NYAHORA v YAMBUKAI FINANCE (170 of 2025) [2025] ZWHHC 170 (17 March 2025)

3 HH 170-25 HCH 24/23 NICHOLAS NYAHORA versus YAMBUKAI FINANCE HIGH COURT OF ZIMBABWE MAWADZE DJP and WAMAMBO J HARARE; 21 November 2024 and 17 March 2025 Civil Appeal T Muzana, for the appellant B T Hodzi, for the respondent WAMAMBO J. This is an appeal against the Magistrate’s judgement dismissing the appellant’s application for rescission of a default judgement and stay of execution pending rescission of judgment. After oral submissions we rendered an ex tempo judgement and dismissed the appeal with costs. Appellant now seeks full reasons for the dismissal of his appeal. These are they: - Plaintiff (respondent herein) a money lender entered into a written loan agreement with defendant (appellant herein) wherein defendant was loaned the sum of US900,00 to be repaid in three instalments. The defendant failed to repay the loan in accordance in the terms of the written agreement. Plaintiff prayed for an order of the delivery of a motor vehicle which defendant ceded to plaintiff or payment of USD$ 1980.00 Service of the summons was effected at the defendant home by affixing it to the outer principal black gate after an unsuccessful diligent search. The dieus induciae expired and defendant did not enter an appearance to defend. Plaintiff applied for a default judgement which was granted. Appellant (as applicant) applied for rescission of judgement in the court a quo He avers that he failed to attend the hearing as he was not aware of the court case and summons. Further that he had travelled out of town to check on a project and there was no one at home when the summons were served. He also avers that he has a bona fide defence because of the usurious interest charged on the loan. Appellant also filed an application for stay of execution The founding affidavits for the rescission of judgement and application for stay of execution are identical from para (s) 5-11. The court a quo heard the two applications and dismissed both of them. The court a quo found that the explanation for the default was not satisfactory and that there was no evidence attached by appellant reflecting that he had indeed travelled. The court a quo also found that appellant had no bona fide defence to the claim and that appellant signed an agreement ceding his rights to his motor vehicle to the respondent. The court also found that respondent is a registered micro finance institution which is authorised at law to lend money and whose interests’ rates are governed at law. Dissatisfied by the outcome appellant filed a notice of appeal, which reads as follows:- “1. The court erred grossly when it made a finding that the appellant’s default was willful especially considering that:- 1.1 The court denied that that the applicant had travelled because he had not attached affidavit to prove that he had travelled (sic) 1.2 The summons were attached out of the gate and they could have been removed by somebody. (sic) 2. The court erred grossly when it denied that the summons are defective when they were sounding in United States dollars which is not legal tender in Zimbabwe. 3. The court erred grossly when it made a finding that the issue of summons was raised to frustrate the respondent. 4. The court a quo erred grossly when it made a finding using information which was not submitted by the respondent especially considering that: - 4.1 No proof was submitted to prove that the respondent is authorised to operate in terms of the RBZ Operational Guidelines. 4.2 That the respondent is authorised to claim in United State dollars.” The grounds of appeal contain grammatical and typographical errors. They are also winding. With some effort one can just make out the meaning thereof. I will deal with the grounds of appeal presently. Grounds 1 to 3 These grounds are best considered together as they are interwoven with each other. It is important to consider Order 30 of the Magistrates Court Rules,2019 which deals with the requirements in an application for rescission of judgement. It reads on the relevant portions as follows: - “1. Application for rescission or variation of default judgment Any party against whom a default judgement is given may not later than one month after he or she has knowledge thereof, apply to the court to rescind or vary such judgment. Any application in terms of sub rule (1) shall be on affidavit stating shortly the reasons why the applicant did not appear or file his or he plea andthe grounds of defence to the action or proceedings in which the judgment was given or of objection to the judgment” It becomes clear that the reasons for the default and the grounds of defence are conjunctive The appellant averred that he never saw the summons and that there was no one at home He averred that he had travelled. He does not say where he travelled to and when he returned. He does not avail any supporting evidence of his travel or a supporting affidavit buttressing his claim of having travelled. Appellant avers that there was no one at home. He is not candid enough to say whether or not other people reside with him and where they had gone to on the dates the summons was served. None of the occupants of his place of abode lend him any support in his application. In the answering affidavit appellant in para 4 contradicts himself when he