Tomu Nyandoro v Estate Late Paulino Oliveria Martins and Others

The applicant, a farmer, claimed to have been friends with the late Paulino Oliveria Martins who died on 2 September 2007. Prior to his death, the applicant alleged he lent Martins $5 billion Zimbabwean dollars which he had reserved to buy an international truck horse. In exchange, Martins was to import a similar truck for the applicant as repayment. When Martins died, he had not yet delivered the truck but had allegedly begun the importation process. The applicant saw a notice of death in the press and filed a claim with the executor for a Nissan Diesel UD290 WF Horse truck. He attached a pro-forma invoice in his name and address as evidence. The executor convened a special meeting on 19 December 2007. Initially, on 8 January 2008, Mr Matore of the Master's office accepted the claim, but on 23 January 2008, the Master of the High Court nullified this decision as unprocedural. On 25 April 2008 and 23 July 2008, the executor rejected the applicant's claim on grounds of insufficient evidence and being vague and unsubstantiated. The applicant then filed this application seeking an order that the truck be excluded from the estate and released to him.

• Whether the Nissan Diesel UD290 WF Horse truck formed part of the estate of the late Paulino Oliveria Martins
• Whether the applicant had established sufficient claim to the truck based on the alleged loan agreement and importation arrangement
• Whether the respondents' failure to file heads of arguments within the prescribed time warranted a default judgment
• The procedural requirements and consequences of being barred under Rule 238 of the High Court Rules

The court ordered that: (1) The first and second respondents be directed not to include the Nissan Diesel UD 290 WF Horse into the estate of the late Paulino Oliveria Martins DR 1308/07; (2) The first and third respondents be directed to release the Nissan Diesel UD WF 290 Horse and all relevant papers to the applicant to enable him to register the vehicle in his name within seven days; (3) Upon the first and third respondents' failure, the Deputy Sheriff be authorized to take the vehicle and sign all relevant papers to enable registration and handover to the applicant; (4) The first and third respondents shall bear the costs of suit.

Where a party fails to file heads of arguments within the prescribed time under Rule 238 of the High Court Rules and further fails to apply for the upliftment of the resulting bar, that party is precluded from being heard on the merits and a default judgment may be granted against them. The essence of a judgment granted after a party fails to appear is the 'default' of that party - their failure to do what they ought to have done. A party barred from proceedings due to non-compliance with procedural rules must apply for upliftment of the bar before they can be heard on the merits.

The court noted that it was of the view that no case had been made to consider the application on the merits, despite the applicant's counsel urging the court to do so. The court also observed that counsel for the respondents indicated that the instructing legal practitioners had not been forthcoming with reasons for the delay in filing heads of arguments, hence no application for upliftment of the bar could be made. The court characterized any judgment in these circumstances as being in the same vein as a judgment granted in the absence of the other party.

This case illustrates the strict application of procedural rules in Zimbabwean civil litigation, particularly Rule 238 of the High Court Rules regarding the filing of heads of arguments. It demonstrates that failure to comply with procedural requirements, including failure to apply for upliftment of a bar, can result in a party being unable to present their case on the merits and suffering a default judgment. The case also touches on the administration of deceased estates and the process of validating claims against an estate, including the role of the Master of the High Court in supervising estate administration.