Robert Njanji v Kenn Bongani Sambo and Others

The applicant obtained a loan from the 2nd respondent (Peoples Own Savings Bank) secured by a mortgage bond over his immovable property (stand 473 Marvel Township, Bulawayo). After defaulting on the loan, the 2nd respondent obtained judgment declaring the property executable. The 3rd respondent (Additional Sheriff) conducted a judicial sale where the 1st respondent became the highest bidder. The applicant's request to set aside the sale under rule 359(1) was dismissed by the Sheriff who confirmed the sale. The applicant challenged this under HC 249/16, which was set down on the unopposed roll (excluding the 2nd respondent who had opposed). BERE J granted an order setting aside the sale. However, the 2nd respondent obtained dismissal of HC 249/16 for want of prosecution under HC 1095/16. The property was subsequently transferred to the 1st respondent. The applicant's rule 449 application to rescind MAKONESE J's order failed, and the 2nd respondent successfully rescinded BERE J's order, with MOYO J finding the applicant had acted with mala fides and obtained the order clandestinely. DUBE-BANDA J similarly found the applicant obtained the order through deception. The applicant then brought two applications (HC 1207/20 and HC 1350/20) seeking declaratory orders to set aside the sale and transfer, which were consolidated.

• Whether the applications constituted an improper attempt to disguise a review application as a section 14 declaratory application
• Whether there was lis pendens given the consolidation of two applications raising similar issues
• Whether the applicant materially failed to disclose relevant facts regarding the earlier fraudulently obtained order
• Whether there were material disputes of fact that could not be resolved on the papers
• Whether the declaratory application procedure was the appropriate procedural vehicle for challenging a sale in execution

1. The points in limine (except lis pendens) were upheld. 2. The applications for declaratory relief in HC 1207/20 and HC 1350/20 were dismissed. 3. The applicant was ordered to pay costs on a legal practitioner and client scale.

A litigant cannot obtain relief from a court by anchoring an application on an order that was obtained through deception, irregularity or clandestinely, without making full disclosure of those circumstances. Material non-disclosure of such facts constitutes a basis for dismissal. A section 14 application for a declaratory order cannot be used as an alternative or substitute for the proper procedural remedies for challenging a sale in execution, namely rule 359(8) or review proceedings under section 27 of the High Court Act. Where a litigant brings an application knowing that material disputes of fact will arise regarding core allegations, and those disputes cannot be resolved on the papers, the application should be dismissed where the applicant ought to have foreseen such disputes and chosen the appropriate procedure (such as action proceedings). The principle of finality in litigation requires that litigants pursue their remedies once and properly, not through repeated applications using different procedural vehicles.

The court made several critical observations about the applicant's conduct: KABASA J noted that litigation is not about ingenuity but about prosecuting matters procedurally and once and for all, emphasizing the principle of finality. The court observed that the applicant got entangled by his own choices and when one avenue was closed, attempted to open another by filing applications seeking 'a second bite of the cherry but using unorthodox means.' The court commented that the applicant's citation of the 5th respondent (Zimbabwe Anti-Corruption Commission) was misplaced, noting it is not for the court to order that body to work with the applicant to initiate prosecution or to lend weight to unsubstantiated corruption allegations. The judge criticized the applications as 'inelegantly couched and long-winded.' The court's reference to the applicant's conduct as 'deserving of censure' and the history of the matter justified the punitive costs order.

This case is significant in Zimbabwean civil procedure for several reasons: (1) It reinforces the principle that litigants must make full and frank disclosure to the court and cannot anchor applications on orders obtained through deception or irregularity; (2) It clarifies that section 14 declaratory applications cannot be used to circumvent procedural requirements and time limits for review applications; (3) It demonstrates the proper procedure for challenging sales in execution (rule 359 or review under section 27); (4) It illustrates the court's willingness to impose punitive costs where litigants engage in abusive litigation tactics and repeated unsuccessful applications; (5) It affirms the principle of finality in litigation and that courts will not permit litigants to have multiple bites at the cherry through different procedural devices. The case serves as a warning against forum shopping and procedural manipulation.