The High Court has overturned a default judgment against businessman Lloyd Vernon Mina over disputed excavator and truck deals after finding that court papers were improperly served and damages were awarded without evidence proving the losses.
In a recent ruling, Justices Munamato Mutevedzi and Bongani Ndlovu said the magistrate had relaxed the rules governing service of court papers and wrongly refused to reopen the case, despite serious defects in the messenger of the court’s return of service.
The judges also condemned the award of damages without supporting evidence, stressing that a litigant cannot secure compensation merely because the opposing party failed to defend a claim.
“In Zimbabwean civil procedure, the phrase ‘proper service’ is a statutory and procedural term and not some loose common-sense concept,” Mutevedzi said.
Follow us on WhatsApp | LinkedIn for the latest headlines
The judges added that the lower court had “unilaterally relaxed the rules of service” and “awarded a party damages without proof of their quantum”.
Mina and William Francis Rose, estranged business associates, are embroiled in a dispute over a 1-2.5 cubic metre bucket excavator and a low-bed truck imported from Norway through Kazungula Border Post in May 2025.
Rose claimed Mina had expressed interest in buying the equipment and was allowed to take possession while negotiations were under way, but the parties failed to conclude a sale. He alleged that Mina subsequently continued using the machinery without authorisation.
In November 2025, Rose sued Mina in the Victoria Falls Magistrates Court, seeking the return of the equipment and damages calculated at US$145 an hour for hiring an excavator and US$6.50 an hour for hiring a low-bed truck, each calculated at three hours per day from May 14, 2025, until final judgment.
He also sought to set off any amounts awarded against US$30,000 belonging to Mina and allegedly held by him.
The court entered default judgment on December 4, 2025, after the messenger of the court reported that the summons had been served on Mina’s mother, identified only as “Mrs Jane”.
Mina said he only learnt of the judgment on December 9, when the messenger of the court arrived at his workplace in Hwange to attach the equipment.
He challenged the service, arguing that he had never received the summons and that the return of service did not properly identify the person who had allegedly accepted it.
The magistrate rejected his application to rescind the judgment, finding that service on his mother was valid and that she had telephoned him about the proceedings. The court also found that Mina had failed to establish a genuine defence to Rose’s claim.
But the High Court found that the return of service was fatally defective because it omitted essential details required by the rules.
Mutevedzi said the document did not record the recipient’s full names, establish that she was apparently at least 16 years old or indicate that the messenger had shown her the original summons and explained its nature and urgency.
“A proper return must state the full names of the person who received the process to allow for clear identification if the service is, like in this case, later disputed,” the judge said.
The court rejected the suggestion that the messenger’s subsequent explanation in court could cure the defects without proper supporting evidence.
“The return of service was a clear nullity. It does not constitute prima facie proof of proper service,” Justice Mutevedzi ruled.
The judges said the distinction was crucial because the law requires formal compliance with prescribed methods of service, not merely proof that a defendant might have heard about a lawsuit.
“Simply handing a document to someone or telling them about a lawsuit over the phone or via an informal message does not satisfy the law,” the judgment stated.
The court also found that Mina had raised a genuine defence requiring a trial, with the parties giving conflicting accounts of the transaction and the money paid.
Mina maintained that he had paid Rose US$36,000 towards the purchase of the equipment and that Rose had acknowledged receiving the money before offering to refund it in exchange for the machinery.
Rose disputed that an agreement of sale had been concluded, arguing that the money had been paid in anticipation of a possible deal and that the agreed purchase price was US$43,000.
The judges said the competing accounts raised a substantive dispute that could not be resolved at the stage of an application to rescind a default judgment.
“Those were not peripheral disputes. They went directly to the foundation of the first respondent’s cause of action and the appellant’s proposed defence,” Justice Mutevedzi said.
The court added that Mina did not have to prove his defence at that stage, but only demonstrate that his allegations, if established at trial, could provide a defence to the claim.
“In our view, the answer is plainly in the affirmative. The appellant crossed that threshold,” the judges ruled.
In a further rebuke to the lower court, the High Court said the damages award was unsustainable because Rose had not filed an affidavit of evidence establishing the nature and amount of his alleged losses.
Rose’s lawyer conceded the point on appeal.
“A default judgment does not entitle a plaintiff to an award unsupported by evidence,” Mutevedzi said.
The judge added that a court must still satisfy itself that the relief sought is legally and factually justified, even when the defendant has failed to appear.
The appeal court also overturned the magistrate’s finding that an interim order protecting Mina’s property had lapsed when the matter was postponed. It held that postponing the return date automatically carried the rule nisi forward to the new date, unless the court ordered otherwise.
The judges ultimately set aside the magistrate’s decision and granted Mina’s application to rescind the default judgment issued on December 4, 2025.
Mina was ordered to enter an appearance to defend or file another response to Rose’s claim within 10 days.
The ruling does not determine who owns the disputed equipment or whether either party breached an agreement. Those issues remain to be resolved in the main proceedings.
Each party was ordered to bear its own costs, with the court noting that the appeal arose principally from misdirections by the lower court rather than improper conduct by either litigant.
Mina was represented by J. Mugova of Titan Law Chambers, while Rose was represented by M. Ncube and K. Nxumalo of Ncube Attorneys.
Read the original article on New Zimbabwe.
