On 27 July 2010, the applicant instituted inter-pleader proceedings in Case No.HC5098/10 in which the applicant is cited as the claimant and the first to third respondents' are as in casu.

This matter is pending before this court.

The second respondent filed a supporting affidavit in which the second respondent alleges that the property listed in Annexure 'A' belongs to the applicant and not to the second respondent and that the first and third respondents have not respected the inter-pleader proceedings as they have continued to threaten to proceed with the seizure and sale of the goods belonging to the applicant.

The interim relief, or provisional order, sought by the applicant is premised on the grounds that proper inter-pleader proceedings have been filed in this court under Case No. HC5098/10. However, a perusal of the record in Case No. HC5098/10 clearly shows that the so-called inter-pleader proceedings filed by the applicant are so defective to such an extent that there are no valid inter-pleader proceedings pending before this court.

The applicant totally failed to comply with the provisions of Order 30 and specifically Rules 205A to Rule 208 which outline the procedure to be followed in instituting inter-pleader proceedings.

Counsel for the applicant conceded that she had no meaningful submissions to make in that regard.

I share the difficulty she had.

In my view, there is, therefore, no basis for this court to grant the provisional order in the absence of proper and valid inter pleader proceedings before this court. There are no such proceedings pending before this court. On that point alone the applicant's case cannot succeed....,. I accordingly make the following order –

1. The application is dismissed.

During the period extending from May 2009 to 19 January 2010, Boniface Tonhoma, the son of the first claimant, who was employed as a Bulk Bank Teller by Stanbic Bank in Bulawayo received various deposits from the customers of the bank and allegedly converted a total of $223,701= to his own use. He was arrested but was granted bail on 26 January 2010 pending his trial. He absconded shortly thereafter after reporting once to the police on 27 January 2010 and his whereabouts are unknown to the authorities.

During investigations, he had led the police to the recovery of the following property which he said was purchased using the money he had stolen from his employers:-

1 mini bus Mitsubishi registration number ABB 2885;

1 mini bus Coaster registration ABB 2884;

1 Isuzu bus registration number ABJ 6980;

1 Isuzu bus registration number ABJ 6972;

1 Ford Bantam registration number AAA 8778;

61 mattresses and 1 LG home theatre.

All the four buses were registered in the name of the first claimant within a short space of time. They were registered during the period 8 October 2009 and 5 January 2010. The two mini buses, registration numbers ABB 2884 and ABB 2885, were registered on 8 October 2009, while the two Isuzu buses, registration numbers ABJ 6972 and ABJ 6980, were registered on 30 December 2009 and 5 January 2010 respectively.

The Ford Bantam motor vehicle was allegedly bought by the second claimant from a company known as Professional Clearing (Pvt) Ltd of 6^th Floor Zimdef House, Fort Street, Bulawayo on 14 September 2009.

In an effort to recover its money, Stanbic Bank Zimbabwe Limited sued Boniface Tonhoma for the recovery of the US$223,701= he had stolen. Stanbic Bank Zimbabwe Limited obtained a default judgment in that sum with interest thereon a tempore morae from 19 January 2010 to date of payment plus costs of suit on an attorney and client scale.

A writ of execution was issued against the abovementioned movable property which the police had recovered following indications made by Boniface Tonhoma. The belief was that the property belonged to him.

It, however, turned out that the first claimant, Company White Space Sales (Private) Limited was claiming ownership of all the property except the Ford Bantam motor vehicle. It filed registration books for the vehicle it claimed to own. The two company's Directors are Boniface Tonhoma himself and his brother Clephas Tonhoma. Its' Principal Officer and Secretary is Boniface Tonhoma himself. The company exists on paper only.

The father of Boniface Albert Tonhoma claimed ownership of the Ford Bantam motor vehicle and filed an agreement of its sale reflecting the seller as Professional Clearing of 6^th Floor Zimdef House, Fort Street Bulawayo.

