Al Shams Global BVI Limited v Equity Properties (Private) Limited

The applicant, Al Shams Global BVI Limited, is a peregrinus (foreign entity) domiciled in the British Virgin Islands but conducting business in Zimbabwe. The respondent, Equity Properties (Private) Limited, had obtained a credit facility from Interfin Bank Limited for USD 1,600,000 and registered a first mortgage bond over its property (Lot 3 Bannockburn, deed of transfer 9068/08) as security. The respondent subsequently satisfied its debt to Interfin Bank by paying USD 3,810,000 worth of treasury bills on 23 February 2016. Before the debt was satisfied, Interfin Bank had purportedly sold Bankers Acceptances to the applicant and handed over the respondent's title deeds on the understanding they would be returned upon settlement. Despite settlement of all amounts due to Interfin Bank, the applicant refused to release the title deeds to the respondent. The respondent then filed a chamber application under HC 3254/17 on 11 April 2017 for attachment to found or confirm jurisdiction and for substituted service against the applicant. A default judgment was granted on 24 July 2017. The applicant's director learned of the judgment through a Newsday internet publication on 3 November 2017. The applicant then sought rescission of the default judgment, arguing it was not in wilful default and had a bona fide defense.

• Whether the applicant established good and sufficient cause for rescission of the default judgment under Order 9 Rule 63 of the High Court Rules 1971
• Whether the respondent was entitled to obtain a chamber application for attachment to found or confirm jurisdiction under Order 32 Rule 242 without notice to the applicant
• Whether the applicant demonstrated a bona fide intention in bringing the rescission application
• Whether the attachment of the applicant's property was necessary to found jurisdiction over a peregrinus

The application for rescission of judgment was dismissed with costs.

An application for rescission of a default judgment obtained through a chamber application under Order 32 Rule 242 for attachment to found or confirm jurisdiction over a peregrinus is not appropriately brought under Order 9 Rule 63 of the High Court Rules. Applications for attachment to found jurisdiction are properly brought without notice to prevent frustration of the application's purpose (such as removal of property from the jurisdiction). A rescission application must be brought in good faith and demonstrate a bona fide intention. Where an applicant admits being a peregrinus, holding property within the jurisdiction, and having multiple pending cases with the respondent, the applicant cannot successfully seek to set aside the very judgment that founds the court's jurisdiction, as this would render subsequent proceedings nugatory and require the respondent to re-establish jurisdiction.

The court observed that if the rescission were granted in favor of the applicant, the applicant would effectively be removed from the jurisdiction of the court, meaning the respondent would not be able to constitute any lawful proceedings against the applicant without first approaching the court again to found or confirm jurisdiction. The court also noted that the rationale for bringing applications under Order 32 Rule 242 without affording a respondent an opportunity to defend is that such a respondent may, if alerted, decide to frustrate the very purpose for which the application has been filed, such as by removing property from the jurisdiction.

This case is significant in Zimbabwean civil procedure law as it clarifies the principles governing rescission of default judgments obtained through chamber applications for attachment to found jurisdiction over foreign entities (peregrini). It confirms that applications under Order 32 Rule 242 for attachment to found jurisdiction are properly brought without notice to the respondent, and that such judgments are not readily set aside through ordinary rescission applications under Order 9 Rule 63. The case emphasizes the importance of demonstrating bona fide intentions in rescission applications and reinforces the court's power to found jurisdiction over foreign entities through attachment of property to ensure judgments are not rendered nugatory. It serves as authority that a peregrinus cannot simply seek to set aside a jurisdictional order after admitting its foreign status and the existence of the attached property within the jurisdiction.