On 1 December 2013, the judgment creditor (the creditor)
issued summons against Homestake Mining, the judgment debtor (the debtor)
claiming $33,642=61 and interest at 5% per annum calculated from 1 January 2011
to date of payment. The debtor was a duly incorporated company with limited liability.
Its address of service was given as 1 Office Road,
Global Phoenix, Kwe-Kwe …,.
The Additional Sheriff's return of service, Advice No.1710,
showed that process which related to the creditor's suit was served at the
abovementioned address on 13 December 2013. The remarks portion of the
Sheriff's return read:-
“Served on Nhedzi, security guard.”
Two months after service of process on the debtor, and the
latter not having entered appearance to defend, the creditor did, on 14
February 2014, successfully apply for default judgment.
Following the default judgment which had been entered in
its favour, under case number HC10438/13, the creditor did, on 10 July 2014,
instruct the applicant to attach and take into execution goods which were at 1
Office Road, Global Phoenix, Kwe-Kwe, the debtor's address for service. When
the applicant attached the goods, Kwe-Kwe Consolidated Gold Mines (Pvt) Ltd
(the claimant) insisted that the attached property belonged to it and not to
the debtor. It, accordingly, caused an inter-pleader summons to be processed so
that the court would decide on the ownership of the property.
The creditor opposed the interpleader summons in a very
stiff way. The applicant, who is the Sheriff of this Court, did nothing other
than to state:
(a) The history of the matter under case number HC10438/13;
(b) The instructions which he had received from the
creditor; and
(c) The claimant's claim to the property.
He called upon the claimant and the creditor to deliver to
the Registrar of this court particulars of their claim to the goods which he
had attached.
The claimant's position was that the debtor and itself were
two different legal entities. It, in this regard, attached to its papers
Annexures B1 and B2. The annexures were, respectively, copies of the CR6 form
and certificates of incorporation which pertained to itself as a legal persona.
Annexure B1, Form No.CR6, gives, as the claimant's physical business address, 1
Office Road, Globe and Phoenix Mine, Kwe-Kwe and its postal address is stated
as P.O. Box 393, Kwe-Kwe.
The creditor's claim against the debtor arose during the
period which extended from January 2011 to August 2013. The claim comprised
levies and surcharges which were due to the creditor from the debtor in terms
of section 54(3) and (4) of the Manpower Planning and Development Act [Chapter
28:02] as read with section 3 to 5 of Statutory Instrument 74/1999, S.I.74 of
1999.
It is common cause that at the time that the claim arose,
the debtor gave 1 Office Road, Global Phoenix, Kwe-Kwe as its address of
service. Paragraph 2 of the plaintiff's declaration is relevant in the
mentioned regard. The summons which the creditor issued against the debtor is
also to the same effect. The summons and declaration were served at the
mentioned address on 13 December 2013. They were served upon one Nhedzi who was
a security guard at the given address.
Neither the claimant nor the debtor denied that they saw
the creditor's summons and/or declaration. They, in fact, confirmed having had
sight of the creditor's summons and declaration. For reasons which were best
known to them they did not enter appearance to defend. Nor did the claimant
write to draw the creditor's attention to the fact that its summons and
declaration had been served on the wrong party. It maintained its silence for
some eight weeks running.
When the ten days dies induciae period within which,
according to the Rules, the debtor should have responded, expired, the creditor
applied for default judgment. This was duly granted to it.
The silence of the claimant created, in the mind of the
creditor, the distinct impression that the debtor, which it had successfully
sued, operated from the address which the claimant claimed to be its business
address. That same silence also persuaded the creditor to believe that the
property which was at the mentioned address belonged to no one else but the
debtor. It is, therefore, on the basis of the mentioned silence on the part of
the claimant that the creditor instructed the applicant to attach and take into
execution property which was at 1 Office Road, Globe and Phoenxi Mine, Kwe-Kwe.
The property, it has already been observed, was attached on
10 July 2014. The Sheriff's return of service, Advice No.018557, which bears
the mentioned date, is relevant on this aspect of the case. Its remarks portion
reads:
“Defendant's goods attached in the presence of Mr Nhamo
who is the General Manager for the Defendant. See attached inventory for
more information.”…,.
Mr Nhamo, whom the Sheriff described as the debtor's
General Manager, deposed to an affidavit for and on behalf of the claimant. He
did so on 8 September 2014. He stated, in the affidavit, that he was the
claimant's General Manger whom the latter authorised to swear to the affidavit
which founded the claimant's claim against the creditor and the debtor. He did
not controvert the Sheriff's return which stated that he was the debtor's General
Manager. All he did was to state that the debtor and the claimant were separate
legal entities. He requested the court to view them as such. The court was,
therefore left in a quandary. It could not, and cannot, tell if Emmanuel Toga
Nhamo is General Manager for the debtor or the claimant - or both of them.