The Deputy Sheriff for Bulawayo filed this Interpleader Notice on 20 August 2010 but seems to have abandoned the mater as there was no appearance by her at the hearing. Her Interpleader Notice did not even have a draft order as required by the Rules of this Court - see Rule 227(3).

In the light of the documents filed of record, it would seem the vehicles belong to the company and Boniface Tonhoma's father. The property was registered into their names. Ex facie, it cannot be said that the property belongs to Boniface Tonhoma. It is a different proposition to say the property was bought using the money he stole from his employer which requires a separate investigation….,.

In the light of the foregoing, I do not consider this to be a proper matter for the relief of an Interpleader Notice and would dismiss it with costs being borne by the Bank as it was the one that encouraged the applicant to interplead by letter dated 25 June 2010.

In the discharge of his duties as Sheriff, the applicant placed under attachment certain items of property located at 162 The Chase, Mount Pleasant, Harare. This was in pursuance of a writ of execution issued by the judgment creditor in HC437/13 against Harare Kawasaki after he obtained judgment against that entity on 25 March 2013 in the sum of US$82,511=50.

All the goods placed under attachment in pursuance of the writ of execution have been claimed by the first claimant, who is a Director of the second claimant, an incorporation, as well as by the second claimant itself. This necessitated the institution of interpleader proceedings by the applicant in order to settle the conflicting claims given that the judgment creditor did not admit the claims made by the two claimants.

The background of the matter is that the judgment creditor entered into a written Consultancy Agreement with Harare Kawasaki, which was represented by the first claimant, on 12 November 2011 in terms of which he was engaged as a Sales Manager for a salary and commission, and was, inter alia, entitled to be paid “a share of 10% (ten percent) of net profit of Harare Kawasaki”.  The preamble to that Agreement reads:

“The following contract has been entered into by and between:

HARARE KAWASAKI

(represented by AW Mackintosh, Managing Director) of address:

162 The Chase

Mt Pleasant

Harare

(hereinafter referred to as 'The Company')

And

PUMULANI NCUBE

(represented by him), of address:

162 The Chase

Mt Pleasant

Harare

(hereinafter referred to as “The Consultant”)

Harare Kawasaki is a company incorporated in Zimbabwe, which undertakes Motorcycle sales, clothing and accessories for all aspects of motorcycling both for competition and leisure.”

In due course, the judgment creditor sued Harare Kawasaki under that Consultancy Agreement in case No. HC437/13 for payment of the sum of $82,511=50 aforesaid, due in terms of that Agreement. Judgment was granted in his favour on 25 March 2013. 

It is the execution of that judgment which has given rise to these inter-pleader proceedings.

The reason for an interpleader is to alert the warring parties, that, ownership of the attached property is being challenged. As an officer of the court, the second respondent should have acted professionally and impartially. The second respondent's failure to act properly no doubt resulted in actual prejudice to the applicant. The applicant has an inherent right to prove its claim on the attached property. The only way of proving this is when the second respondent avails that opportunity by following the correct procedure regarding interpleader proceedings. It is their right to be given a chance to prove their claim.

In the execution of his duties in pursuance of a Writ of Execution issued out of this court, the applicant placed under attachment certain items of property. This was in the matter involving Hope Tembo and Morayford Investments (Pvt) (Ltd) and Arther Mutasa HC8415/2011.

The property attached in execution was claimed by the claimant Heavy Equipment Power Parts. As the judgment creditor did not admit the claim, the applicant filed these interpleader proceedings in terms of Order 30 of the High Court Rules….,. It should be noted that the applicant is only a vehicle through which interpleader proceedings are brought to the court but has no interest in the matter at all. It is for that reason that in the application Rule 208 requires him to state in his founding affidavit that he “claims no interest in the subject matter in dispute other than for charges and costs.” For that reason, where only one party files opposition to the interpleader application, it is only that party which has an interest and accordingly the matter is, in essence, unopposed. It should be set down on the unopposed roll.

