Misheck Chipembe and 43 Others v Ushewokunze Housing Cooperative Society Limited and 2 Others

The dispute originated from settlements on Saturday Retreat Farm, land allocated by the Government of Zimbabwe. The parties are members of different housing cooperatives fighting for control of the land. The appellants are members of Chevhu Housing Cooperative, while the first and second respondents are Ushewokunze Housing Cooperative Society Limited and Ropafadzo Zavea Housing Cooperative Society respectively. The third respondent is Noah Chirara, sued as chairperson of Chevhu Housing Cooperative Society. On 13 December 2023, the first and second respondents issued summons against Chirara and "all those claiming occupation through him" for eviction, claiming they were illegal invaders. The respondents claimed the first respondent was allocated the farm by Government and subsequently ceded 50 hectares to the second respondent, and that Chirara and others unlawfully invaded the land in 2000 and erected illegal structures. When Chirara failed to enter appearance to defend, default judgment was entered against him and all those claiming occupation through him. The messenger of court issued warrants of ejectment against the 44 appellants. The appellants then filed an application for rescission of the default judgment under Order 30 r4(1) of the Magistrates Court (Civil) Rules, 2019, arguing they were not cited or served with the summons.

• Whether the matter was res judicata based on a previous High Court decision in HC3273/20
• Whether the appellants had dirty hands due to alleged violation of the Urban Councils Act and Model Building By-Laws and defiance of a previous court order
• Whether the court a quo erred in failing to properly determine preliminary points before proceeding to the merits
• Whether the appellants demonstrated good cause for rescission of the default judgment
• Whether the appellants had bona fide prospects of success on the merits
• Whether the procedural approach adopted by the court a quo constituted a gross irregularity

1. The appeal is upheld with costs. 2. The proceedings of the court a quo are set aside. 3. The application for rescission of judgment is remitted to the court a quo to be determined by a different Magistrate.

1. A court dealing with a preliminary point must determine and rule on it before proceeding to determine the matter on its merits. Failure to do so constitutes a gross procedural irregularity that is fatal to the proceedings. 2. Once a court upholds a preliminary point of res judicata, it has the effect of disposing of the matter and the court has no authority to proceed with determining the matter on its merits. Doing so constitutes a fundamental irregularity going to the root of the proceedings. 3. Where a court allows preliminary points but fails to make clear rulings on them and inexplicably proceeds to the merits, this constitutes a gross irregularity warranting setting aside of the decision. 4. The High Court has power of review under sections 26-28 of the High Court Act over matters coming before it on appeal, including power to identify and correct gross irregularities even where not specifically raised by the parties on appeal. 5. Gross procedural irregularities that go to the root of proceedings and compromise the integrity of the judicial process warrant setting aside the decision and remitting the matter for hearing de novo before a different judicial officer.

The court made several observations about proper procedure: (1) A preliminary point, if properly and successfully raised, is capable of resolving a matter without need to go into its merits. (2) Res judicata is based on public interest that there must be an end to litigation and that authority vested in judicial decisions be given effect to, even if erroneous. (3) A litigant with dirty hands has no right of audience and cannot be heard by a court making such a finding. (4) The court expressed confusion and perplexity regarding why the court a quo adopted the approach it did, noting there is "considerable confusion surrounding the court's choice to address the merits of the application despite findings of res judicata as this contradicts established legal principles." The court also noted that the appellants had abandoned certain grounds of appeal (grounds 3 and 4c) and observed that most of the grounds of appeal did not allege any misdirection and were not clear and concise, though grounds 3(b), 4(a) and 5 were found sufficiently clear.

This case is significant for establishing important principles regarding procedural regularity in Zimbabwean civil procedure, particularly: (1) the binding nature of preliminary points and the requirement that they must be determined and ruled upon before proceeding to the merits; (2) the proper application of res judicata - once upheld, it disposes of the matter without need to consider merits; (3) the impropriety of proceeding to merits after upholding res judicata; (4) the High Court's inherent review power under sections 26-28 of the High Court Act to intervene where gross irregularities occur, even on matters not specifically raised on appeal; and (5) that fundamental procedural irregularities that go to the root of proceedings constitute grounds for setting aside decisions and remitting matters for hearing de novo. The judgment reinforces the importance of proper procedural compliance in the administration of justice.