Adam Ebrahim Mohammed Dudhia and Somayya Meer v Yakub Mahomed

### Preamble
1
HH 547-18
HC 11541/17
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ADAM EBRAHIM MOHAMMED DUDHIA

and

SOMAYYA MEER

versus

YAKUB MAHOMED

HIGH COURT OF ZIMBABWE

NDEWERE J

HARARE, 10 January 2018 & 19 September 2018

Motion Proceedings

E Jera, for the plaintiffs

Ms Chinwawadzimba, for the defendant

NDEWERE J: The plaintiffs issued summons for civil imprisonment against the defendant on 13 December 2017. The summons called upon the defendant to pay $1 252 151.05 together with interest at the rate of 10% per annum calculated from 6 March 2017 to date of payment in full by virtue of a judgment of the High Court of 15 March 2017 which ordered him to pay $1 500 000.00 plus interest and costs.

The summons called upon the defendant to appear before the High Court on 10 January 2018, to show cause why an order for his civil imprisonment should not be made. It also called upon him to bring evidence of his financial position, his income, his expenses and that of dependence and any other liabilities. The summons informed him that there would be an inquiry into his financial position and depending on the circumstances, he may be given time to pay or be directed to pay in instalments over a specified period.

The summons for civil imprisonment were served personally on Yakub Mahomed at 18:07 hours on 13 December 2017. The plaintiff attached the judgment of 15 March 2017 for

$1 500 000.00 with interest at 10% per annum from 6 March 2017 to date of final payment; plus costs on an attorney and client scale. The plaintiffs also attached a nulla bona return of service by the Sheriff of Zimbabwe dated 12 December 2017.

The plaintiffs prayed for an order for civil imprisonment against the defendant for three months and that the order remain in operation until the defendant has paid $1 282 151.05, plus interest and costs.

The defendant appeared in court on 10 January 2018. He was armed with heads of argument which were filed on 9 January 2018. He opposed the summons for civil imprisonment. He said the writ of execution was based on a consent order. He said he had since applied to set aside the consent order. He said the basis of his opposition was that there was no nulla bona return and that there is a pending application seeking to set aside the consent judgment.

In para 6 of his heads of argument, the defendant said there was no basis for proceeding with the summons for civil imprisonment because there was no nulla bona return. He said the writ dated 16 November 2017 showed that shares of the defendant were placed under judicial attachment and therefore there were sufficient goods to satisfy the plaintiff’s debts. Apart from that bare assertion, the defendant did not provide any proof of the availability of the share certificates or their value. This omission was despite the fact of being told in specific terms to bring proof of his financial position. Para 9 of the Heads of argument repeated the assertion that there was no nulla bona return. He also said the amount claimed was contrary to the amount granted in the consent order. The defendant’s conclusion was that the summons for civil imprisonment must be dismissed to allow the application for setting aside of the consent order to be heard first.

In response, the plaintiff’s counsel referred the court to the nulla bona return on page 9 of the court action. Page 9 revealed a clear nulla bona return from the Sheriff. Plaintiff’s counsel also referred the court to section 20 of the High Court Act which states as follows:

“(3) The return of the Sheriff or a deputy sheriff or an assistant deputy sheriff or a person 	mentioned in subsection (2) of what has been done upon any process of the High Court shall 	be prima facie evidence of the matters therein stated.”

This section puts the onus of proof of an alleged improper nulla bona return on the defendant once the Sheriff has issued it. This means the onus to show that the nulla bona was not proper because defendant had sufficient property to extinguish the debt shifted to the defendant. Apart from the bald assertion, the defendant did nothing to discharge this onus.

From the background facts, the Sheriff did not just start by issuing a nulla bona. On 12 October, 2017, he attached some property and indicated on the return that the property was insufficient to satisfy the debt. Then on 3 November 2017 the Sheriff’s return indicated that removal was stopped by interpleaders. Later, defendant’s shares in Luxareflor Roses (Pvt) Ltd were attached, but the Sheriff realised that the share certificates were not readily available since the company was private. This meant that the shares could not be sold in execution. The Sheriff then issued a nulla bona return after the frustration of all his execution efforts.

During submissions, defendant’s counsel later conceded that the Sheriff had issued a nulla bona return but that it was not availed to the defendant before the day of the hearing. She said that was the reason why defendant had not presented his financial position to the court.

On the application to set aside the consent order, the defendant argued that the amount due was likely to be reduced and that the summons for civil imprisonment should be dismissed until the application challenging the consent order was finalized. After oral submissions in court, the parties were invited to file closing submissions. The defendant got carried away and made submissions on issues which were not before the court. The court restricted itself to matters presented before it in court and disregarded the excess material.

While the parties were awaiting judgment, judgment in HC 11178/17 wherein the High Court dismissed the defendant’s application for the setting aside of the consent order of 15 March, 2017 was delivered. In a letter dated 15 March 2018 plaintiff’s counsel attached the judgment.. That development put to rest the defendant’s argument that his application would succeed in setting aside the consent order or varying it. The judgment in HC 11178/17 also removed the basis of the defendant’s objection to the civil imprisonment summons. His objection was because he wanted his challenge to the consent order to be determined first. The preliminary point of asking the court to wait for the determination of the application in HC 11178/17 was therefore overtaken by events. The preliminary objection is therefore dismissed. In fact

HC 11178/17 confirmed the validity of the consent order of 15 March, 2017.

As already pointed out in this judgment, once the Sheriff issued a nulla bona return it was for the defendant to show that the issuance was either premature or improper. Unfortunately, the defendant did not adduce any evidence of impropriety. So the nulla bona remains valid. The preliminary point challenging the validity of nulla bona return by the Sheriff is therefore dismissed.

Part II of the Civil Imprisonment summons requested the defendant to provide proof of his financial position. Although he was legally represented, the defendant chose to appear in court without even an aorta of evidence of his financials. Given the background of this case and the huge undisputed capital debt, the defendant ought to have come to court with evidence of his income and expenditure. Coming to court with no such evidence after being personally served with a self-explanatory summons for civil imprisonment amounts to taking the court too much for granted.

Be that as it may, his submissions to the court revealed a capacity to pay. Nowhere did he say he was unable to pay. The impression created by his submissions to the court is that he has sufficient property to extinguish the debt. Yet he has not extinguished the debt despite acknowledgements, despite a deed of settlement and despite a consent order about the undisputed balance outstanding. This makes the defendant a good candidate for civil imprisonment. As stated in the case of Chinamhora v Angwa Furnisher (Pvt) Ltd & Ors, 1996 (2) ZLR 664 SC, civil imprisonment “is a means of compelling a debtor, who is able to do so, to satisfy a judgment. It is not a measure of punishing a debtor who cannot pay.” Therefore since the debtor had capacity to pay, he must be imprisoned to induce him to pay.

The plaintiff asked that defendant be imprisoned for three months. During oral submissions, he agreed that two months could be suspended on condition the defendant tenders payment.

Accordingly, it is ordered that:

An order for civil imprisonment be and is hereby granted against the defendant for three months; with two months suspended on condition the defendant tenders payment.

This order of civil imprisonment will remain in operation until the defendant has paid the sum of US$1 282 151.05 together with 10% interest thereon calculated from 6 March, 2017 to date of payment.

The defendant shall pay costs on a client and legal practitioner scale.

Moyo & Jera, plaintiffs’ legal practitioners

Devitte, Rudolph and Timba, defendant’s legal practitioners