To my mind it is undesirable and a complete waste of the court's time to place such matters on the opposed roll. Both the Deputy Sheriff and the party who files opposition (be it the claimant or the judgment creditor) are unduly detained having to wait several months for a set down on the opposed roll when the matter should be disposed of on the unopposed roll. This court, which is currently inundated with litigation and has a huge backlog should also not be detained by such matters. Its time should be put to better use instead of being made to sift through so many of these unopposed interpleader applications.

Legal practitioners, and, indeed, the Registrar's office are therefore advised to take note and direct such matters to the appropriate court.

The court application was served upon the claimant and the judgment creditor on 21 March 2012.

Only the judgment creditor filed opposition but the claimant did not do so. If it intended to oppose the matter it was required by Rule 232 to file opposition and in terms of Rule 233(3) the claimant is barred and has no right of audience. Deputy Sheriff- Harare v Conview Energy (Pvt) Ltd & Anor HH250-12; Deputy Sheriff-Harare v Brownweel Marketing & Anor HH243-12.The authorities I have referred to make it clear that the matter is essentially unopposed as only the judgment creditor has an interest in the matter.

Accordingly, it is ordered that;-

1. The claimant's claim be and is hereby dismissed with costs on the scale of legal practitioner and client.

This was an application for an interpleader lodged by the Deputy Sherriff of Karoi against Edward Chigango & 55 others as first respondents and judgment creditors. Fresh Bakery, Karoi were second respondents and judgment debtors. David Govere was the third respondent and claimant.

The order I granted in this matter on 1 November was as follows:

“1. The application by the Deputy Sheriff Karoi to amend the citation of David Govere who is already duly authorised to represent Noxon Investments, as Director, with the citation of Noxon Investments (Pvt) Ltd, as 3^rd Respondents is granted.

2. The claimant's claim, Noxon Investments (Pvt) Ltd to the goods placed under attachment in execution of Judgment Case No.HC6273/10 is hereby dismissed.

3. The goods set out in the Notice of Seizure and Attachment, dated 26 October 2011, issued by Applicant are declared executable.

4. The claimant is ordered to pay the costs of the Judgement Creditor and Applicant.”

My reasons for the above order were as follows: …,.

With regards to dismissing the third respondent's claim to the goods, i.e. Noxon Investments (Pvt) Ltd, once the application was granted, the evidence produced in the papers filed of record, failed, in my view, to support the claim on a balance of probabilities. The third respondent asserted its claim on the strength of an Agreement of Sale of both business and assets, which it averred supported its stance that it had been sold the Bakery and all its equipment by Aroma Bakeries in 2000. The Agreement attached detailed the effective date of the sale as being 1 July 2000. The property described 15 Fred Jameson Road, Karoi, the address of the second respondent - the judgement debtor.

The first respondents challenged the authenticity of this claim through an attachment of a judgment of this court passed by CHITAKUNYE J in HC5863/05 on 9 September 2009. This judgement, involving the very same premises i.e. Stand No.15 Karoi Township reveals that the owners of the property in that case were, in fact, Karoi Cash Bakery. They were suing Aroma Bakeries to whom they had leased the property for a nine year period, starting in February 1997, for breach of lease in that they had sublet the premises to Harambe Holdings. The premises had not been kept in good condition and the application was against both Aroma bakeries and Harambe Holdings to repair the premises to the condition they were before 1997. If Aroma Bakeries was being sued as lessee well after 2000, in terms of a lease agreement operational over a nine year period entered into in 1997, it is hard to see how it could have been the owner of the premises in 2000 when it is alleged to have sold the premises to Noxon Investments (Pvt) Ltd.

As such, the first respondent's claim that the Sale Agreement may not have been authentic seemed to have merit in light of this judgement.

This is an appeal against the whole judgment of the High Court in which the court dismissed the appellant's inter-pleader claim to goods attached by the fourth respondent on the first respondents' instructions.

