The Deputy Sheriff Marondera v Esther R Hombarume & 6 Ors

### Preamble
1
HH 521-18
HC 6571/14
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THE DEPUTY SHERIFF MARONDERA

versus

ESTHER R HOMBARUME

and

VIOLET MUNJARANJI

and

EPHISON SIMBARASHE NDAHWI

and

SHAKI N MUSEVE

and

NOMUHLE BANGANI

and

COOPER SMIT

and

TIANZE TOBACCO COMPANY (PVT) LTD

and

LAWRENCE KATSIRU

HIGH COURT OF ZIMBABWE

CHITAPI J

HARARE, 27 March 2018 and 12 September, 2018

Interpleader Application

N.T Tsarwa, for the applicant

P. Kufazvineyi, for the applicants

L.T Mudziwepasi, for the Judgment Creditor

CHITAPI J:  In this application, the applicant attached in execution certain movable goods listed in annexure B to the application. The goods were attached for execution to satisfy a judgment of this court in the case Tian Ze Tobacco Company (Pvt) Ltd v Lawrence Katsiru Case No. HC 2100/14. The two parties are the judgment creditor and debtor respectively. In terms thereof the judgment creditor caused the issue of a writ of execution to recover an amount in excess of $224 003-16 and execution costs.

The applicant in executing on the writ proceeded to the judgment debtor’s farm called Cambridge Farm in Marondera and attached a number of vehicles and machinery on 24 June, 2014. Following the attachment, the applicant received claims to the property by the claimants. This development culminated in the applicant filing this interpleader application on 4 August, 2014. The applicant wishes that the court determines the validity of the claims made his interest being the recovery of his costs. The applicant’s legal practitioner had no submissions other than to abide by his papers whilst emphasising that he does not collude with any of the claimants.

Interpleader proceedings are very common in that following an attachment of property to satisfy a judgment of the court, the Sheriff or his deputy receives claims from third parties alleging ownership of attached property and seeking its removal from attachment arguing that they are not party to the proceedings. In the fluid, lucid and didactic – judgment in The Sheriff of the High Court v Munyaradzi Tutini Majoni & 3 Ors HH 689/15 Mafusire J explained what interpleader proceedings entail, the incidence of proof and the court’s approach. I embrace what the learned judge indicated therein and note in particular that the claimant bears the onus to prove ownership of the goods which the claimant claims. I would add that the onus is not limited to proving ownership as such. The position should be stated as that the claimant bears the onus to prove on a balance of probabilities that the attached goods whose removal from execution is sought are not legally susceptible to execution. This could by reason of ownership by the claimant or such other good and legally recognizable reason why the attached goods should not be executed upon.

In casu, I will briefly detail the individual claimant’s claims and the facts advanced to support the exclusion and release from attachment of property as claimed.

1st Claimant – Esther Hombarume

She states in her affidavit that she is the wife of the claimant who is the owner of a motor vehicle registration AAR 5608, a Honda Accord attached by the applicant on 24 June, 2014. She claims to be the daughter of the judgment debtor and that she left the vehicle at her father’s farm for safekeeping as she resides at Little Zim Farm. She attached the vehicle registration book “as proof of ownership of the vehicle.” She claimed to have purchased the vehicle from Japan in 2005.

The judgment creditor opposes the claim on several grounds. It raises the issue of the claimant’s locus standi in that none of her property was attached and that she cannot file a claim on behalf of another. I note that the vehicle registration book is in the name of Tichaona Hombarume. The claimant states that the registered owner is her husband. There has been no proof of such relationship presented to court and worse still there is no reason given as to why the registered owner did not personally lay claim to the vehicle.

Whilst the claimant purports to have purchased the vehicle from Japan, no documents or other proof of purchase have been placed before the court. Such documentation or acceptable proof of purchase would have constituted the best evidence of ownership because a vehicle registration does not constitute proof of legal ownership. The registration book itself is endorsed that the registration book is not proof of legal ownership.

The claimant did not state as to why it was necessary to have the vehicle kept at the judgment’s debtor’s farm other than to state that it was for safe keeping in her absence. She did not state when she was absent, from where and where she was.

This claimant’s claim is made up of bold allegations which do not amount to acceptable proof of ownership nor do they provide other legally cognizable reason to justify the release of the vehicle from attachment. The claim must fail.

Second claimant’s claim: Violet Munjaranji

The judgment creditor is not opposed to the claim. She claims the release of an Isuzu KB 300 registration no. ADF 8941. The vehicle should be released if this has not already been done.

Third claimant: Ephison Simbarashe Ndawi

He lays claim to a Mitsubishi Pajero motor vehicle registration no. AAT 4597. He claims that the judgment debtor was his “social and religious associate.” He left the vehicle for safekeeping at the judgment debtor’s farm whilst he looked for prospective purchasers for the vehicle.

