Africa-Press – Zimbabwe. THE High Court has removed businessmen Gilbert Muponda and Nyasha Watyoka from the directorship of a local company, The Right Investment (Pvt) Ltd, after they acquired a court order fraudulently.
The Right Investment had approached the High Court, suing Muponda, Watyoka, Kunze Kwaedza Enterprise, Phillipa Ann Coumbis, the Registrar of Deeds and the Registrar of Companies, seeking a judgment handed down to be declared a nullity for fraud.
The company also sought the court to stop Muponda and Watyoka from acting as directors, shareholderss or officers.
The application was made through one of its directors, Martin Murimirambewa, who argued that he is duly authorised to depose the founding affidavit and to institute court proceedings on behalf of the applicant.
According to court papers, on September 14, 2022, an order was granted by the High Court in case number HC 5385B/22 in Murimirambewa’s name.
The order set aside Deed of Transfer No 558/21 issued in favour of Kunze Kwayedza Enterprises, with Murimirambewa contending that the order was fraudulently obtained after Muponda and Watyoka falsely represented themselves as directors and authorised representatives of the applicant.
Murimirambewa said he became aware of the existence of the order on October 26, 2022, after the City of Harare informed the directors that the deed of transfer had been cancelled through a court order.
On perusing the record, it emerged that the founding affidavit had been deposed by Watyoka, based on a purported company resolution signed by Muponda on August 2, 2022.
Murimirambewa argued that Muponda and Watyoka ceased to have any legal or beneficial interest in the company following the liquidation of ENG Capital Investments in 2004, whose assets were sold to Prosdeng Investments (Pvt) Ltd.
The Supreme Court in SC 130/21 and the High Court in HH 820/20 confirmed that Muponda and Watyoka were no longer directors or shareholders of the company.
Muponda and Watyoka, however, continued to identify themselves as directors while acting fraudulently in the applicant’s name, leading to the application for rescission and interdict.
However, Muponda and Watyoka raised a preliminary point arguing that there was a material dispute that could not be resolved on the papers, seeking the matter to be referred to trial.
But High Court judge Justice Maxwell Takuva found no merit in their contention, saying the so-called disputes raised by the duo were neither genuine nor bona fide.
He said their alleged Murimirambewa directorship was an issue already conclusively determined in HH 820/20 and SC 130/21, where both courts held that the duo had ceased to be directors and shareholders of the applicant.
The judge said Muponda and Watyoka did not place before the court anything but bald assertions unsupported by any documentary proof.
Justice Takuva also dismissed the point in limine premised on an alleged dispute, adding that Murimirambewa had produced documentary evidence showing that Muponda and Watyoka are not directors.
The judge said the company resolution used to institute the proceedings in HC 5385B/22 was, therefore, a nullity, having been signed by persons without authority.
“The court will not exercise its equitable discretion in favour of one who approaches it with unclean hands or for purposes of delay or deceit.
“In casu, the first and second respondents, having fraudulently obtained an order without authority, cannot benefit from the court’s indulgence,” he said.
He declared that the judgment of September 2022 was a nullity for fraud.
“For the avoidance of doubt, any act done by the first and second respondents pursuant to and in terms of that order is declared null and void,” Justice Takuva ruled.
“The first and second respondents are interdicted and restrained from purporting to be directors, shareholders or officers of the applicant.”
The judge ordered Muponda and Watyoka to pay the costs of the suit on a scale of attorney and client.
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