BACKGROUND

On 1 September 2010, the first respondent, as the Seller, on the one hand and the second respondent, as the Purchaser, represented by the third respondent, on the other, entered into an Asset Purchase Agreement. In the Agreement, the Purchaser's domicilium citandi et executandi (domicilium) was given as 52 Eastern Drive, Greendale, Harare. Sometime in 2011, the first respondent instituted proceedings in the High Court against the second and third respondents for payment of US$38,200=. The claim arose from issues relating to the second and third respondent's performance of obligations due by one or other of them in terms of the Agreement.

In accordance with the domicilium citandi et executandi given in the Agreement, summons was served at 52 Eastern Drive, Greendale, Harare.

Note may be taken at this juncture that the address has also, in some instances, been referred to as No. 52 Harare Drive. It is common cause that the two addresses refer to one and the same premises.

Pursuant to the service of summons at the given domicilium, the second and third respondents entered appearance to defend through their legal practitioners, Mtetwa & Nyambirai. Eventually, the first respondent obtained judgment in its favour against the said respondents after which a Writ of Execution and a Notice of Seizure and Attachment of property were issued. These were served and the listed property was attached at the same address on 20 May 2014.

Consequent upon such attachment, the appellant notified the fourth respondent of her claim to the property itemised in the Notice of Seizure and Attachment.

The appellant's and the first respondent's claims, being adverse and mutually exclusive, the fourth respondent, as he was bound to do, filed an Interpleader Notice with the High Court in terms of Order 30 of the High Court Rules, 1971.

THE PARTIES IN THE HIGH COURT

In the interpleader proceedings before the High Court, the fourth respondent before this court was, in accordance with Order 30, the applicant. The appellant was the claimant. The first respondent was the judgment creditor with the second and third respondents being the judgment debtors. The Asset Purchase Agreement between the first and second respondents describes the second respondent thus:

“CALENDFEB (PVT) LTD (Hereinafter referred to as the Purchaser represented by Bertha Muzanenhamo, Her being duly authorised to do so) with its office located at 52 Eastern Drive, Greendale Harare.” (sic)

It may also be noted that the appellant is the third respondent's mother.

THE APPELLANT (CLAIMANT)'S CASE BEFORE THE HIGH COURT

The appellant claimed that she is the owner of the movable property that was under judicial attachment. It was also her contention that whilst the third respondent was her married daughter who resided elsewhere and not at the said address, she had nothing to do with the second respondent. She also claimed that the property that was attached did not belong to the third respondent. She also claimed that she, in fact, owns the immovable property, No 52 Harare Drive, Greendale, Eastlea, the address at which the movable property was attached, by virtue of it having been left to her by her late husband. She attached to her affidavit, copies of invoices that she claimed to be proof that the attached property belonged to her. It was also her stance that it was, in any event, not necessary for her to prove ownership of the attached movable goods or of the immovable property. She relied on the proposition that possession of movable property raises a presumption of ownership, citing in support thereof, the case of Zanberg v Van Zyl 1910 AD 258. 

She thus sought an order granting her claim to the attached goods.

THE FIRST RESPONDENT (JUDGMENT CREDITOR)'S CASE BEFORE THE HIGH COURT

The first respondent, on the other hand, opposed the granting of the order sought by the appellant. It contended that at all material times the second and third respondents held themselves to be resident at the given address, and, as a consequence, all process, notices and correspondence were served or directed at that address. This explains why a Notice of Appearance to Defend was filed on their behalf after summons was served at 52 Harare Drive.

The respondent also opposed the granting of an order in favour of the appellant on the further ground that the appellant had failed to explain why the second and third respondents had used her address as their domicilium citandi et executandi and how this could have resulted in the now alleged “mistaken” attachment. It submitted that the appellant had also not proffered an alternative address or addresses for the second and third respondents.

Furthermore, it was argued that the document that the appellant claimed to be proof of her ownership of the attached property was only an invoice. It was not a receipt and was therefore not proof of purchase as it was not proof of payment. It was contended that had the document been a receipt, proof of an electronic transfer or a cheque, it might have sufficed as proof of payment for the goods and ownership of them. 

