
legal practitioner responded to applicant's letters by advising
that her client had not paid her and so she was not doing work for
him till he paid. As it later turned out this was not true as in
about the time she was expected to close pleadings she was applying
for default judgment.
As
has already been alluded to earlier, after obtaining the default
judgment, 1st respondent's legal practitioner did not advise
applicant's lawyers till about 2 days before the trial for 1st
respondent's eviction in HC11588/11. Even then the order was not
furnished to applicant's legal practitioner despite request. The
order was only produced in cross examining applicant. This was a
deliberate attempt at ambushing applicant with the contents of the
order which clearly showed that applicant's title deed had been
cancelled and so he had no right to evict first respondent.
The
applicant's counsel argued that the order was produced in such a
manner as to defeat applicant's application for the eviction of 1st
respondent.
It
was in these circumstances that applicant alleged fraud.
Fraud
generally consists in knowingly making a false representation of fact
with the intention to defraud the party to whom it is made, and such
false representation actually causes prejudice or is potentially
prejudicial to another.
In
casu,
when the first respondent's legal practitioner applied for default
judgement she was aware of the contents of applicant's plea. The
nature of the plea was such that if successful it would not entitle
first respondent to the relief he was seeking. She was aware
applicant was contesting the claim for cancellation of his title
deed.
Despite
this knowledge 1st respondent's legal practitioner applied for the
cancellation of applicant's title deed without citing the applicant
or even serving him.
In
this way first respondent's legal practitioner misrepresented that
her client was entitled to judgment even against the applicant whom
she had not cited and who had in fact filed a plea in the main case
and against the other defendants. Due to that misrepresentation 1st
respondent obtained a default judgment cancelling applicant's title
deed. This was clearly prejudicial to applicant.
I
am of the view that in the circumstances of this case the default
judgment was obtained under misrepresentation. This is a case whereby
the applicant ought to have been cited and allowed to participate in
the application as the relief being sought included the cancellation
of his title deed.
The
application ought to succeed with costs on a punitive scale.
Costs
On
costs the applicant sought:-
1.
That the costs of this application be paid by the first respondent's
legal practitioner, Ruth Mukozho de
bonis propriis
on the higher scale;
2.
That she should not charge her client for the application for default
judgment under HC2469/13 and also defending this application; and
lastly
3.
That the legal practitioner should be ordered to report herself to
the Law Society of Zimbabwe for investigation of her conduct in this
matter.
The
applicant's counsel submitted that 1st respondent's legal
practitioner's indiscretion is what led to this application. This
indiscretion comprised that the legal practitioner made an
application for default judgment which she knew was not appropriate
as the relief sought affected a party who had entered appearance to
defend. She knew the plea had been filed. The nature of the plea was
such that it disentitled her to obtain that judgment until final
argument of the matter.
Despite
this first respondent's legal practitioner obtained the default
judgment without citing or serving applicant. She thereafter kept
that as a closely guarded secret to only produce it in cross
examining applicant in the trial for the eviction of 1st
respondent.
In
support of this argument applicant's counsel cited a number of case
authorities were costs de
bonis propriis
had been awarded against legal practitioners in varying
circumstances.
The
first respondent's counsel contended that the conduct by the first
respondent's legal practitioner was above board and so costs should
not be ordered against her. Counsel made effort at distinguishing
cases cited by applicant's counsel from the present case.
The
circumstances of this case show that applicant may be justified is
seeking costs against the first respondent's legal practitioner.
It
is pertinent to note that at the time of applying for a default
judgment first respondent's legal practitioner was aware that the
relief she was seeking would affect applicant's title to the
property in question. She was also aware applicant was relying on
this title in seeking the eviction of the first respondent from the
property in question. The legal practitioner was further aware of the
nature of applicant's plea which put all the allegations by the
first respondent into issue.
Further
upon obtaining the judgement aforesaid the legal practitioner kept
that information to herself till two days before the date for the
eviction trial. When asked to furnish applicant's legal
practitioner with a copy as is expected amongst professional lawyers,
she did not.
On
the date of trial itself she waited till she was cross examining
applicant to produce the order.
Clearly
the manner in which respondent's lawyer conducted herself fell
short of what is expected of her as a legal practitioner. Her conduct
smacks of dishonesty in an attempt to win her client's case.
As
noted by GILLESPIE J in Founders
Building Society v
Dalib (Pvt) Ltd & Others
1998 (1) ZLR 526 (H) at p529A-B:
“'Repetitively,
as all aspects of practice unfold, the practitioner finds an
insistence on fair dealing and good faith whether in his relationship
with his client, his adversary, or any other. Integrity has been
emphasised as a required 'fundamental quality' of all who would
practice law… attorneys are often under pressure from clients to
engage or assist in some impermissible act or omission, assertion or
concealment, which clients hope will extricate them from some
difficulty or gain them some advantage. That being so, especial
effort must be made by every practitioner to ensure that all his
dealings are strictly honourable.' (quoting from Lewis Legal
Ethics 123).”
The
learned judge went on to say that:-
“The
courtesy of giving fair warning to other lawyers of an intention to
take a technical point is one rather jealously guarded by the
profession. One knows of a standard question, put to all who are
obliged to take the professional oral examination in ethics. It is
designed to elicit the response that the failure to give fair
warning, before steps are taken, for instance, to bar an opponent or
to take a technical point, is a discourtesy. It may result in an
adverse order of costs against an attorney should costs be incurred
in undoing what was done without warning.” (@ p 529B-C)
At
p534E-F the learned judge further stated that:-
“….
the party who proceeds to claim default judgment in circumstances
where he may be accused of snatching at a judgment may well be held
accountable for unnecessary proceedings generated by his deviousness
or pigheadedness.”
See
also Minister
of Home Affairs & Others
v Vuta
1990
(2) ZLR 338 (S).
In
casu,
the respondent's legal practitioner upon getting a default judgment
in circumstances alluded to above sought to use it against applicant
in a manner that was unethical. She sought to spring it as a surprise
in the cross examination of applicant to show that applicant no
longer had title to the property he was seeking the eviction of the
first respondent from. But surely that title had been surreptitiously
cancelled in dishonourable circumstances.
Despite
this first respondent's legal practitioner fiercely resisted the
setting aside of the default judgement obtained when common sense
should have dictated that the order, in as far as it affected
applicant's title, ought to be set aside.
The
legal practitioner's resistance was not in good faith at all. I
detect an element of mala
fides.
The
applicant has been unnecessarily put out of pocket by the conduct of
that legal practitioner in having to launch this application in a
matter whereby if the first respondent's legal practitioner had
been honest and acting in good faith she ought to have consented to
the rescission of the default judgment.
Whilst
mindful of the fact that costs de
bonis propriis
should not be lightly awarded I am of the view that such is deserved
in this case. It is only fair that that legal practitioner, Ms Ruth
Mukozho, be ordered to pay the costs for this application.
I
believe that should be adequate censure.
I
did not find much insistence on the legal practitioner reimbursing
her client for the default judgment under HC2469/ and so such will
not be ordered.
I
am also not inclined to order that she reports herself to the Law
Society. This judgement should suffice for a closer monitoring of her
conduct.
Accordingly
the application is hereby granted as follows:-
1.
The default judgment obtained by 1st
respondent under HC2469/13 on the 10th
July 2013 be and is hereby set aside.
2.
The costs of this application shall be paid by the 1st
respondent's legal practitioner, Ruth Mukozho de
bonis propriis
on the legal practitioner client scale.
Messrs
Mawere & Sibanda,
applicant's legal practitioners
Messrs
Sinyoro & Partners,
1st
respondent's legal practitioners
