The appellant had been barred in the court a quo (lower court) for failure to file his heads of argument. Despite being barred, the court a quo proceeded to consider the merits of the matter and gave reasons for its decision. The appellant then lodged an appeal to the Supreme Court against this judgment. At the Supreme Court hearing, counsel for the first respondent raised a point in limine (preliminary objection) arguing that the appellant had no right of audience before the Supreme Court because the judgment a quo was in fact a default judgment, and the proper remedy should have been to seek rescission in the lower court rather than appealing.
The appeal was struck off the roll. Each party was ordered to bear its own costs.
Where a party has been barred in the lower court for failure to comply with procedural requirements (such as filing heads of argument), any judgment subsequently given is a default judgment. The fact that the lower court gives reasons and considers the merits of the matter does not convert a default judgment into a judgment on the merits. The proper remedy for a party aggrieved by a default judgment is to seek rescission of that judgment in the lower court, not to pursue an appeal to a higher court. An appeal against a default judgment is not properly before the appellate court.
Although a point in limine regarding the procedural propriety of an appeal can be raised at any time as a point of law, considerations of fairness may warrant a costs order where each party bears its own costs if the point is raised for the first time at the hearing without prior notice to the opposing party. This recognizes that while the legal point may be correct, the lack of notice may have caused the other party to incur unnecessary expenses in preparing for a hearing that could not properly proceed.
This case reinforces important principles of civil procedure in Zimbabwean law regarding default judgments and the proper remedies available to litigants. It clarifies that when a party is barred for non-compliance with procedural requirements (such as filing heads of argument), any subsequent judgment is a default judgment regardless of whether the court proceeds to give reasons on the merits. The case emphasizes that the proper remedy for a default judgment is rescission in the lower court, not an appeal. This prevents parties from circumventing procedural requirements by appealing default judgments directly to higher courts. The case also demonstrates the court's discretion in costs orders where procedural points are raised without prior notice, balancing the correctness of the legal point against fairness to the opposing party.