It was contended that the appellant failed to prove ownership.

The first respondent argued that the Interpleader claim appeared to have been made merely to frustrate the judgment of the High Court in HC395/11. It also contended that the appellant had no bona fide claim to the property as she failed to prove ownership of the attached goods as well as ownership of No. 52 Harare Drive. 

It thus sought the dismissal of the appellant's claim.

THE JUDGMENT OF THE HIGH COURT

The learned Judge a quo dismissed the appellant's claim. In summary, her reasons were the following.  She found that as the appellant's claim was based on her being resident at, as well as being the owner of the premises where the property was found, proof of ownership of the immovable property would have assisted the court especially as there was no real proof of ownership of the movables by the appellant. Such proof of title to the immovable property would have disposed of the matter as to who was the owner of the movable property. She found that proof of title to the immovable property was not furnished and that there were no meaningful receipts produced to support the appellant's claim of ownership of the movable property.

The learned Judge commented on the appellant's attitude as not showing a serious approach to the resolution of the dispute.

The learned Judge noted, in addition, that the appellant did not provide the address of the third respondent whom she said did not reside at the domicilium citandi et executandi. There was no proof of the appellant's allegation that the third respondent did not reside at No.52 Harare Drive, Greendale, Eastlea.

She found, in the result, that there was no basis on which she could find in the appellant's favour and dismissed the claim.

GROUNDS OF APPEAL TO THIS COURT

The appellant's grounds of appeal against the High Court judgment are stated in the following terms:

“1. The learned judge erred, as a question of law and fact in (not) placing any weight on (the) submission made in heads of argument prepared by the appellant's counsel to the effect that the question of title and ownership of the immovable property situate at 52 Harare Drive, Greendale was not relevant.

2. More fully, the court ignored that the contestation amongst the parties was whether or not the Appellant owned the goods that had been attached by the judgment creditor, the 1^st Respondent herein.

3. Further, the Court ignored the fact that apart from conjecture and speculation there was no evidence on the papers to counter the Appellant's averments that:-

(a) She resides on the property in question on her own;

(b) The movable property attached was her own;

(c) The judgment debtor did not reside at the property in question and resided elsewhere with her family.

4. Further, the court ignored the fact the Appellant had been in possession of the property, and, therefore, her title could only be defeated by proper evidence and not conjecture.” (sic)

The appellant's prayer is for the appeal to be allowed with costs and for the order of the court a quo to be set aside and substituted with an order upholding her claim.

APPELLANT'S CASE BEFORE THIS COURT

It was submitted in heads of argument filed on behalf of the appellant, which submissions were persisted with in oral argument, that the court a quo misdirected itself in the following manner;

(i) Firstly, in holding that proof of ownership of the immovable property was relevant to the determination of the dispute.

(ii) Secondly, in finding that the appellant had refused to provide proof of ownership of the same.

It was submitted that by the production of the invoice, the appellant had proved ownership of “the substantial items that were covered by the attachment.” It was further argued that as the issue of ownership of the immovable property had not been put in issue, no obligation had arisen on the part of the appellant to prove the same. The contention was that the fact that the third respondent may have used her mother's residence as domicilium did not make her the owner of the appellant's immovable property. Thus, the first respondent had no right to cause the attachment of the appellant's property.

In his oral submissions, counsel for the appellant said that the court a quo misdirected itself in taking domicilium citandi et executandi to mean the address of residence.

In answer to a question posed to him by the court, counsel for the appellant conceded that there was no connection between the property that was attached and the invoice that was produced by the appellant in the proceedings in the court a quo. He then submitted that the judge in the court a quo could have exercised her discretion and referred to trial any matter on which she felt that there was no clarity.

He, however, prayed for the appeal to be allowed and for the decision of the court a quo to be set aside and substituted with an order in favour of the claimant (appellant in this matter) with costs.

