TAKUVA J: Pursuant to the
provisions of Order 30 Rule 205A as read with Rule 207 of the High
Court Rules 1971 the applicant filed an inter pleader notice calling
upon the claimant and judgment creditor to deliver particulars of
their claims to the attached property as per notice of seizure and
attachment.
Applicant subsequently set down
the matter applying for:-
“1. Directions as to the proper
forum for determining its liability to each claimant and validity of
the respective claims;
2. A decision as to the validity
to each claimant and validity of the respective claims; and
3. An order authorizing the
applicant to deduct the costs incurred subsequent to the date of this
notice from the amount paid in.”
Prior to this, one Benedict
Gilbert Moyo had filed with the applicant an “inter pleader
affidavit” wherein he claimed that the attached motor vehicle, a
Prado registration number AAQ 6130 belongs to the Development Trust
of Insiza (claimant). This notwithstanding the fact that he was
driving the vehicle and kept it at his house where it was seized. He
attached a copy of the motor vehicle's registration book as proof
that the motor vehicle belongs to the claimant.
Upon being served with the inter
pleader notice, Benedict Gilbert Moyo filed a notice of opposition in
his capacity as one of the trustees of the claimant. He swore and
filed what he termed “respondent's opposing affidavit.” He
attached the Trust Deed of the claimant and a letter of his
appointment as a trustee. Further, he confirmed that under case
number HC3679/15 the applicant served a notice of attachment and
seizure to remove the motor vehicle, which according to him belongs
to the Trust. The registration book was again attached as “proof
that the motor vehicle belongs to the Development Trust of Insiza.”
Finally, he contended that since
the notice of seizure and attachment relates to his personal debt, it
would be improper for the applicant to attach property of a party
which is not part to the proceedings giving rise to the attachment.
One of the founding trustees of
the claimant one Ndumiso Mpofu filed a supporting affidavit
confirming Moyo's averments that the property belongs to the
claimant and that Moyo as a trustee has “rights to use the property
only on its business.”
The judgment creditor, through
its Regional Manager one Craig Follwell filed an opposing affidavit
opposing the claimant's claim on the following grounds:
In limine
1. there is no claimant before
the court in that a trust has no locus
standi in judicio at
law notwithstanding that it is duly registered in terms of the laws
of Zimbabwe.
2. the claimant's affidavit has
been deposed to by one Benedict Gilbert Moyo who is an interested
party in the present proceedings and also in the proceedings under
case number HC3679/15, in that the judgment creditor is pursuing him
for debt recovery pursuant to an order of this court per MATANDA-MOYO
J attached as annexure A. As an interested party, he is automatically
disqualified from litigating on claimant's behalf since it reveals
double standards to wear two hats that of the claimant and that of
the judgment debtor.
2. there is no record to confirm
that Benedict Gilbert Moyo is a trustee of the claimant who has been
authorized by the claimant to depose to the founding affidavit on
behalf of the claimant.
On the merits, it was argued that
since the registration book bears the warning “this registration
book is not proof of legal ownership,” the claimant must go further
in proving that it owns the vehicle. This is so in view of the fact
that Moyo has been using the vehicle for his own business at his farm
in Bulawayo to transport his stock feed, milk and other farm produce
and farming implements.
Further, the judgment creditor
filed heads of argument wherein it relied on a number of decided
cases.
Our law is clear on the fact that
a trust has no juristic persona – see John
Conrad Trust
v The Federation of
Kushanda Pre-school Trust & Ors
HH-503-15 wherein the court said;
Even if am wrong in that finding,
the plaintiff's claim will still suffer the consequences of suing
as a trust. The plaintiff being a trust is not a corporate body and
therefore cannot appear as a party.”
In WLSA
& Ors v Mandaza
& Ors 2003 (1) ZLR
(500) (H) 505E – H SMITH
J quoted with approval the pronouncement of STEYN
CJ in Commissioner of
Inland Revenue v
MacNeillie's Estate
1961 (3) SA 833 (A) at 40F – H that;
“Like a deceased estate, a
trust, if it is to e clothed with juristic personality, would be a
persona or legal entity constituting of an aggregate of assets, and
liabilities. Neither
authorities nor our courts have recognized it as such a persona or
entity.” (my
emphasis)
See also Crundall
Bross (Pvt) Ltd v
Lazarus N. O. &
Anor (1990) ZLR 200
(H) 298E; Gold Mining
and Minerals Development Trust
vs Zimbabwe Minerals
Federation 2006 (1)
ZLR (174) H 177 F.