vaguely says his family is always at home. The impression created is that appellant willful defaulted in filing his appearance to defend. The defence proffered by the appellant impugns the authority of respondent to charge what he terms usurious interests. As found by the court a quo there is no basis for that allegation. It is just a claim for the sake of it. Appellant does not prove the illegality he alleges. The order by the court a quo speaks to the payment of US$1980 or its equivalent (in local currency). Ground 3 appears to be just a statement which does not advance appellant’s case. The reasons why the court a quo was of the view that appellant in impugning the summons he meant to frustrate the respondent are reflected in the judgement of the court a quo. The reasons resonate with the circumstance of the case. That the appellant has raised no reasonable grounds of defence is buttressed by the following: - There is a loan agreement executed by the parties which clearly reflects the amount appellant borrowed, the terms, amounts, time lines of repayment, the interest rates and the possible capitalization of the interest upon default. The appellant despite the clarity of the payment terms does not in his pleadings object to the same. He does not even say how much he paid towards the debt, if anything. Appellant also entered into an agreement with respondent that is encapsulated in a written agreement titled “Yambukai Finance (Pvt) Ltd Cession Form” Therein appellant ceded his motor vehicle as security until payment of the money advanced to him by respondent. In that agreement appellant authorised respondent to dispose of, transfer or deal with the motor vehicle upon his defaulting on payments towards the loan. The appellant does not allege nor is it apparent that he signed the two agreements referred to above by duress. In the circumstances, the first three grounds are without merit. Ground 4 The appellant entered into an agreement with respondent who in the preamble of the loan agreement is described as a registered money lender in terms of the Microfinance Act [Chapter 24:30] The findings made by the court a court flowed from the fact that respondent is an authorised money lender in terms of the Microfinance Act [Chapter 24:30]. No evidence was adduced to the contrary by appellant. In the totality of the circumstances we found the appeal unmeritorious for the above reasons and issued an order dismissing the appeal with costs. Wamambo J:.................................. MAWADZE DJP agrees......................................... Tapera Muzare and Partners, appellants’ legal practitioners Mundieta and Wagoneka- Madzivanyika Law, respondents’ legal practitioners 3 HH 170-25 HCH 24/23 3 HH 170-25 HCH 24/23 NICHOLAS NYAHORA versus YAMBUKAI FINANCE HIGH COURT OF ZIMBABWE MAWADZE DJP and WAMAMBO J HARARE; 21 November 2024 and 17 March 2025 Civil Appeal T Muzana, for the appellant B T Hodzi, for the respondent WAMAMBO J. This is an appeal against the Magistrate’s judgement dismissing the appellant’s application for rescission of a default judgement and stay of execution pending rescission of judgment. After oral submissions we rendered an ex tempo judgement and dismissed the appeal with costs. Appellant now seeks full reasons for the dismissal of his appeal. These are they: - Plaintiff (respondent herein) a money lender entered into a written loan agreement with defendant (appellant herein) wherein defendant was loaned the sum of US900,00 to be repaid in three instalments. The defendant failed to repay the loan in accordance in the terms of the written agreement. Plaintiff prayed for an order of the delivery of a motor vehicle which defendant ceded to plaintiff or payment of USD$ 1980.00 Service of the summons was effected at the defendant home by affixing it to the outer principal black gate after an unsuccessful diligent search. The dieus induciae expired and defendant did not enter an appearance to defend. Plaintiff applied for a default judgement which was granted. Appellant (as applicant) applied for rescission of judgement in the court a quo He avers that he failed to attend the hearing as he was not aware of the court case and summons. Further that he had travelled out of town to check on a project and there was no one at home when the summons were served. He also avers that he has a bona fide defence because of the usurious interest charged on the loan. Appellant also filed an application for stay of execution The founding affidavits for the rescission of judgement and application for stay of execution are identical from para (s) 5-11. The court a quo heard the two applications and dismissed both of them. The court a quo found that the explanation for the default was not satisfactory and that there was no evidence attached by appellant reflecting that he had indeed travelled. The court a quo also found that appellant had no bona fide defence to the claim and that appellant signed an agreement ceding his rights to his motor vehicle to the respondent. The court also found that respondent is a registered micro finance institution which is authorised at law to lend money and whose interests’ rates are governed at law. Dissatisfied by the outcome appellant filed a notice of appeal, which reads as follows:- “1. The court erred grossly when it made a finding that the appellant’s default was willful especially considering that:- 1.1 The court denied that that the applicant had travelled because he had not attached affidavit to prove that he had travelled (sic) 1.2 The summons were attached out of the gate and they could have been removed by somebody. (sic) 2. The court erred grossly when it denied that the summons are defective when they were sounding in United States dollars which is not legal tender in Zimbabwe. 