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Chief Justice Chidyausiku on Wednesday dismissed with costs an appeal that was lodged by Mr Masunda.
Dismissing the appeal in which VP Nkomo was the applicant, the Chief Justice said in the appeal noted on 4 May 2010, Mr Masunda failed to comply with Rule 34 as read with Rule 36 of the Supreme Court Rules, 1964.
Mr Masunda through his lawyer, Mr Vonani Majoko, of Majoko and Majoko filed an application on 14 November 2008 seeking the rescission of a judgment entered by the then Judge President Rita Makarau.
VP Nkomo filed a notice of opposition on 28 November 2008 and served a copy on Mr Masunda’s legal practitioners.
By 5 January 2009 more than a month later, Mr Masunda neither filed an answering affidavit nor set the matter down for hearing.
On 26 March 2009, Justice Chinembiri Bhunu sitting at the Harare High Court dismissed with costs Mr Masunda’s application for rescission of a default judgment entered against him by Justice Makarau.
Mr Masunda then lodged an appeal against Justice Bhunu’s judgment.
VP Nkomo through his legal practitioner Mr Christopher Dube-Banda, of Dube-Banda, Nzarayapenga and Partners on 12 October 2010 made an application to dismiss Mr Masunda’s appeal without hearing in the Supreme Court.
In his founding affidavit, Mr Dube-Banda argued that there was no valid Notice of Appeal before the court.
“The judgment appealed against was delivered on 26 March and the purported Notice of Appeal was filed with this court on 4 May 2009. This was 26 days after the delivery of the judgment appealed against.
“Rule 30 of the Rules of the Supreme Court, 1964, says; ‘An appellant shall institute an appeal within the following time a) if leave to appeal is not necessary, by serving notice of appeal within fifteen (15) days of the date of the judgment appealed against’,” Mr Dube-Banda wrote.
He said the notice of appeal was filed long after the 15-day period within which it should have been filed.
Mr Dube-Banda also said no application for extension of time within which to note the appeal was filed in terms of Rule 31 of the Supreme Court.
He adds: “The Notice of Appeal must have been filed and delivered not later than 16 April 2009, failure which an application for leave to appeal out of time must have been filed in terms of Rule 31.
“There is no valid Notice of Appeal before the court. It is a nullity. It is not only bad but incurable bad.”
He argued that even if Mr Masunda had applied for leave to appeal out of time, the application would have been dismissed because the appeal is devoid of merit.
“Appellant has no offer letter, no permit and lease agreement for the piece of land he is fighting for. The Lodge in dispute is in the land allocated to the applicant (VP Nkomo),” said Mr Dube-Banda.
He noted that Mr Masunda’s failure to furnish security in terms of the Supreme Court Rule 34 (1) which stipulates that at the time of noting an appeal or within such period there from, not exceeding five days as the Registrar of the High Court allows, appellant has to deposit the estimated costs of the preparation of the record.
He said failure to comply with Rule 34 (1) rendered the Notice of Appeal a nullity.
“The respondent filed his purported Notice of Appeal with the Supreme Court on 4 May 2009. Respondent through Messrs Dube, Manikai and Hwacha Legal Practitioners collected the appeal record from the High Court for photocopying. By letter dated 6 May 2010, the Registrar of the High Court demanded the return of the record within three days thereof, to date the record has not been returned,” observed Mr Dube-Banda.
He said as he filed the application there was no record at the High Court adding that this had been done deliberately by the appellant to delay as much as possible the finalisation of the matter.
Online Reporter