Prince Tichakunda Mariga (In his capacity as the Executor Dative of the estate of the late Regis Mariga) v NMB Bank Ltd and Others

On 10 August 2010, NMB Bank (1st respondent) loaned US$15,000 to Toover Enterprises (Pvt) Ltd. Brian Simbarashe Chipanera, Innocent Sibonginkosi Ncube, Regis Mariga and Brighton Chipanera bound themselves as co-principal debtors. Stand number 506 Emganwini Township was hypothecated as security, registered in the name of Regis Mariga. When Toover Enterprises failed to service the loan, summons were issued under case numbers HC 2163/11 and HC 3735/11. Default judgment was granted against the debtors for US$14,271.10 with interest, and the property was declared specially executable. However, Regis Mariga had actually died on 10 January 2000, approximately ten years before the loan agreement was concluded. The applicant was appointed executor dative of Regis Mariga's estate on 1 February 2011. The signature on the suretyship form purporting to be that of Regis Mariga was forged, as he had been deceased for years before the agreement. The property belonged to the estate of the late Regis Mariga registered under DRB 382/00.

• Whether execution of a default judgment obtained through a forged signature of a deceased person should be stayed
• Whether the court should grant interim relief to prevent execution against property of a deceased estate where the underlying suretyship was fraudulent
• Whether a provisional order should be granted to restore possession of attached property and remove caveats placed on immovable property based on a fraudulent default judgment

The provisional order was granted in terms of the amended draft, which included: (1) staying execution of the judgment granted under case number HC 3735/11 pending determination of the application for rescission of default judgment; (2) interim relief preventing the Deputy Sheriff from proceeding with execution and auction; (3) restoration of possession of the applicant's property that had been attached; and (4) removal of the caveat placed on the immovable property stand number 506 Emganwini Township.

Where a default judgment has been obtained against a deceased person through forgery of their signature on a suretyship agreement, and the person was demonstrably deceased at the time the agreement was purportedly concluded, the court will grant a provisional order staying execution of that judgment pending an application for rescission. A party who has obtained judgment through a forged instrument cannot resist an application to stay execution on technical grounds, even where that party was itself a victim of the forgery. The estate of a deceased person is entitled to protection from execution based on fraudulent documents purporting to bind the deceased to obligations that could not legally have been incurred.

The court observed that the 1st respondent was a victim of the forgery, acknowledging the bank's position as an innocent party who had been defrauded. However, the court noted that despite being a victim, the respondent could not seriously expect to defeat the application on the basis of technicalities. This suggests judicial sympathy for the bank's position while maintaining that the interests of the deceased estate and the integrity of the legal process must take precedence over the bank's attempt to recover its losses through enforcement of a judgment based on fraudulent documentation.

This case demonstrates the Zimbabwean High Court's willingness to intervene and stay execution of judgments obtained through fraudulent means, particularly where a deceased person's signature has been forged. It illustrates the protection afforded to deceased estates against fraudulent claims and emphasizes that technical procedural defenses cannot be used to sustain judgments based on forgery. The case also highlights the importance of proper verification procedures by financial institutions when entering into loan agreements and accepting suretyships, as banks bear the risk of losses arising from forgeries even where they are victims of fraud.