Legal and Parliamentary Affiars

Grand Hotel’s bid to evict James Sakala upheld in court

By Lovemore Chazingwa in Kadoma
Kadoma magistrate Ruvimbo Murandu dismissed applications for rescission of default judgment and another of stay of execution of default judgment filed by  James Sakala at Kadoma magistrates court, civil division.
Both applications were dismissed with costs on an ordinary scale.
The judgment was passed on the 11th of this month after Sakala sought relief from the court for both applications.
The main matter emanated from an intention to evict him from an office he is leasing at Grand Hotel Room 5B, 7-8 Hebert Chitepo Street.
“Before the court were two applications filed simultaneously. The first was for a stay of execution of a default judgment and the other was for rescission of the same.
“Applicant is the defendant in the main matter wherein the respondent issued all summons for the new applicant to be evicted.
“After filing his appearance to defend, the applicant did not file further process and the respondent, who is the plaintiff in the main matter, applied for default judgment against the applicant,” read a preamble to the judgment.
The judgment revealed that:
1. The applicant for rescission of default judgment granted on 4 February 2020, be and is hereby dismissed.
2. The rule granted on 17 February 2020 be and is hereby discharged.
3. The applicant to bear costs for both applications on an ordinary scale.
In reading out her judgment the presiding magistrate observed that: “The law on rescission of default judgments in the magistrates’ court is clear. A party only needs to satisfy the court with two things namely:
a). That he was not in willful default and
b). there is a good prospect that the proffered grounds of defense and proffered objection may succeed.  Magistrate Murandu noted that: “A notice to plead in terms of Order ll Rule 3 is not a prerequisite for a defendant to plead. “Instead, its purpose is to call upon a defendant to file a plea failure of which the plaintiff will be at liberty to apply for judgment against the defendant in default of a plea.”
This means for a defendant to enter his plea, there is no need for a notice to plead to call upon him to file his plea. This means a notice to plead acts on at the defendant such that he will act be allowed to file any process save for a plea if he has been so served this the notice to plea. It is on this basis that the court is of the finding that the applicant’s failure to file plea is not convincing,” said the judgment.
The court noted that the applicant is legally represented and yet his legal counsel did not give advice leading to the granting of the default judgment.
“In case, the applicant was legally represented and as such counsel ought to have known of the requirement to file a plea within the 7 days period.
“It is generally accepted that litigant cannot escape the sins of his lawyer.
“The explanation that there was a communication error between counsel and their correspondence is not enough to exonerate the applicant.
“Basing on the above, the court is of the finding that applicant was in willful default.” read the judgment.

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Byron Adonis Mutingwende