The Sheriff of Zimbabwe and Prince Chakarurama and Pridar Construction (Private) Limited versus Westgarden Enterprises (Private) Limited

### Preamble
1
HH 188-21
HC 2401/20
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THE SHERIFF OF ZIMBABWE

and

PRINCE CHAKARURAMA

and

PRIDAR CONSTRUCTION (PRIVATE) LIMITED

versus

WESTGARDEN ENTRPRISES (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

CHAREWA J

HARARE, 26 March & 28 April 2021

Opposed Application – Interpleader

F Mabungu, for the applicant

N Masaiti, for the claimants

T Nyamucherera, for the judgment creditor

CHAREWA J: This is an interpleader application whereby the claimants claim ownership of property attached in execution by the applicant at the instance of the judgment creditor.

Background

The judgment creditor obtained judgment in Case Number HC 880/18 against Mutual Construction (Private) Limited (the judgment debtor). It then instructed applicant to execute at the judgment debtor’s place of business at 10163 Tynwald South, Harare. On 17 January 2020, the applicant attached various items of property, among them a Mercedes Benz C180 vehicle registration number AEN 2085, a home-made truck registration number AAF6152 and a Kipor generator. The claimants instituted interpleader proceedings claiming ownership of these three items.

Parties’ submissions

The first claimant claims that the Mercedes Benz vehicle belongs to him and not to the judgment debtor. In proof thereof, he attached to his affidavit of claim, and incorporated the same by reference, to his opposing affidavit, a copy of the registration book issued in his name on 10 November 2017, an agreement of sale dated 14 July 2011 showing that he bought the vehicle from City Motors for $8 500 and an invoice dated 14 July 2011 endorsed with a part payment of $7 000. In his opposing affidavit, he explains that the vehicle was found at the judgment debtor’s address because his offices are also located thereat.

The second claimant, on its part, claims that the home-made truck and Kipor generator belong to it. In support thereof, it attached to its affidavit of claim, and incorporated the same to its opposing affidavit by reference, the registration book for the truck in the name of Mark Mbayiwa and an agreement of sale for the truck, entered between itself and Mark Mbayiwa, on 27 June 2018 for the amount of$22 000.  It further attached an invoice, dated 9 December 2017, in its name, for a Kipor 50 horse power generator. In its opposing affidavit, it avers that the items were found at the judgment debtor’s premises because that is also where its offices are located.

The claimants also submit that other would be claimants signed as witnesses to claimants’ agreements of sale is irrelevant as they are only witnesses, and in any case this merely suggests that they were at or shared the same premises, rather than collusion. Neither is it relevant that claimants are not claiming office furniture as that only indicates that their furniture was not attached. The claimants therefore aver that the only relevant issue for the court is whether sufficient evidence has been produced to show that claimants owned the property attached.

The judgment creditor opposes the claimants’ claims on the basis that they have not sufficiently rebutted the presumption of ownership by the judgment debtor which arises from the fact that the property was found at the judgment debtor’s place of business. In addition, the judgment creditor avers that claimants did not explain why the property was in fact found at the judgment debtor’s business premises by submitting some documentary evidence to that effect.

Moreover, the judgment creditor submits that the claimants did not provide receipts to prove their purchase/ownership of the attached property in circumstances where the agreements of sale were questionable. Further, it alleges collusion between the claimants and the judgment debtor on the basis that the letter of claim lists the most valuable items attached as belonging to third parties, and also because, if the claimants had offices at the same premises why were they not claiming that their office furniture was among the office items attached.

In addition, the judgment creditor submits that the fact that no resolutions authorising the acquisition of the claimed property have been filed by second claimant given that a company operates through resolutions, or that there is no proof of any exchange of money, or that the invoice relied on carries an obsolete phone number, or that one Bicycle who was alleged to own some of the attached property signed on the agreements of sale, suggest that the claimants and judgment debtor are one and the same.

Consequently, the judgment creditor avers that the claimants have not discharged the onus to prove ownership and their claims must thus be dismissed.

The law

It is trite that a claimant has the onus to prove that he/it owns the movable property claimed. It is also trite that an invoice without a show of exchange of money is not adequate proof of ownership. Further, it is trite that possession by the judgment debtor of the claimed property raises a presumption of ownership which a claimant must discharge. Given that the address at which execution was carried out was the judgment debtor’s domicilium citandi et executandi, the law deems it to have been in possession of attached property and presumes it to be the owner. The onus is on the claimants to prove by way of receipts and other documents that the property is in fact theirs. These principles are sufficiently discussed by MAVHANGIRA JA in Joyce Muzanenhamo v Fishtown Investments (Pvt) Ltd.

In addition, where movable property consists of vehicles, the registration book is not sufficient proof of ownership without other extrinsic evidence. A claimant who shares premises with a judgment debtor cannot rely on possession for his or her claim of ownership. He/it must produce clear and conclusive proof of ownership of the attached vehicle to succeed.

The Issue

I must agree with the claimant’s counsel that the issue before me is whether sufficient evidence has been produced to discharge the onus on the claimants to prove ownership.

