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 1st 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.
