Andrew Bowen v Takta Investment (Private) Limited and Gerald Saidi

The applicant, Andrew Bowen, sought rescission of an eviction order granted on 31 July 2024 under Case No. HCH 2903/24. The applicant claimed he was contracted by Atticus (Private) Limited as an independent contractor to develop Stand 2130 Marlborough Township, measuring 109.6556 hectares. He alleged that Atticus was the lawful owner based on Deed of Transfer No. 1244/2015. The applicant claimed the eviction application was served on his foreman, who had the papers taken by army personnel, and that he only became aware of the proceedings on 31 July 2024 after judgment had been granted. The first respondent, Takta Investment (Private) Limited, disputed this and provided evidence that the title deed relied upon by Atticus was a forgery, not registered with the Registrar of Deeds. The purported conveyancer denied signing the document, and the alleged seller denied ever transferring the property. The Registrar of Deeds confirmed the only authentic title deed was in the name of Takta Investment (Private) Limited.

• Whether the applicant was in wilful default when the original eviction order was granted
• Whether the court order in Case No. HCH 2903/24 was erroneously sought and granted
• Whether the applicant demonstrated a bona fide defence on the merits
• Whether the applicant had reasonable prospects of success on the merits if rescission were granted

1. The application for rescission of judgment under Case No. HCH 2903/24 is dismissed. 2. The applicant shall pay the first respondent's costs on a legal practitioner and client scale.

For rescission of a default judgment to be granted under Rule 29(1)(a), an applicant must demonstrate: (1) that the default was not wilful or due to gross negligence; (2) a bona fide defence on the merits; and (3) a reasonable explanation for the default. These factors must be considered both individually and in conjunction with the application as a whole. An unexplained delay in seeking rescission after becoming aware of a judgment is inconsistent with the conduct of a diligent litigant and points to wilful default. A party cannot claim lawful occupation of property based on rights purportedly derived from a forged and invalid title deed. One cannot transfer rights one does not have (nemo dat quod non habet). Without proof of a clear or prima facie right, no protective relief or rescission can be granted to reopen a case. An application for rescission that is based on fraudulent documentation and has no prospects of success constitutes an abuse of court process warranting dismissal with costs on the higher scale.

The court observed that the applicant appeared to be part of a fraudulent scheme designed to unlawfully dispossess the first respondent of its property, noting that criminal proceedings had been instituted against the applicant for trespassing. The court commented that even if the alleged contract with Atticus (Pvt) Ltd existed, it would confer no rights as the company had no lawful title to transfer. The court emphasized that supporting affidavits from the applicant's foreman and father were vague and lacked critical details, undermining their credibility. The judgment also noted that the Certificate of No Present Interest and letter from the Office of the President and Cabinet relied upon by the applicant could not override the fundamental requirement of lawful title registered with the Registrar of Deeds.

This case reinforces important principles in Zimbabwean civil procedure regarding rescission of default judgments under Rule 29(1)(a) of the High Court Rules, 2021. It demonstrates the strict requirements for rescission applications and the court's unwillingness to grant relief where an applicant's case is based on fraudulent documentation. The judgment also illustrates the importance of title verification in property disputes and confirms that rights cannot be derived from forged title deeds. The case serves as a warning against abuse of court process through applications designed merely to delay enforcement of lawful judgments. The award of costs on a legal practitioner and client scale (higher scale) reflects the court's view that the application was without merit and intended to frustrate legitimate property rights.