FIRST RESPONDENT (JUDGMENT CREDITOR)'S CASE BEFORE THIS COURT

The first respondent's stance, in both its heads of argument and in oral argument, was that the court a quo was correct in its finding that the appellant had failed to discharge the onus of proving that the movable property attached by the fourth respondent belonged to her. Furthermore, that the court a quo had also justifiably found that the appellant failed to prove that the second and third respondents did not reside at and operate from the premises whose address they had provided as their domicilium citandi et executandi.

Counsel for the first respondent drew the court's attention to and highlighted the presumption that possession implies ownership as being applicable to the facts of the case.

She cited Phillips N.O. v National Foods Ltd & Anor 1996 (2) ZLR 532 (H) where CHATIKOBO J cited with approval the following dictum of DE VILLIERS CJ in Zandberg v Van Zyl 1910 AD 258…,:

“…., possession of a movable raises a presumption of ownership…,.”

She submitted that the second and third respondents presented their address as 52 Eastern Drive, Greendale, Eastlea, and that, consequently, that was the address at which summons was served resulting in the filing of a Notice of Appearance to Defend. Subsequently, the writ of execution was also served at the same address. She submitted that as the property was attached at the given address, it was attached whilst in the possession of the second and third respondents.

The first respondent's contention is that notwithstanding the manner in which the grounds of appeal have been couched, the appeal is, in fact, an appeal against findings of fact made by the court a quo. It contends that there was no misdirection on the part of the court a quo in making the findings of fact as the appellant failed to discharge the onus of proving ownership of either the movable or the immovable property. 

It urged the court to dismiss the appeal and uphold the decision of the court a quo.

THE ISSUE FOR DETERMINATION ON APPEAL

The issue for the Court to determine is whether the appellant established that the property that was attached by the fourth respondent belonged to her.

That question arises because of the evidence that the premises were in fact used as offices of the second respondent which entered into an agreement with the first respondent (the judgment creditor). In terms of the Agreement, the second respondent chose the said premises as its domicilium citandi et executandi.  As a result, the said address was the first port of call for the Sheriff - who was not directed to any other place. Significantly, and in addition, summons commencing action in the first respondent's claim had been served at the same address. Such service resulted in the entry of appearance to defend by the second respondent.

It is clear that from the time the summons was served to the time the property was attached, the affairs of the second respondent were being conducted from that address. Insofar as the relationship of the judgment creditor and the judgment debtor is concerned, the attached property was in the possession of the second respondent as that was its chosen address for service of any court process relating to any dispute arising from the interpretation and application of the Agreement.

The appellant's failure to prove her ownership of both the movable and the immovable property in the proceedings in the court a quo resulted in the dismissal of her claim to the attached property.

In so far as the relationship between the first and the second respondents is concerned, when it is viewed against the backdrop of the given address being the second respondent's domicilium, it was for the appellant to prove ownership of the property that was attached at that address. 

The onus was on her.

The law is clear on this point that a person who is in possession of a movable thing is presumed to be the owner of it. It is also a settled principle that where movable property is attached whilst in the possession of the judgment debtor at the time of the attachment, the onus of proving ownership rests on the claimant. 

See Bruce N.O. v Josiah Parkes & Sons (Rhodesia) Limited & Another 1971 (1) RLR 154.

The property in casu was attached whilst at the judgment debtor's address and therefore in its possession. Thus, the principle that counsel for the appellant cited from the case of Deputy Sheriff Marondera v Traverse Investments (Pvt) Ltd & Another HH11-03 was not offended against by the court a quo's placing the onus on the appellant, and, subsequently, finding that on the evidence placed before it, she had failed to discharge the onus. Counsel for the appellant quoted MATIKA J who stated therein:

“Mr. Biti correctly submitted that the onus of proving that the goods which were in possession of the judgment debtor at the time of attachment is on the first Claimant. The first Claimant must discharge the said onus on a balance of probabilities.”

In casu, the appellant failed to prove ownership of the property.

