Lewis Muridzo Chitengwa v Wilson Tatenda Manase

The High Court granted an order for summary judgment against the applicant in case number HC 6289/02, ordering him to vacate premises that the respondent had purchased, or be evicted. The applicant noted an appeal against that judgment. Subsequently, the applicant applied for leave to lead further evidence on appeal, claiming he had discovered that the Central African Building Society valued the house at $35,000,000.00 when they issued a mortgage bond to the respondent. The applicant alleged he wanted to argue that the purchase price of the house was too low. He claimed that when the matter was heard at the High Court, he was out of the country and was unable to lead that evidence.

• Whether the applicant complied with the requirements of Rule 39(4) of the Supreme Court Rules for leave to lead further evidence on appeal
• Whether the application met the procedural requirements for leading new evidence on appeal, including the filing of the evidence in affidavit form and an affidavit from a legal practitioner explaining why the evidence was not led at trial
• Whether there was sufficient prima facie likelihood of the truth of the evidence and material relevance to the outcome of the trial

The application for leave to lead further evidence on appeal was dismissed with costs.

An application for leave to lead further evidence on appeal under Rule 39(4) of the Supreme Court Rules requires strict compliance with all procedural requirements, including: (1) the evidence sought to be led must be filed in affidavit form; (2) there must be an affidavit from a legal practitioner explaining why the evidence was not led at trial; (3) a copy of the judgment appealed from must be provided; and (4) a statement indicating how the evidence affects the matters at issue must be provided. Mere allegations by an applicant of the existence of evidence, without filing the actual evidence in proper form, is insufficient. The court cannot assess the prima facie likelihood of truth or material relevance of evidence unless it is actually placed before the court. Failure to comply with these procedural requirements is fatal to an application to lead further evidence on appeal.

The Court noted that even if one accepted the applicant's affidavit in place of the legal practitioner's affidavit, the application would still fail because the actual evidence was not before the court. The Court also observed that there was no explanation as to why the evidence could not have been obtained from the Central African Building Society in proper affidavit form, nor any details about when the valuation was done or the methodology used to arrive at the valuation figure.

This case reinforces the strict procedural requirements for applications to lead further evidence on appeal in Zimbabwean courts. It emphasizes that Rule 39(4) of the Supreme Court Rules must be strictly complied with, and that mere allegations of the existence of evidence are insufficient. The case demonstrates that applicants must actually file the evidence in affidavit form and provide proper explanations through legal practitioners as to why such evidence was not led at trial. It serves as a reminder to litigants and practitioners that appellate courts will not entertain applications for new evidence that fail to meet mandatory procedural requirements, regardless of the potential merit of the underlying case.