Urgent
Chamber Application
MANGOTA
J:
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
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.
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
mandamen
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.
It
is strange that the applicant, with full knowledge of the stated
fact, filed the present application on the basis of urgency and as an
ex
parte
application.
The
court went through the applicant's papers and realised that:
(a)
the refusal of the police to take the vehicle from its lawful
controller and possessor in the face of the court order was a correct
interpretation of the law; and
(b)
Mr Busangabanye had a substantial interest in the possession or
otherwise of the motor vehicle.
The
court, accordingly, insisted that the application be served on the
police and on Mr Busanyabanye.
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.
(b)
That Mr Busangabanye be and is hereby ordered to avail the motor
vehicle, a Bentley Continental G.T. registration number ACO 1759 to
the Regional Court for purposes of proceedings which will commence on
17 February 2015.
(c)
That Mr Busangabanye be and is hereby ordered not to dispose of the
motor vehicle until all proceedings which relate to the car have been
finalised.
(d)
That there be no order as to costs.