She did not produce any receipts that pertained directly to the attached property. The invoice related to only three items the nature of which suggests that they could not have been bought for domestic use, being very high end furniture. The first item on the invoice, a Blush marble glass table is not linked to the attached property. The second item, described as Annabelle black leather sofa with cushions, is also not linked to the attached property. While there is a six piece sofa on the list of property that was attached, the court cannot infer from that alone that it is the Annabelle that is referred to in the list of attached property. The same position pertains to what is described as “Essex deluxe sofa.” There is also no connection to the attached property.

The invoice was, in any event, not produced to prove ownership of movables but to prove her residence at the property, yet proof of residence would not suffice because it was possible for the three, the appellant, the second, and third respondents, to all live there. They all could also be tenants at the premises.

Even if the appellant had been found to have been the owner of the immovable property, there was also the possibility that she could have allowed her daughter and the company to operate from the premises. The appellant's statement that she had allowed the third respondent to use her address for purposes of service of documents only does not alter the fact that the given address was in fact the third respondent's domicilium citandi et executandi….,.

In addition, the Deputy Sheriff was not, at any stage, pointed to any other address.

The attached goods were thus found and attached at the second respondent's address and therefore in its possession. The execution of the writ was based on the acceptance that the premises belonged to the second respondent. It is on this basis that the onus fell on the appellant to prove her claimed ownership of the premises.

She failed to discharge the onus.

This is in accordance with what the court stated in Deputy Sheriff, Marondera v Traverse Investments (Pvt) Ltd & Anor HH11-03. In that light, the statement by MATIKA J, quoted earlier in this judgment, was not violated.

Viewed from another angle, it appears that the appellant's claim that she only allowed the third respondent to use her address for purposes of service of documents and notices only does not bear scrutiny. There is no explanation why the second and third respondents, who had previously actively defended the first respondent's claim, suddenly became dormant, invisible and inactive at the crucial stage of execution; that also being the stage when the third respondent's mother, the appellant, suddenly sprung to action to claim ownership of the attached property. She had allowed the second and third respondents the right to use the premises. She also did not call the daughter to confirm the alleged mistaken or wrongful attachment of the property.

In the circumstances, the court a quo cannot be faulted for finding against the appellant as it did. The appeal has no merit.

It is accordingly ordered as follows:

The appeal is dismissed with costs.

The judgment creditor is Kreamorn Investments (Pvt) Ltd. On 5 March 2013, the judgment creditor obtained judgment by consent against the judgment debtors and three others for US$57,579=22 in case No. HC12609/12. Pursuant to that judgment, the judgment creditor, through the applicant, attached Stand No.4716 Prospect Township, also known as No.4716 Mainway Meadows, Prospect, Waterfalls.

The property awaits execution.

The first and second claimants wrote to the applicant, alleging that Stand No.4716 Mainway Meadows, Prospect, Waterfalls was wrongly attached because it did not belong to the judgment debtors.

On 18 February 2014, the applicant instituted inter-pleader proceedings in view of the conflicting claims inviting all three parties to file their claims.

On 28 February 2014, the first and second claimants filed opposing papers, giving their reasons why they contended that Stand No.4716 Mainway Meadows, Prospect, Waterfalls was wrongly attached. In paragraphs 7,8,9,10,11,16,17,18,19, 22,23 and 24 of their opposing affidavit, the claimants argued that the attachment was wrong because the judgment debtors did not obtain the first claimant's consent to encumber Stand No.4716 Mainway Meadows, Prospect, Waterfalls before they tendered it in the Consent Order of 5 March 2013.

The Consent Order of 5 March 2013 read as follows:

“1. The defendants shall jointly and severally, the one paying the other to be absolved, pay the plaintiff the sum of US$57,579=22.

2. The defendants shall pay the amount in 1 above as follows:

2.1. US$10,000= on or before 30 March 2013;

2.2. US$20,000= on or before 30 April 2013;

2.3. US$14,000= on or before 31 May 2013; and

2.4. US$13,922= on or before 30 June 2013.