Godwills Zhovha v Angela Chirombo

### Preamble
1
HH 671-25
HCH 2137/25
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GODWILLS ZHOVHA

and

ANGELA CHIROMBO

HIGH COURT OF ZIMBABWE

ZHOU & CHIKOWERO JJ

HARARE 9 and 27 October 2025

Civil Appeal

A Mafukidze, for the appellant

No appearance for the respondent

Chikowero J

[1]	This is an appeal against the judgment of the Magistrates Court dismissing an appeal against a default judgment granted by the Community Court presided over by Chief Chinamhora and his assessors.

BACKGROUND

[2]	On 20 January 2024 and at Chinamhora the appellant and respondent entered into an agreement in terms whereof the former sold to the latter the right to occupy and use certain 5000 square meters of communal land situate in Nyakudya village under Chief Chinamhora.

[3]	In terms of the agreement the respondent immediately paid to the appellant the sum of US$ 9 000. In acknowledging receipt of this payment, the appellant recorded that he would:

“ensure that Angela Chirombo is entered into the village register and ensure that her activities are done without interference.”

[4]	The respondent took occupation of the piece of land whereupon she erected infrastructure to run a private school. She began operating the business of a private school thereon.

[5]	When the parties contracted on 20 January 2024 the only improvements that the appellant had managed to effect on the piece of land were a cottage and a well.

[6]	Following the massive improvements effected on the piece of land, alluded to at para 4 of this judgment, and before the respondent paid the outstanding balance of US$ 1000 to the appellant, the latter brewed a shocker.

[7]	He endeavored to resile from the contract.

[8]	The respondent would have none of it.

[9]	She instituted proceedings against the appellant out of the community court sitting at Chinamhora.

[10]	The appellant, despite being served with summons to appear at the Chief’s Court for the hearing of the matter, was in default.

[11]	On 11 February 2024, the Community Court granted a default judgment against the appellant. That judgment reads:

“The piece of land belongs to Angela Chirombo. Angela Chirombo take possession of your land and use it as was intended from the beginning. Goodwill Zhova has no right to occupy that piece of land because it belongs to Angela Chirombo having being the one who purchased it.”

[12]	Dissatisfied with the default judgment, the appellant took it on appeal before the Magistrates Court sitting at Chinamhora. He raised five grounds of appeal the second one of which reads as follows:

“2. The Honourable Chief Chinamhora misdirected himself in finding that the Appellant was in default in circumstances where he had given a valid excuse for his unavailability for the hearing as he was ill.”

In raising this ground of appeal the appellant was conceding that the community court presided over by Chief Chinamhora had granted a default judgment.

[13]	Indeed, even in submissions before us Mr Mafukidze, correctly in our view, pointed out that the Chief’s Court had granted default judgment.

[14]	The Magistrates Court sitting at Chinamhora heard the appeal. On 14 April 2025 it rendered judgment. The operative part of the judgment reads as follows:

“It is ordered that:

Appeal dismissed with costs. Decision of the Community Court sitting at Chinamhora is upheld.”

[15]	The appellant has appealed against the whole judgment of the Magistrates Court.

[16]	He has relied on four grounds of appeal. It is not necessary set out or to determine any of those grounds. For our purposes nothing turns on them.

[17]	But we will reproduce the relief contained in the Notice of Appeal. It reads:

“1. The appeal against the judgment of the Magistrates Court sitting at Chinamhora handed down by the Honourable Magistrate Esquire A. Chinembiri on the 14th of April 2025 under case number LCA 4/2025 be and is hereby allowed.

2. The Court a quo’s decision be set aside, and in its place, it be substituted with the following:

‘i. The plaintiff’s claim be and is hereby dismissed.

ii. The judgment of Chinamhora Community Court which was handed down by Honourable Chief Chinamhora on the 11th of February, 2024 be and is hereby set aside.

iii. The Plaintiff shall pay costs of suit.”

3. The respondent be ordered to pay costs of suit.”

[18]	A default judgment cannot be appealed against. See Sibanda and Ors v Nkayi Rural District Council 1999 (1) ZLR 32(S), Zvinavashe v Ndlovu SC 40/06, Ramvaili Trust’s Trustees v UDC Limited 1998(1) ZLR 110,(S) Q’uoxing Gong v Mayor Logistics (Pvt) Ltd and Anr SC 2/17, Read v Gardner and Anor SC 70/19, Parkham  Enterprises (Private) Limited and Anor v Adhesive Products Manufactures (Private) Limited and Anor SC 100/21. This position has been reiterated in the relatively recent case of OK Zimbabwe Limited v Tazvivinga SC 134/21 where the Court said at para 10:

“According to our law, a party cannot appeal against a default judgment. The correct procedure would be for that party to make an application for the judgment to be rescinded first. See Chintengo v Tredcor and Anor SC 67/19.”

[19]	The appeal before us is against a judgment of the Magistrate Court dismissing an appeal against a default judgment granted by the Community Court sitting at Chinamhora. The Magistrates court should have struck off that appeal from the roll because it was improperly before it. No appeal lies against a default Judgement. That Court determined the appeal as if it was properly before it, and dismissed the appeal. The judgment of the Magistrates Court has now been appealed to this court. The appellant is appealing against a nullity. Nothing turns on a nullity. The purported appeal, drawing its life from nullity, is also a nullity. It is improperly before us and must therefore be struck off roll.

[20]	Since there was no appearance for the respondent at the hearing of the appeal, there will be no order as to costs.

DISPOSITION

IT IS ORDERED THAT

The matter be and is struck off the roll

There is no order as to costs.

Chikowero J ………………………………

Zhou J: I agree……………………………..

Kwenda and Chagwiza Attorneys, appellant’s legal practitioners

Magoge Law Chambers, respondent’s legal practitioners