Joel Muzhamba and Patrick Karitariita and Elizah Mhlanga and Philliphah Nyabuta and Douglas Mandaza v Joe Chimonyo and FBC Building Society

### Preamble
1
HH 675-25
HCH 2018/25
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JOEL MUZHAMBA

and

PATRICK KΑΡΙΤΑΡΙΤΑ

and

ELIZAH MHLANGA

and

PHILLIPAH NYABUTA

and

DOUGLAS MANDAZA

versus

JOE CHIMONYO

and

FBC BUILDING SOCIETY

HIGH COURT OF ZIMBABWE

MAWADZE DJP & WAMAMBO J

HARARE; 8 July 2025 and 28 October 2025

Civil Appeal

L T Muringani, for all the appellant.

B Mudiwa, for the 1st respondent.

No appearance for the 2nd respondent.

Introduction

WAMAMBO J:  This is an appeal against the decision of the Magistrates’ Court, Harare delivered on 31 March 2025, dismissing the appellants’ application for condonation of late filing of a rescission of judgment. The dismissal was on the basis that the application was fatally defective for non-joinder of a necessary party – namely, Zvimba East Veterans Investment Company, the corporate entity in whose favour the default judgment had been granted. The appellant, Joel Muzhamba, together with others, now appeals to this court against that outcome.

The background may be summarized as follows. A default judgment was entered under case HRE-CG 6479/24 in favour of Zvimba East Veterans Investment Company (Pvt) Ltd (“the company”) against FBC Building Society. Alleging that the default judgment was improperly obtained without the knowledge of the company’s other directors or stakeholders, the appellant and four others, all associated with the company, launched an application in the magistrates’ court seeking rescission of that judgment. Because that rescission application was out of time, the appellants first sought condonation for late filing. The magistrate a quo, however, upheld a preliminary point that the rescission application was incurably defective due to the non-joinder of the company itself, and on that basis refused condonation and dismissed the application. The appeal before this court is against that magistrate’s ruling.

The appellants’ notice of appeal contains six grounds of appeal, set out verbatim below:

“The court a quo grossly erred and misdirected itself and erred on a point of law by finding that there was a material non-joinder, when contrary to the court’s findings the evidence before the court was clear that Zvimba East Veterans Investment Company (Pvt) Ltd did not seek, obtain, possess or own the court order and is not liable for the order sought to be rescinded which it was not a party to, the judgment having been sought and obtained by 1st Respondent.”

“The court a quo grossly erred and misdirected itself at law by making a finding that the application justified a response from Zvimba East Veterans Investment Company (Pvt) Ltd, when it did not do so, thereby totally failing to appreciate the nature of the application before it as the law permits one or more shareholders, by suing a director who has acted unlawfully, to protect the interests of the company.”

“The court a quo grossly erred and misdirected itself on a point of both fact and law by finding that Zvimba East Veterans Investment Company (Pvt) Ltd had a story to tell which might be left out if the case proceeds to be heard on the merits, when in actual fact the material story of the company was before the court, having been told by the applicants who represented the company and its interests and who were permitted to do so by the law.”

“The court a quo grossly erred and misdirected itself on a point of law by failing to realise that no purpose would be achieved by joinder of Zvimba East Veterans Investment Company (Pvt) Ltd, which can only act through its directors including the appellants who never authorised the 1st Respondent to obtain the judgment to be rescinded.”

“The court a quo erred and misdirected itself on a point of law by finding that there was material non-joinder when Zvimba East Veterans Investment Company (Pvt) Ltd was not a necessary party whose non-inclusion would disenable the court to fully and effectively adjudicate on the application for condonation.”

“The court a quo grossly misdirected itself on a point of law and fact by awarding legal costs against Appellants in their individual capacity when as a matter of fact and law Appellants were representing the company to protect its interests.”

It is immediately apparent that the grounds of appeal are imprecisely framed and inordinately lengthy. They consist of verbose arguments attacking almost every aspect of the magistrate’s findings. Such prolix grounds of appeal do not comply with the requirement that grounds be clear and concise. Indeed, grounds of appeal that are unnecessarily long and convoluted are viewed as a nullity, since a court should not be made to sift through excessive verbiage in search of a valid point. In the present case, the six grounds of appeal – which largely overlap and repeat each other – are prolix and could be dismissed for that reason alone.