The judgment creditor argued that the judgment debtor was not a security company where cars could be lodged for safekeeping. It argued that the submission that the vehicle was on sale was unlikely. The judgment creditor questioned why the vehicle was not at the address shown on the registration book. It surmised that the vehicle had probably been sold to the judgment debtor who did not change ownership.

In my view, this claimant’s claim is not farfetched. The claimant did not just attach the registration book as proof of legal ownership. He attached the official motor vehicle extract from Central Vehicle Registry. It gives details of the importation of the vehicle by the claimant and proof of payment of import duty and police clearances. In such a situation, the onus to prove that the third claimant is not the owner of the vehicle must shift to the judgment creditor. Where the claimant places before the court acceptable evidence of ownership or of some other legally recognisable ground warranting release of the attached property from execution, the onus shift on the party who impugns such evidence to controvert it.

In respect of the third claimant’s claim and evidence placed before the court, the judgment creditor has not placed contrary evidence. The third claimant’s claim must succeed.

Fourth claimant: Shaki Museve; fifth claimant Nomuhle Bangani and sixth claimant: Cooper Smit

I deal with the three claims as combined because the three make unsubstantiated claims to attached property whose release they claim. In the case of the fourth claimant he claims to be owner of a case tractor which was attached. He states that the judgment debtor is a neighbour with whom they assist each other with farming equipment. In the same affidavit he refers to a motor vehicle described in “Annexure D” described as the official registration book of the same. The said annexure D was however not attached. The affidavit is disjointed in content. It refers to a tractor, then to tractors and a motor vehicle. There is no interactive drafting of his depositions. One cannot tell exactly what he claims should not be executed upon nor the basis thereof. In his submissions, the legal practitioner for third claimant said that para 3 of the claimant’s affidavit was done in error. The para refers to a motor vehicle. It is difficult to understand how a deposition made in an affidavit can be said to have been done in error. Be that as it may, the fourth claimant’s bold assertions to ownership of the tractor which he did not fully detail and trailers again not detailed is insufficient to prove any cognizable legal ground to interfer and stop the attachment and execution.

As regards the fifth claimant she or he makes a bold assertion that he or she is the owner of a 24 Disk (sic) harrow which was attached. The disk harrow is said to have been in the custody of the judgment debtor for use in his farming activities because the two are neighbours. No further details of the claim to ownership are given nor does the fifth claimant even indicate how he or she is a neighbour.

The position of the sixth claimant is the same as with the fifth claimant. He makes bold assertions that he is the owner of 2 steel trailers which were attached. He claims to be a neighbour of the judgment debtor and that the two assist each other with farming equipment. No evidence of ownership of the trailers was provided. The sixth claimant did not even give details of how he is a neighbour or when the trailers were taken delivery of by the judgment debtor.

In cases where claimants make bold assertions to ownership of attached property, no dispute of fact can be said to arise such as would require resolution. When a party simply opens his or her mouth to say “I am the owner of that item of property” without placing any evidence tending to prove ownership, even a prima facie case of ownership cannot be said to have been proved. Courts decide cases on evidence placed before them. Bold assertions do not amount to the type of evidence on which a case can be determined because a bold assertion can be made by anyone and it remains that.

The claims by the fourth, fifth and 6th claimants were not proven. I cannot just pen off this judgment without commenting on the ineptitude of the claimants legal practitioner. He drafted affidavits of claimants which are similar in wording to each other except for a few issues like the names of the claimants and the property attached. The legal practitioner should have done better by advising the claimants to provide acceptable and sufficient evidence to back up their claims. This they could have done by producing documents of purchase of the claimed property. They could also have filed supporting affidavits of evidence corroborative of their claims. The legal practitioner should understand that possession of a movable good raises a presumption that the possessor is the owner. The claimant cannot rebut the presumption through a mere say so claiming ownership without anything further to buttress the assertion. The impression I gathered was that the legal practitioner for the claimants in making bold assertions of ownership by his clients was himself not mindful of the incidence of onus in such applications  or if he was, then he had no choice because the claimants must have lied to him as they clearly had no evidence to back up their claims.

In the result the application is disposed of as follows:

The claims of the 2nd and 3rd claimants are upheld and the applicant is ordered to remove from attachment and execution motor vehicles Reg No. ADF 8941 (Isuzu BK300) and Reg No. AAT 4597 (Mitsubishi Pajero).

The claims of the 1st, 4th, 5th and 6th claimants are hereby dismissed with costs.

Tadiwa & Associates, applicant’s legal practitioners

Munangati & Associates, claimants’ legal practitioners

Muvirimi Law Chambers, judgment creditors’ legal practitioners