Rodwell Chitiyo N.O. v Emmanuel Mandipa Chiguba and David Kadzere and Doreen Kadzere

The applicant was appointed Executor Dative of the estate of the late Edmore Tererai Chitiyo. The deceased had purchased immovable property described as 182 Midlands Township 2 of Upper Waterfalls Estate from the 2nd and 3rd respondents through an agreement of sale dated 24 March 2004, which acknowledged full payment of the purchase price. The 2nd and 3rd respondents subsequently sold the same stand to the 1st respondent (a double sale). The 1st respondent acquired title and then obtained a default judgment for eviction against the 2nd and 3rd respondents under case number HC 11049/16 dated 22 March 2017. However, the 2nd and 3rd respondents were not in occupation—the applicant and two dependents of the estate were occupying the stand. The 1st respondent was aware of the applicant's claim to the property as far back as 13 September 2016 when he was served with a chamber application, but failed to cite the applicant in the eviction proceedings. The applicant obtained a stay of execution and then sought rescission of the default judgment.

• Whether the default judgment for eviction was erroneously sought and granted in the absence of a party with a substantial interest in the matter
• Whether rescission of judgment under Rule 449(1)(a) of the High Court Rules should be granted
• Whether the applicant's right to be heard in terms of the audi alteram partem rule was violated
• Whether the 1st respondent's failure to disclose the applicant's occupation and claim of ownership constituted a material non-disclosure

1. The default judgment granted against the applicant in favour of the 1st respondent in case HC 11049/16 was rescinded. 2. The applicant was joined as the 3rd defendant in that case and ordered to file his plea within seven days of receipt of the order. 3. The 1st respondent was ordered to pay the costs of suit.

A default judgment will be rescinded under Rule 449(1)(a) of the High Court Rules where it was erroneously sought and granted in the absence of a party who had a substantial interest in the matter. To succeed in such an application, the applicant need not demonstrate a bona fide defence but must only establish that the order was erroneously sought and granted in their absence. Where a party is aware that another person claims ownership of property and is in occupation thereof, that person must be cited in eviction proceedings, failing which any judgment obtained will be liable to rescission. The right to be heard, derived from the audi alteram partem rule and the rules of natural justice, requires that a person be given reasonable notice to make representations where another takes action which adversely affects their interests or rights.

The court observed that the 1st respondent should not have opposed the application, particularly in light of the previous findings in Chitiyo NO v Chiguba & 3 Ors HH 292-17. The court noted that the 1st respondent was clearly not an innocent purchaser, as he admitted being aware of the applicant's claim to the property. The court also commented that there was a failure by the 1st respondent to appreciate the import of the rescission application, which challenged the validity of his title based on prima facie grounds rather than merely accepting title as conclusive. The court emphasized that this was a clear case of double sale.

This case reinforces the principle that courts will not allow default judgments to stand where they were obtained without notice to parties with substantial interests in the matter. It emphasizes the importance of full disclosure to the court, particularly where the applicant is aware of competing claims to property. The judgment underscores that possession of title does not immunize a party from procedural requirements and natural justice considerations. It demonstrates the court's commitment to protecting the audi alteram partem rule and ensuring that parties with legitimate interests are afforded the opportunity to be heard before orders adversely affecting their rights are granted.