A M. Honore in the South
African Law of Trusts
3rd
Edition at pg 313 while dealing with locus
standi in matters
relating to trust state:
“… An action relating to the
trust affairs, for example for damage to trust property must
be brought by the trustee in his capacity as such and not in his
private capacity … A
trustee bringing an action or application should aver his capacity
and that he was properly
appointed by a given instrument or order of court.
The source of the authority of a trustee must be averred (e.g. will,
deed inter vivos,
appointment to an insolvent estate).” (my emphasis)
For these reasons, it was argued
that the claimant in
casu is simply non
suited and the proceedings before this court are a nullity.
As regards Moyo's capacity, it
is common cause that clause 5(c) of the Deed of Trust attached to the
claimant's opposition reveals that a trustee shall
hold office for a maximum period of 3 years unless he earlier vacate
or is removed from office. In the present case Moyo was appointed a
trustee on 15 August 2005. There is no indication that his tenure as
a trustee was extended beyond the three year period in terms of the
Deed. Put differently, he has over stayed in the office and his
activities on behalf of the trust are void. See Ruzengwe
& Anor vs
Zvinavashe HH-356-14
where the court said where a trustee of a trust purports to stay in
office beyond the period for which he was appointed, any decision
made by him may be challenged and may indeed be invalid.
The correct position of the law
in inter pleader proceedings is that the burden of proving that the
goods that were found in possession of the judgment debtor by the
Sheriff at the time of attachment belong to the claimant rests on the
claimant – see Phillips
and Anor v Ameen
& Anor HH-109-89
at p 93 where it was stated thus;
“In Bruce
N.O. vs Josiah
Parkes & Sons (Rhodesia) (Pvt) Ltd & Anor
1971 (1) RLR 154 GOLDIN
J held that where the applicant for relief was the Sheriff who had
seized under a writ of execution goods consisting of movable property
which was in possession of the judgment debtor at the time of
attachment, the onus of proving rests on the claimant.”
In casu,
the vehicle in question was found in possession of Moyo the judgment
debtor at the time the Sheriff was carrying out the judgment
creditor's instructions. The claimant has simply attached a
registration book as proof that the vehicle belongs to it and not to
Moyo. It is trite that a registration book on its own is not proof of
legal ownership of a motor vehicle – see the remarks of ZIYAMBE
JA in Air Zimbabwe
(Pvt) Ltd & Anor
vs Nhuta & Ors
SC-65-14 at p 10 which the court said;
“I find no fault in the above
reason. It is trite that registration books are not proof of
ownership.”
In the present case, I find that
the claimant has failed to prove its case on a balance of
probabilities in that it failed to place sufficient evidence of
ownership of the vehicle. I find also that Moyo has not bothered to
establish or justify his status as a trustee in light of the fact
that his tenure long expired before the vehicle was attached. It
boggles the mind therefore, how he is found in possession of a
vehicle belonging to the trust long after his three year tenure had
expired in terms of clause 5(c) of the Deed of Trust he himself
produced and relied on.
At law possession of a movable
raises a presumption of ownership which in the present case has not
been rebutted. The claimant has in my view failed to establish its
claim for the following decisive reasons;
1. there is no claimant before
the court due to Moyo's defective capacity.
2. There is insufficient evidence
of ownership of the vehicle placed before the court.
As regards costs, the general
rule is that once the court finds that the claimant has failed to
establish its claim an order for costs ought to be made. See
Hallsbury, Laws of
England, Simonds Vol
122 para 960 where it was stated;
“The ordinary rule in all
Divisions of the High Court now is that where the stakeholder has
acted properly he is allowed his costs out of the fund or subject
matter in dispute and
the claimant who is in the wrong has to indemnify to that extent the
claimant who is entitled to the refund.”
(my emphasis)
See also Philllips
case supra at
p5 where the court said;
“As for the question of costs
of these proceedings, the normal practice in such cases is to
indemnify the applicant and to make the unsuccessful party pay the
costs …
Since the claimant has failed to
discharge the onus upon him to establish ownership of the attached
vehicle on July 31, 1986, the claimant's case must be dismissed.”
In the present case, I do not
find any credible reason to depart from this rule of practice.
Accordingly, it is ordered that:
1. The claimant's claim to the
property placed under attachment in execution of judgment under case
number HC 3679/15 (Harare High Court) is hereby dismissed.
2. The property listed in the
notice of seizure and attachment dated 5 September 2015 issued by the
applicant is hereby declared executable.
3. The claimant pays the costs of
the judgment creditor and the applicant.
Messrs T.J. Mabhikwa & Partners, applicant's legal
practitioners
Lunga Gonese Attorneys, claimant's legal practitioners
Messrs Gill, Godlonton & Gerrans, judgment creditor's
legal practitioners
