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.BACKGROUNDOn 1 September 2010, the first respondent, as the Seller,
on the one hand and the second respondent, as the Purchaser, ...
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