Construction Resources Africa (Private) Limited v Central African Building Construction Company (Private) Limited

On 29 November 2004, the respondent concluded two agreements with the applicant: one for the sale of plant equipment and goodwill for US$219,000, and another for the sale of three immovable properties for US$296,000, US$97,000, and US$88,000 respectively. A portion of the purchase price was to be paid in Zimbabwe Dollars converted from US Dollars at the auction rate. On 7 November 2006, the respondent cancelled the agreement for the sale of the three immovable properties and issued summons seeking rei vindicatio and eviction of the applicant from the properties. The applicant defended on the basis that the properties were occupied by current shareholders and directors of the respondent company and that the respondent had been fully paid. The High Court found for the respondent, holding that the applicant had not paid in full within agreed timeframes, the shareholding transfer was invalid, and the cancellation notice was valid. The applicant appealed and filed an application to adduce further evidence on appeal, consisting of affidavit evidence and the record of criminal proceedings against the applicant's Managing Director (Mr. Musukuma) on a fraud charge, where Mr. Vieira (respondent's director) and Mr. Paul (respondent's lawyer) had testified.

• Whether the applicant met the test for adducing further evidence on appeal
• Whether the evidence sought to be adduced was obtainable with reasonable diligence at the trial stage
• Whether the evidence would be materially relevant to the outcome of the trial
• Whether the evidence was prima facie credible

The application to adduce further evidence on appeal was dismissed with costs. The main appeal (Case No. SC 88/12) was postponed by consent to allow the applicant until 25 March 2015 to file any constitutional matter arising from the refusal. The applicant was ordered to pay costs occasioned by the postponement of the appeal.

The binding legal principle established is that an applicant seeking to adduce further evidence on appeal must satisfy three cumulative requirements: (1) the evidence must have been unobtainable with due diligence or unavailable for adduction at the trial stage; (2) the evidence should be probably influential or materially relevant to the outcome of the trial; and (3) the evidence must be apparently credible or prima facie likely to be true. Where evidence was available at trial or during the intervening period before judgment, and the applicant fails to demonstrate due diligence in seeking to adduce it at the appropriate time, the application will fail at the first hurdle regardless of the relevance or credibility of the evidence.

The Court made obiter observations regarding Mr. Paul's conduct in filing a notice of opposition despite a High Court order of 30 June 2010 prohibiting him from continuing to act for the respondent in the matter. While acknowledging that Mr. Paul's involvement was questionable and that he should not have filed the notice of opposition, the Court took the view that this did not affect the determination of the application on its merits and proceeded to determine the matter accordingly. The Court also noted that the applicant subsequently filed a constitutional appeal (Case No. CCZ 21/15) on 25 March 2015 against the Supreme Court's judgment, seeking reversal of the decision and a substituted order granting the application to adduce further evidence.

This case reinforces the strict application of the test for adducing further evidence on appeal in Zimbabwean law. It emphasizes that litigants must exercise due diligence in obtaining and presenting evidence at trial, and cannot belatedly seek to introduce evidence on appeal that was available during the trial process. The case confirms the continuing application of the principles established in Ladd v Marshall and adopted in Zimbabwean jurisprudence, requiring that evidence be unobtainable with reasonable diligence at trial, materially relevant, and apparently credible. It demonstrates that appellate courts will not permit litigants to use applications to adduce further evidence as a means of remedying lack of diligence at trial or as a delaying tactic.