Notwithstanding their prolixity, the appellants’ grounds of appeal coalesce into a single decisive issue: whether the failure to cite the company, in whose favour the default judgment was entered, was fatal to the rescission application. In essence, all the grounds challenge the court a quo’s ruling that the non-joinder of that corporate entity rendered the application untenable. If that ruling was correct, it disposes of the appeal. Conversely, if the magistrate erred on that point, then and only then would it become necessary to consider the remaining arguments, including the question of costs. This court will therefore confine itself to the central issue of non-joinder.

The magistrate’s finding was that the company which benefitted from the default judgment was a necessary party to the rescission proceedings, and that the omission to cite that company was fatal. I find no fault with that conclusion. It is a fundamental principle of procedure that a litigant who seeks to set aside a judgment must cite all parties who would be affected by the rescission of that judgment. In this case, the default judgment sought to be rescinded was granted in favour of Zvimba East Veterans Investment Company (Pvt) Ltd. That company plainly had a direct and substantial interest in the subject matter of the rescission application, since a successful rescission would nullify a judgment made in its favour. To proceed in the absence of such a party would be to ambush that party and offend against the audi alteram partem principle. As the first respondent aptly observed in the court below, if the rescission were granted without the company’s involvement, “what will befall… the judgment granted in the favour of the Company”? The obvious answer is that it would become a legal nullity without the party most affected ever having been heard. Such an outcome is untenable.

The appellants argued that the company was not truly a necessary party because, in their view, the default judgment had been sought by the 1st respondent (an individual) without proper authority from the company. They contended, in effect, that the company itself did not “seek, obtain, possess or own” the judgment (as stated in ground 1), and that the appellants – as the company’s shareholders or directors – were entitled to protect the company’s interests by suing the misbehaving director (1st respondent) without joining the company (as suggested in ground 2). This argument is misconceived. Whatever internal irregularities may have occurred, the fact remains that the order of court was granted in the company’s name and for its benefit. That court order conferred legal rights upon the company (for example, rights over the funds or property at issue) which could not simply be disregarded. The proper way to challenge such an order was to bring the company before the court, so that it would be bound by any decision to reverse or vary the order. In other words, the company needed to be cited as a respondent in the rescission application, regardless of which human agency actually instigated the original proceedings.

Furthermore, the appellants’ position ignores the separate legal personality of the company. In law, a company is a juristic person distinct from its members or officers, and it can only act through its duly authorised representatives. Even if the 1st respondent was the chief executive of the company, he and the company are not one and the same in the eyes of the law. By the same token, the appellants, as directors or shareholders, cannot unilaterally usurp the company’s locus standi or “sue on its behalf” in their personal names without the company’s participation. The appellants cited the principle that shareholders may sue a director to protect the interests of the company, but that principle, sometimes applicable in derivative actions, does not override the necessity to join the company when the relief sought directly affects the company’s legal rights. Here, the application to rescind the default judgment was, in substance, an application to dispossess the company of a judgment it had obtained. The court a quo correctly reasoned that such relief could not be granted in the absence of the very party in whose favour the judgment was entered. Put simply, a default judgment cannot be rescinded behind the back of the judgment holder.

In light of the above, the magistrate’s decision to dismiss the rescission application for non-joinder cannot be faulted. The appellants failed to take the elementary procedural step of citing a plainly necessary party, and the court a quo was justified in holding that this rendered their application fatally defective. That finding effectively resolves this appeal. There is no need to delve into the merits of the rescission or the ancillary issue of costs in the court below. It may be observed in passing that an applicant who litigates in a personal capacity cannot avoid an adverse costs order by later claiming to have been “representing a company,” but in any event that argument is moot given the outcome.

In the final result, the appeal lacks merit. The magistrate’s ruling upholding the preliminary point of non-joinder is upheld.

Accordingly, the appeal is dismissed with costs.

Wamambo J…………………………

Mawadze Djp……………………….

L T Muringani Law Practice, appellants’ legal practitioners

Rufu-Makoni legal practitioners, 1st respondent’s legal practitioners