The Right Investments (Private) Limited v Gilbert Muponda and Others

The applicant, The Right Investments (Private) Limited, sought to set aside a judgment granted on 14 September 2022 under case number HC 5385B/22. That judgment had set aside Deed of Transfer No. 558/21 in favour of Kunze Kwayedza Enterprises (Private) Limited. The applicant contended that the judgment was fraudulently obtained by the first and second respondents (Gilbert Muponda and Nyasha Watyoka), who falsely represented themselves as directors and authorized representatives of the applicant company. The applicant only became aware of the order on 26 October 2022 when the City of Harare informed lawful directors that the deed of transfer had been cancelled. Investigation revealed that the founding affidavit in HC 5385B/22 was deposed to by the second respondent based on a purported company resolution signed by the first respondent on 2 August 2022. The applicant averred that the first and second respondents ceased to have any legal or beneficial interest in the applicant following the liquidation of ENG Capital Investments (Private) Limited in 2004. Previous judgments in SC 130/21 and HH 820/20 had confirmed that the first and second respondents were no longer directors or shareholders of the applicant. Despite these rulings, the respondents continued to hold themselves out as directors and act in the company's name.

• Whether a court order obtained through fraud or misrepresentation is a nullity and may be rescinded
• Whether there existed material disputes of fact requiring referral to trial
• Whether the first and second respondents had authority to represent the applicant company in HC 5385B/22
• Whether the applicant was entitled to an interdict restraining the first and second respondents from holding themselves out as directors or shareholders

1. The judgment dated 14 September 2022 in case HC5385B/2022 was set aside as a nullity for fraud. 2. Any act done by the first and second respondents pursuant to that order was declared null and void. 3. The first and second respondents were interdicted and restrained from purporting to be directors, shareholders, or officers of the applicant. 4. The first and second respondents were ordered to pay costs of suit, jointly and severally on attorney and client scale. 5. As regards parties who consented or did not oppose, each party to pay its own costs.

A court order obtained through fraud or misrepresentation by persons without authority to represent a company is a nullity and may be rescinded at common law and under Rule 29(2) of the High Court Rules, 2021. Where previous court judgments have conclusively determined that certain persons are not directors or shareholders of a company, and official company registry documents confirm the lawful directors, any subsequent court application purportedly made on behalf of that company by the unauthorized persons using fraudulent resolutions is void ab initio. A dispute of fact raised in opposition to such an application will be dismissed where it is not genuine or bona fide, but rather constitutes a contrived denial contradicting established judicial findings and documentary evidence. The court will exercise its equitable jurisdiction to interdict persons from fraudulently holding themselves out as directors or officers of a company where the applicant demonstrates a clear right, actual or reasonably apprehended injury, and the absence of adequate alternative remedy.

The court observed that the first and second respondents' conduct in repeatedly misrepresenting themselves as directors despite clear judicial pronouncements to the contrary was not only fraudulent but amounted to a gross abuse of court process. The court emphasized that it will not exercise its equitable discretion in favour of one who approaches it with unclean hands or for purposes of delay or deceit. The court noted that the first and second respondents had placed before it nothing but bald assertions unsupported by documentary proof, whereas the applicant had produced official company registration documents confirming its lawful structure. The court remarked that the court will not permit its process to be used to perpetrate injustice.

This case reinforces important principles in Zimbabwean law regarding the rescission of fraudulently obtained court orders and the protection of corporate governance structures. It demonstrates that courts will not hesitate to set aside their own orders where they have been procured through fraud or misrepresentation by persons without authority. The judgment emphasizes that previous determinations by higher courts regarding company directorship are binding and conclusive, and parties cannot repeatedly relitigate settled issues through fraudulent means. The case also illustrates the application of the clean hands doctrine and the court's refusal to permit abuse of its processes. It provides guidance on when alleged disputes of fact will be dismissed as contrived or self-serving, particularly where they contradict findings in prior judicial decisions and official registry records.