MAKONI
J: The applicant claims the return of
the movable property itemized in para a of the interim relief. The applicant
has failed to establish ownership of the five trucks and six as itemized.
There
was a concession that the applicant cannot establish ownership AAZ 977; Regarding
AAZ 9773 and AAZ 9718, the applicant produced what it termed a confirmatory
note from VID. The applicant submitted that the note is confirmation that VID
is holding on to the trucks and registration books for the motor vehicles.
Firstly
there is nothing on the confirmatory note to confirm that the applicant is the
owner. As was rightly pointed out by Mr Samkange,
anyone could have obtained that note.
Secondly
if the motor vehicle/trailers are at VID how can the court order the respondents
to return such motor vehicle to the applicant.
Regarding
517-766 N and 771-2439, the applicant produced registration books which
indicate that the motor vehicles belong to the third parties. Attempts were
made to suggest that the applicant purchased the trucks from the third parties.
The submissions where not persisted with when it was noted that the documents
produced in evidence did not relate to the motor vehicles in issue.
The
applicant therefore has no locus standi
to bring the present proceedings.
AUTHORITY TO DEPOSE TO THE FOUNDING
AFFIDAVIT
Mr
Silika swore that he is the applicant's director and has been authorized by the
applicant to depose to this affidavit. This was challenged by the respondents
through a supporting affidavit by Michael John Burns.
It
is settled in our law that once authority of a representative of a company is
challenged, the other party must prove that he has the requisite authority.
This is normally in the form of a board resolution authorizing the deponent to
institute proceedings and to swear to the affidavit See United
Associates (Pvt) Ltd v Estate Late Leonard Dabulamanzi Ncube & Ors HB 29/03. The
applicant has failed to furnish this court with proof that he had authority to
institute proceedings on behalf of the applicant. The fact that the issue is
before another court does not detract from the fact that before this court the
deponent has no authority. There is therefore
no application before me. The applicant's case also falls on that issue.
I
would agree with Mr Samkange that the
applicant is abusing court process. The respondents were unnecessarily dragged
to court when the applicant's papers were far from being in order. I will award
costs on the Law Society tariff.
In
my view once the applicant's case failed to pass the hurdle of locus standi, it will not be necessary
for me to determine as the other issues.
In
the result I make the following order:
“The
application is dismissed with costs on the Law Society tariff”.
Chikumbirike & Associates, applicant's legal practitioners
Venturas &
Samkange, 1st, 2nd and 3rd
respondents' legal practitioners