Analysis

With respect to the first claimant, I do not consider that the judgment creditor seriously disputes that he has discharged the onus upon him to show that the Mercedes Benz vehicle, registration number AEN 2085 belongs to the claimant. In fact, in his oral submissions with respect to the second claimant’s claim, the judgment creditor’s counsel implicitly concedes that the evidence of first claimant’s claim to ownership can be easily followed: that he bought the vehicle from City Motors for $8 500, paid $7000 as endorsed on the invoice and had the vehicle registered in his name. The presumption of ownership by the judgment debtor raised by the fact that the vehicle was found at the judgment debtor’s domicilium is thus sufficiently discharged, in my view, by the explanation that claimant also shares the same premises, the existence of a sale agreement, the invoice endorsed with proof of payment and the registration book which is in claimant’s name.

That the vehicle may have been maroon at the time claimant bought it in 2011 and is now white in terms of the registration book is neither here nor there. The colour is an issue of a coat of paint which can be changed at the whim of an owner. It is for this reason that vehicles are identified by their registration numbers and/or chassis and engine numbers which are not subject to change on mere preference of an owner. The judgment creditor has not put the vehicle’s registration number and/or chassis and engine numbers in issue.

Neither is it of any moment, in my view, that the agreement and other documentation pertaining to the sale of the vehicle to first claimant do not disclose that City Motors owned the vehicle. The registration book shows that the motor vehicle was imported into Zimbabwe from the United Kingdom in 2008 and was sold to claimant in 2011 and registered to him in 2017. The Court takes judicial notice that vehicles imported for sale through car sales companies are not as a rule registered into the name of the car sales company, but to the person who buys from the car sales. And as remarked in other judgments, parties do not normally expeditiously register vehicles into their names, which is one of the reasons why a registration book is not acceptable as proof of ownership.

Given the foregoing, I am sufficiently convinced, on a balance of probabilities, that first claimant has proved his ownership of the vehicle. In view of the above facts and conclusions, that first claimant offers no extrinsic evidence that he shares business premises with the judgment debtor is not material in determining his ownership of the Mercedes Benz vehicle.

The situation is certainly different with regards to the second claimant’s claims to ownership of the home-made trailer and Kipor generator. Firstly, with regard to the Kipor generator, second claimant’s only evidence to discharge the presumption raised by the generator being found at the judgment debtor’s domicilium is an invoice which does not show that it ever paid for the generator. On the principles approved in Juliana Sabarauta (supra), I cannot find that the second claimant has discharged the onus upon it to prove its ownership of the generator.

With regard to the home-made trailer, there exists an agreement of sale which suggests that second claimant bought it from one Mark Mbayiwa. However, the trailer is still registered to the said Mark Mbayiwa. Granted, such registration is not of itself proof of Mark Mbayiwa’s ownership. The real challenge is that there is no proof of any payment by second claimant to Mark Mbayiwa, of the purchase price of $22 000. It beggars belief that claimant could not even obtain an affidavit from the purported seller to confirm the sale and that he received payment. Clearly, in line with Juliana Sabarauta (supra), and quite apart from the challenges noted by the judgment creditor regarding the agreement of sale itself, that it was apparently signed by D Sakukutukwa in his personal account, second claimant has not discharged the onus upon it to prove ownership of the trailer.

I cannot, therefore, find any merit in the second claimant’s claims.

Having reached this conclusion on the evidence before me vis-à-vis the legal requirements to prove ownership in interpleader proceedings, it is not necessary for me to deal with other periphery issues raised by the judgment creditor. Suffice it to say that the issue of old telephone numbers could simply be a result of using old letter heads, and that parties who may have been potential claimants witnessed some of the documents could be a result of sharing premises rather than collusion.  Neither is it material that the Kipor generator is from a company which sells agricultural implements as generators are also used in agri-business. Nor is it material that potential claimants did not institute interpleader proceedings as they are at liberty to choose whether or not to litigate.

DISPOSITION

In the premises, it be and is hereby ordered that

The first claimant’s claim to the Mercedes Benz vehicle Registration Number AEN 2085 which was placed under attachment in execution of the judgment in HC 880/18 is hereby granted.

The second claimant’s claim to the Home Made Trailer registration number AAF 6152 and Kipor generator which was placed under attachment in execution of the judgment in HC 880/18 is hereby dismissed.

The moveable property attached in terms of Notice of Seizure and Attachment dated 17 January 2020 issued by applicant, being Mercedes Benz vehicle Registration Number AEN 2085 is hereby declared not executable.

The Judgment creditor shall pay the first claimant’s cost of suit on an attorney and client scale.

The second claimant shall pay the applicant’s and the judgment creditor’s costs of suit on an attorney and client scale.

Messrs Dube–Banda & Nzarayapenga, applicant’s legal practitioners

Messrs Saidi Law Firm, claimants’ legal practitioners

Messrs Lawman Law Chambers, judgment creditor’s legal practitioners