3. The court erred grossly when it made a finding that the issue of summons was raised to frustrate the respondent. 4. The court a quo erred grossly when it made a finding using information which was not submitted by the respondent especially considering that: - 4.1 No proof was submitted to prove that the respondent is authorised to operate in terms of the RBZ Operational Guidelines. 4.2 That the respondent is authorised to claim in United State dollars.” The grounds of appeal contain grammatical and typographical errors. They are also winding. With some effort one can just make out the meaning thereof. I will deal with the grounds of appeal presently. Grounds 1 to 3 These grounds are best considered together as they are interwoven with each other. It is important to consider Order 30 of the Magistrates Court Rules,2019 which deals with the requirements in an application for rescission of judgement. It reads on the relevant portions as follows: - “1. Application for rescission or variation of default judgment Any party against whom a default judgement is given may not later than one month after he or she has knowledge thereof, apply to the court to rescind or vary such judgment. Any application in terms of sub rule (1) shall be on affidavit stating shortly the reasons why the applicant did not appear or file his or he plea and the grounds of defence to the action or proceedings in which the judgment was given or of objection to the judgment” It becomes clear that the reasons for the default and the grounds of defence are conjunctive The appellant averred that he never saw the summons and that there was no one at home He averred that he had travelled. He does not say where he travelled to and when he returned. He does not avail any supporting evidence of his travel or a supporting affidavit buttressing his claim of having travelled. Appellant avers that there was no one at home. He is not candid enough to say whether or not other people reside with him and where they had gone to on the dates the summons was served. None of the occupants of his place of abode lend him any support in his application. In the answering affidavit appellant in para 4 contradicts himself when he vaguely says his family is always at home. The impression created is that appellant willful defaulted in filing his appearance to defend. The defence proffered by the appellant impugns the authority of respondent to charge what he terms usurious interests. As found by the court a quo there is no basis for that allegation. It is just a claim for the sake of it. Appellant does not prove the illegality he alleges. The order by the court a quo speaks to the payment of US$1980 or its equivalent (in local currency). Ground 3 appears to be just a statement which does not advance appellant’s case. The reasons why the court a quo was of the view that appellant in impugning the summons he meant to frustrate the respondent are reflected in the judgement of the court a quo. The reasons resonate with the circumstance of the case. That the appellant has raised no reasonable grounds of defence is buttressed by the following: - There is a loan agreement executed by the parties which clearly reflects the amount appellant borrowed, the terms, amounts, time lines of repayment, the interest rates and the possible capitalization of the interest upon default. The appellant despite the clarity of the payment terms does not in his pleadings object to the same. He does not even say how much he paid towards the debt, if anything. Appellant also entered into an agreement with respondent that is encapsulated in a written agreement titled “Yambukai Finance (Pvt) Ltd Cession Form” Therein appellant ceded his motor vehicle as security until payment of the money advanced to him by respondent. In that agreement appellant authorised respondent to dispose of, transfer or deal with the motor vehicle upon his defaulting on payments towards the loan. The appellant does not allege nor is it apparent that he signed the two agreements referred to above by duress. In the circumstances, the first three grounds are without merit. Ground 4 The appellant entered into an agreement with respondent who in the preamble of the loan agreement is described as a registered money lender in terms of the Microfinance Act [Chapter 24:30] The findings made by the court a court flowed from the fact that respondent is an authorised money lender in terms of the Microfinance Act [Chapter 24:30]. No evidence was adduced to the contrary by appellant. In the totality of the circumstances we found the appeal unmeritorious for the above reasons and issued an order dismissing the appeal with costs. Wamambo J:.................................. MAWADZE DJP agrees......................................... Tapera Muzare and Partners, appellants’ legal practitioners Mundieta and Wagoneka- Madzivanyika Law, respondents’ legal practitioners