Mary J Mazhude and Tendai Celani Mazhude v Honoratio Nilo Fernandes and Ramis Trading (Pvt) Ltd and George Mazhude and Messenger of Court

### Preamble
1
HH 551-18
CIV ‘A’ 135/16
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MARY J MAZHUDE

and

TENDAI CELANI MAZHUDE

versus

HONORATIO NILO FERNANDES

and

RAMIS TRADING (PVT) LTD

and

GEORGE MAZHUDE

and

MESSENGER OF COURT

HIGH COURT OF ZIMBABWE

CHITAKUNYE & NDEWERE JJ

HARARE, 29 June 2017 and 20 September 2018

Civil appeal

N Chikono, for the appellants

Respondents in default

NDEWERE J: The background of the matter is that the first respondent obtained a judgment by consent against the second respondent and the third respondent and one Cuthbert Mazhude who was the third defendant in that matter on  26 February 2015 in Case No, MC 30534/14. On 20 March, 2015, the fourth respondent issued a warrant of execution against property. On 11 May, 2015, the fourth respondent attached movable property on No 12 Birkdale Drive Glenlorne, Harare. No. 12 Birkdale is the matrimonial home of the first appellant and the third respondent. The goods were later removed and taken into custody by the fourth respondent.

The first and second appellants claimed that the attached property was theirs. The first appellant claimed the following

The two sets of sofas; and

The Mercedes Benz C240 registration number ABK 0278 and

A Nissan Hardbody motor vehicle registration number BAI/0204 in the name of Rumbidzayi Sheron Chirume were her property.

The second appellant claimed the television set and microwave as his. The second appellant is a son to the first appellant and third respondent.

The matter went to court as an interpleader and the magistrate’s court dismissed the appellants’ claims with costs on the ordinary scale on 3 March, 2016. The detailed reasons were furnished to the appellants on 30 March 2016.

On 4 April, 2016, the appellants noted an appeal against the magistrate’s decision. Their grounds of appeal were as follows:

The learned magistrate erred in finding that property subject of the interpleader proceedings was/is specially executable yet it was already brought to his attention that the applicant therein (4th respondent) had already disposed of the property before his order was made, thus making the judgment just a ratification of what otherwise is a clear illegal sale of the goods.

The learned magistrate erred in not referring the matter to a trial or oral hearing in view of the existence of evidence which prima facie established the rights of the appellants to the property so that their evidence could be tested under cross-examination as he clearly noted that order 27 (5) of the Magistrates Court Rules allows for that:

The learned Magistrate misdirected himself in his conclusion that the presence of the property at the judgment debtor’s residential property was not explained yet he found that the first appellant is a wife and 2nd appellant a son who stated that he resides with his parents at the place. Thus the things could not be held to have been in the sole custody and control of the judgment debtors. Under the circumstances and therefore should have warranted a further inquiry.

The learned magistrate misdirected himself in treating the general notion that a motor vehicle registration book is not proof of ownership as one that does not allow exceptions as such a finding may lead to serious injustice as did in this case.

The relief they prayed for was as follows:

“That the appeal be and is hereby allowed with costs.

The decision of the court a quo is set aside and the matter is remitted back to the court a quo 	for an oral hearing.”

The appeal was heard on 29 June, 2017 and judgment was reserved. Having considered the submissions by all the parties to the appeal, we hereby proceed to give our determination.

Regarding ground one of appeal, the appellants said that the magistrate erred in finding that the property subject to the interpleader proceedings was specially executable yet it was already brought to his attention that the applicant therein (4th respondent) had already disposed of the property before the order was made.

According to the record of proceedings, at p 17 the appellants were summoned to appear on 5 August 2015 to a hearing of the interpleader proceedings of whether the attached goods were owned by the claimant or by the judgment debtor. On p 14, we have what appear to be the record of proceedings where claimant’s counsel spoke, and then the judgment creditor responded and then there is a court order. There is no allegation, on that p 14 that the property had already been disposed of. If such allegation was made on the day of the proceedings, it ought to have been recorded. If it was stated and was not recorded, then the record was incomplete and the parties should have raised this issue. The date is not indicated on p 14, but according to the Notice of Appeal, the decision was made on 3 March, 2016. That is the same date of the proceedings. However, reasons for judgment  were furnished much later. The appellants say they got them on 30 March, 2016. On p 12 of the record, in the reasons for judgment, the magistrate alluded to the allegation that the property had already been disposed of. It is not clear where and when he received this allegation. The allegation itself lacks particularity on when the property was supposed to have been sold. It is just a bare assertion, without any dated or proof. It is clear that in para 2 of p 12, the magistrate did not believe the allegation. He further stated that such an allegation required a separate application and such application was not before him.

