Eliud Spencer Nhari v Commercial Bank of Zimbabwe

The Bank sued Mr Nhari in November 1995 for two amounts: $793,110.98 and $477,795.27, with interest and costs. In further particulars, these amounts were reduced by reference to the in duplum rule to $509,109.86 and $400,000.00 respectively. Mr Nhari was barred and default judgment was given against him on 17 July 1998. He then applied for rescission of judgment, which was dismissed with costs. Mr Nhari had written a letter in his own handwriting headed "Overdraft facilities. Personal A/c No. 0/037412" to the Bank, enclosing a guarantee by a company. Despite this, he alleged that some of the money was due by the company rather than by him personally.

• Whether the rescission of default judgment should be granted based on the appellant's stated reasons for delay and merits
• Whether the defences raised, including the allegation that debt was owed by a company rather than personally, had any merit
• Whether the in duplum rule was properly applied by the Bank in reducing its claim
• Whether the appeal was brought for the proper purpose of correcting a legal error or merely to delay execution

The appeal was dismissed with costs.

An appeal is an improper tactic when its only purpose is to delay the inevitable payment of a legitimate debt. When raising a defence based on the in duplum rule, a debtor must point to specific miscalculations rather than making vague allegations, particularly where the creditor has already amended its claim to comply with the rule and provided detailed particulars. Rescission of default judgment will not be granted where the reasons for delay and the defences on the merits are spurious and lack any reasonable foundation.

The Court observed that in difficult economic times there are inevitably more cases in which debtors are unable to pay their debts. McNally JA referenced his recent remarks in Herringswell Investments (Pvt) Ltd & Anor v Parity Capital Ventures Ltd S-100-2000 regarding improper use of appeals as delaying tactics. The Court also noted that it was not asked to award costs in the higher scale, with implicit reference to the remarks of Ebrahim JA in Gambiza v Edgars Stores Ltd & Anor S-32-99.

This case reinforces the principle that appeals should not be used as delaying tactics when debtors are unable to pay legitimate debts. It demonstrates the court's willingness to summarily dismiss appeals and rescission applications based on spurious grounds, particularly in debt recovery matters. The case also clarifies that when raising defences based on the in duplum rule or other technical grounds, debtors must provide specific and particularised challenges rather than vague allegations. It serves as a warning against abuse of process in debt recovery proceedings.