When the property was attached, on 10 July 2014, Mr Nhamo,
it is common cause, did not protest. Nor did he advise the bearer of the writ
of execution that what he had attached did not belong to the debtor but to the
claimant. He, once again, gave no reasons at all for his silence. As General
Manager, Mr Nhamo occupied a very important position in the claimant's
operations. He knew that the attachment which had occurred could cripple the
business operations of the claimant. That knowledge on his part
notwithstanding, he remained very mute on such a vital part of his business
operations and/or activities.
The goods were attached on 10 July 2014. They were removed
from 1 Office Road, Globe and Phoenix Mine, Kwe-Kwe, on 29 July 2014. The
claimant did nothing about the attachment and the removal of the property. It
remained mute for the nineteen-day period which existed between the two
mentioned processes. It also did nothing for the period which followed the
removal of the goods. It remained mute for the whole of August 2014 and only
issued the Interpleader Notice on 9 September 2014. It, in short, remained
inactive for some forty-one (41) days running. There is, therefore, no doubt
that the claimant's attitude remained inconsistent with the conduct of a party
which was desirous of protecting its business interests.
It is a well established rule of civil procedure that he
who avers must prove, on a balance of probabilities, what he is averring.
The claimant stated that the property which the applicant
attached belonged to it. It is for the mentioned reasons that the applicant
called upon the claimant to furnish the court with particulars of its ownership
of the property which forms the subject of the present proceedings.
The claimant, in substance, produced no particulars which
showed that the attached goods belonged to it. The creditor's contention was
that the claimant should have furnished the court and itself with documentary
evidence of its ownership of the property.
The court associates itself with the creditor's submissions
on this aspect of the case.
An inventory of assets or an assets register would, in the
view which the court holds of the matter, have sufficed as proof of ownership
of the property by the claimant.
The claimant attached to its papers Annexures C and D. The
annexures relate, respectively, to the registration book and insurance papers
of a Toyota Landcruiser motor vehicle which the applicant attached together
with the other goods which were at 1 Office Road, Globe and Phoenix Mine, Kwe-Kwe
on 10 July 2014. The motor vehicle with registration number ACJ 8139 was
registered in the name of one John Lee Waverley of Number 6, Helanvale,
Chicago, Kwe-Kwe.
The claimant stated that Mr Waverley was the owner of the
vehicle. It said it was using the motor vehicle for its business.
It, however, did not state the circumstances under which
the car came into its custody, care and/or use. It, in short, did not advise
the court, and the creditor, whether Mr Waverley hired out the car to it or
just gave it out to the claimant as an act of benevolence on his part. It did
not state what Mr Waverley stood to gain from surrendering what it said was his
valuable car to a going concern. Nor did it request Mr Waverley, whose
interests had been adversely affected by the conduct of the applicant, to react
to that conduct and assert his right in the car either by way of a sworn
statement or a letter which aimed at correcting the situation which had
obtained.
It is for the mentioned reasons, if for no other, that the
creditor insisted that the motor vehicle belonged to the debtor and was,
therefore, properly attached together with the other property which appears in
the Notice of Seizure and Attachment. The creditor's attitude was that Mr
Waverley may have sold the car to the debtor but ownership of the same had not
taken place when the attachment and removal of the goods occurred.
The court is of the same view.
Messrs Mutatu & Partners Legal Practitioners were representing
the debtor in the letters which they addressed to the creditor's legal
practitioners on 11 July and 3 August 2014. The same firm of legal
practitioners represented the claimant in the interpleader proceedings….,.
It requires little, if any, effort to realise that the
distinction between the debtor and the claimant is not only blurred but is
also, in fact, totally non-existent, particularly in terms of ownership of
assets by the one or the other. The court's observations in this regard find
support from the following findings which it has made:
(a) The physical business address of the claimant is also
that of the debtor;
(b) The General Manager of the claimant is also the General
Manager of the debtor; and
(c) The legal practitioners of the claimant are also the
debtor's legal practitioners.
The above, coupled with the conduct of the claimant, as
elucidated in the body of this judgment, convinces the court that the property
which the applicant attached and removed for sale in execution belongs to the
claimant and the debtor. The debtor and the claimant own the property jointly,
in the court's view. If the opposite was the case, as the claimant would have
the court to believe, the claimant would have wasted no time when the summons
and declaration were served upon it on 13 December 2013. It would have moved
swiftly to assert its rights and protect its interests without any further ado.
The court has considered all the circumstances of this
case.
It is satisfied that the claimant's claim has no
merit at all in law or in logic. It failed to establish its claim to the
property in a very dismal way. The court, in the result, dismisses, with costs,
the inter-pleader application and orders that all the property which was placed
under attachment be and is hereby declared executable.