Suffice it to say that the appeal court cannot go beyond what is contained in the record of proceedings. From what was placed before us, the premature sale of the goods under interpleader was not raised during the proceedings on 3 March 2016, or in any document forming part of the record thereafter. It is therefore not possible for the court to consider an issue which is not part of the record and is referred to a in passing in a ruling given thirty days after the proceedings.

The magistrate’s error lies in referring to the issue which he correctly said was not before him. That error on his part, however, does not validate the allegation. Ground 1 of appeal therefore has no merit.

Ground 2 criticised the magistrate for not referring the matter to trial to have the claimant’s evidence tested under cross-examination. The basis of the court a quo’s decision is contained from p 9 to the first paragraph of p 12. It is in those pages that the learned magistrate dismissed the claims by mother and son. In the second from last para of p 9, the learned magistrate referred to order 27 (5) of the Magistrate’s Court Rules. He said where there is a dispute of facts which renders it impossible to make a determination without the leading of evidence and cross-examination, then Order 27 Rule 5 allowed for the matter to be referred to trial. So he was aware of that provision. The fact that he did not apply it means he did not see any dispute of facts which made it impossible to make a determination. And the paragraphs which follow show that the magistrate was convinced that both claimants failed to prove ownership of the items claimed and that they were simply colluding with the judgment debtor. So how could he refer the issue to trial when he clearly disbelieved the appellants’ claims and considered them improbable? There is therefore no merit in ground 2 of the appeal. Order 27 Rule 5 does not force the trial court to refer the matter to a trial or oral hearing; it gives him the discretion to do so if he considered it necessary in the circumstances of the case before him. He did not think there was need for a trial of the matter and he cannot be faulted for coming to that conclusion, given the circumstances of this case.

Ground 3 of the appeal has no merit. The decisive issue for the court as given in the last paragraph of p 9 was to identify whether indeed the property attached by the Messenger of Court is genuinely owned by the claimant. If the second appellant had given satisfactory proof, for example producing documents with serial numbers of the television set or other identifying features of the television set and microwave, the property would have been spared, despite being found on the judgment debtor’s premises. Therefore his case collapsed on account of his failure to prove ownership, not because of the address. The address was relevant simply because were property was found at the judgment debtor’s address and there is a rebuttable legal presumption that a debtor owns what is found at their address. The second appellant failed to rebut that presumption by nit providing sufficient particulars of the TV set and microwave. No further inquiry was required given the magistrate’s finding that the claimant failed to prove ownership.

Ground 4 also has no merit. On the motor vehicles, the trial court relied on other issues besides the registration book. On p 10, the court a quo gave detailed reasons why it could not accept the first appellant’s claims to the motor vehicles. Regarding the Mercedes Benz, he said; on p 10 of the record, “The last road license issued for it expired in December, 2015. There was nothing to show who the registered owner was. That page was not availed to the court.”

Regarding the Nissan Hardbody, he said, on p 11,

“Whilst that document is indeed for a Nissan Hardbody and the name of the owner is 	Rumbidzai Chirume, the document tendered does not even contain the vehicle registration 	number. Like the document tendered in respect of the Mercedes Benz it is a one page 	document. It reflects that the said vehicle was registered in Zimbabwe in1998 yet there is not 	a single stamp to show that a road licence was ever issued. The first claimant does not even 	care to explain how it is that such vehicle is in her sister-in law’s name yet she claims to be 	the owner of it.”

The above, quotations from the learned magistrate’s judgment show that the court a quo looked at the totality of the evidence before it, including that from the registration book. And no injustice resulted from the conclusion that there was insufficient proof of the first appellant’s claim to the two motor vehicles.

There being no merit in the appeal it is ordered that the appeal be and is hereby dismissed, with costs.

CHITAKUNYE J agrees ………………………..

Ngarava, Moyo & Chikono, appellant’s legal practitioners

Guwiriro & Associates, 1st respondent’s legal practitioners

Chinawa Law Chambers, 2nd & 3rd respondent’s legal practitioners