Верховный суд Хараре отклонил иск по делу о наследстве Гарта Финотти, указав, что регистрация замбийского решения не дает юрисдикции над иностранцами

The High Court in Harare has struck off an application arising from a long-running dispute over the estate of the late Garth Finaughty, ruling that the registration of a Zambian judgement in Zimbabwe does not, by itself, give Zimbabwean courts jurisdiction over a foreign person. Justice Nokuthula Moyo made the ruling in an opposed application involving Tasha Sandra Hammard and Darryl John Hammond against Joyce Zulu, Lioneel Joseph Finaughty, Kudzanai Pascal Matenhese, the Master of the High Court, the Registrar of Deeds and Twiga Investments (Private) Limited. The case has its roots in an estate dispute that previously played out in Zambia, where Zulu was convicted of fraud after being found guilty of falsely presenting herself as the widow of the late Ian Garth Finaughty and improperly dealing with assets belonging to his estate. In the Zambian proceedings, the court heard that Zulu had presented herself before the Boma Local Court and the Ministry of Lands as Finaughty’s wife in order to obtain letters of administration and title deeds to Farm No. 10833. She was subsequently convicted on three counts involving the provision of false information to public officers and depriving rightful beneficiaries of their inheritance. The Zambian court found that Zulu had subdivided and sold portions of the farm, disposed of a boat and dealt with a company linked to the estate without providing benefits to the rightful beneficiaries. The latest Zimbabwean proceedings concern the applicants’ efforts to challenge the administration and registration of the estate in Zimbabwe. Hammard and Hammond sought a declaratory order setting aside the registration of Finaughty’s estate with the Master of the High Court under DRB 418/13, together with all subsequent actions and processes arising from that registration. They also sought cancellation of deed registrations DT 000360/21 and DT 0000057/22 and an order declaring DT 1398/90 valid. The applicants alleged that they were beneficiaries in the estate and that its administration in Zimbabwe was based on fraud. The respondents denied the allegations and argued that no fraud had been proved. They also filed a counter-application seeking to set aside an earlier order relating to the registration of a Zambian court judgment, arguing that the foreign judgment had not been properly registered with the Zimbabwean court. A central preliminary objection concerned the Zimbabwean court’s jurisdiction over Zulu, who is a Zambian national. The respondents argued that Zulu was a foreigner and that the applicants had failed to obtain the necessary leave to sue her or otherwise establish the court’s jurisdiction over her. They further argued that the applicants themselves were peregrini, persons regarded as foreign to the court’s jurisdiction, and had not provided security for costs. The applicants argued that jurisdiction had been established through the registration of the Zambian judgement in Zimbabwe. They relied on Section 6 of the Civil Matters and Mutual Assistance Act (Chapter 8:02), contending that once a foreign judgment was registered, the Zimbabwean court had control over it as though it were its own judgment. Justice Moyo rejected that argument. The judge held that registration of a foreign judgement enables a Zimbabwean court to recognise and enforce the judgement, but does not automatically create jurisdiction over a foreign person. “The section cited by the applicant under the Civil Matter and Mutual Assistance Act (supra) simply states that a registered judgement or order, once registered, the Zimbabwean court will have control over it as if it were its judgment, but that does not sound to me as conferring jurisdiction on the Zimbabwean courts where they have none because the section does not say so,” Justice Moyo said. The court drew a distinction between jurisdiction to recognise and enforce a foreign judgment and personal jurisdiction over a foreign plaintiff or defendant in relation to other matters. Justice Moyo said that when a foreign judgment is registered, the Zimbabwean court is not retrying the original dispute but is instead recognising and enforcing the judgment within Zimbabwe. The judge further held that registration does not empower a Zimbabwean court to revisit, alter, qualify or change the substance of the foreign judgment. “Registration in my view, makes the foreign judgement recognised and enforceable in Zimbabwe as if it were a Zimbabwean judgement but it does not create personal jurisdiction by the court over a foreigner where none has been established,” the judge ruled. The court said jurisdiction over a foreign litigant must be properly established in accordance with the law and cannot be created merely through registration of a foreign order. “If the Zimbabwean courts have not established jurisdiction over applicant and 1st Respondent like in this case, registration alone cannot confer jurisdiction to make new and subsequently substantive orders either for them or against them,” Justice Moyo said. The judge stated that registration of a foreign judgement in Zimbabwe does not, by itself, confer jurisdiction over a foreigner where such jurisdiction did not previously exist. The preliminary objection concerning the applicants’ status as foreigners, together with the jurisdictional objection relating to Zulu, was upheld. The application was consequently struck off the roll with costs. Discover more from Nehanda Radio Subscribe to get the latest posts sent to your email.