At
the centre of the present urgent chamber application is a Bentley
Continental G.T. motor vehicle with registration number ACO 1759. The
motor vehicle was imported from the United Kingdom. Its landing price
was $240,000= and duty payable on it was assessed at $60,000= which
its importer(s) paid.
On
landing onto Zimbabwe, the vehicle changed hands from the importer
(s) Anderson Tagara and Ndabazinengi Shava, for and on behalf of whom
Anderson Tagara allegedly acted in the importation of the vehicle.
Ndabazinengi
Shava alleged that, in Mid- May 2013, one Uebert Angel, of Spirit
Embassy Church, conned him into parting with the vehicle. He stated
that Mr Angel assured him that he would, on donating the vehicle,
receive a manifold of blessings in the form of similar motor vehicles
and cash within eight months of surrendering the vehicle to Mr Angel.
He said Mr Angel told him that, if the promised blessings did not
materialise, Mr Shava could freely get back his vehicle from him.
It
is alleged that after the eight months had lapsed, and Mr Shava
having received no blessings as had been promised, the latter phoned
Mr Angel over the failure of the promises which he had made. Uebert
Angel, it is claimed, started by ignoring the phone calls and later
he blocked Mr Shava's calls. Mr Shava stated that when he made
further inquiries about the matter, he discovered that the vehicle
had been sold to one Phibeon Busangabanye. He said he called at Mr
Busangabanye's place of work where he confirmed that Mr Angel had
indeed concluded an agreement of sale of the motor vehicle with Mr
Busangabanye.
He
said the issue of the sale of the motor vehicle caused him to file a
report of fraud with the police against Mr Angel who, it is claimed,
is currently staying in the United Kingdom.
Mr
Shava's report to the police triggered the latter's
investigations of the matter which related to the motor vehicle. The
investigations, it is claimed, revealed that Mr Tagara registered the
motor vehicle in his name and sold it to one Benjamin Mutamiri whom
he said was acting for and on behalf of Mr Angel. This resulted in
the state preferring charges of fraud against Mr Angel and Mr Tagara.
It
is the State's case that Mr Tagara and Mr Angel cooked documents
with a view to concealing a fraud which they committed. The State
said Mr Tagara is scheduled to appear at the Regional Court, Harare,
on Tuesday 17 February 2015. The applicant wants the vehicle, which
is at the centre of the parties' wrangle, produced as an exhibit in
court. The vehicle is currently in the possession and control of Mr
Busangabanye who allegedly purchased it from Mr Angel.
It
is in his undisturbed possession and control by virtue of an order of
this court which was filed under case number HC11372/14.
The
matter which relates to the order was brought to court under the
mandament
van spoliae
relief.
Mr Busangabanye approached and moved the court on an urgent basis for
that relief when, on 24 December 2014, police made an effort to seize
the vehicle from him and have it parked at their Vehicle Theft Squad
Parking yard in Southerton. The provisional order was granted to Mr
Busangabanye on 25 December 2014, and, on 28 January 2015, that order
was, in default of the respondents, confirmed as a final order of
this court.
Mr
Busangbanye was, accordingly, conferred with the authority to retain
control and possession of the motor vehicle….,.
The
police, being part of the State which is desirous of prosecuting Mr
Tagara could not, and did not, oppose the application. All they
wanted was a direction from this court as regards the way forward on
the matter which related to the production of the car as an exhibit
during the trial of Mr Tagara.
Mr
Busangabanye opposed the application.
His
opposition, however, centred more on why he was not cited as a party
to the application than it dwelt on the fact that he did not want to
have the car produced as an exhibit.
There
is no doubt that the car is the subject of a number of proceedings
criminal and/or civil - before this and other courts. Its ownership
remains in the balance between Mr Shava, Mr Angel and Mr
Busangabanye. Criminal proceedings have been, and will be instituted
against certain individuals on charges which range from forgery right
through to fraud.
The
car cannot, therefore, be disposed of in any way until the dust which
surrounds its ownership, possession and control has settled.
In
this regard, the car will remain with Mr Busangabanye to whom the
court conferred possession and control of the same. He will, however,
be required to produce the car and to avail it to the court which is
dealing with the matter which relates to the car as and when the
State, or any litigant, calls upon him to do so. He, on his part,
stated through counsel for him during the hearing of this application
that he was not averse to the due administration of justice. He
accepted the position that he will avail the car to court as and when
he is required to do so.
The
order which the court made in his favour, under case number
HC11372/14, remains valid until it is varied or rescinded by the
court. It protects his possession and control of the motor vehicle.
The
court has considered all the circumstances of this case. It is
satisfied that the applicant proved its case to the extent of having
the motor vehicle produced as an exhibit only. It proved that case on
a balance of probabilities.
It
is, in the result, ordered as follows:
(a)
That Mr Busangabanye continues to retain possession and control of
the motor vehicle in terms of the High Court Order HC11372/14.
