MTSHIYA
J:
This
is an interpleader application.
On
9 January 2014, an arbitral award was made in favour of the judgment
creditor. The award was against Rufaro Marketing (Pvt) Ltd (the
judgment debtor) (not cited herein). The judgment creditor proceeded
to register the award as an order of this court.
The
court order obtained on 24 April 2014 reads as follows:
“IT
IS ORDERED THAT:
1.
The arbitral award by the Honourable K Segula dated 9th
January 2014 be and is hereby registered as an order of the High
Court.
2.
The respondent be and is hereby ordered to pay costs of suit.”
On
the basis of the above order, on 15 May 2014, the judgment creditor
issued a writ of execution. On 20 May 2014 a Mazda T3500 registration
number ABI 7914 (the truck), registered in the name of the judgment
debtor, was then attached together with other goods belonging to the
judgment debtor.
On
26 June 2014, through an affidavit, sworn to on 20 June 2014, the
claimant advised the applicant (The Sheriff of the High Court) that
the truck belonged to him. He said he had bought the truck from the
judgment debtor. To that end he submitted a copy of a “Vehicle Sale
Agreement” dated 16 May 2014.
Apart
from costs incurred in the execution process, the applicant has no
interest in the matter. All he wants is a determination on the
ownership of the truck i.e. does the truck belong to the claimant or
to the judgment debtor.
In
support of his claim, the claimant, in part avers as follows:
“6.
The attached Mazda Truck no longer belongs to the Judgment Debtor but
to me by virtue of a vehicle sale agreement entered into on the 16th
of May 2014. Attached hereto as “Annexure A” is a copy of the
vehicle sale agreement.
7.
I have annexed hereto copies of the receipts showing that payment was
done to Rufaro Marketing (Private) Limited for the purchase of the
motor vehicle. See “Annexure B.”
8.
The payment was made on my behalf by Anephen Investments (Private)
Limited a company for which I am one of the company directors as can
be seen from the list of Directors attached as “Annexure C.”
9.
It is only unfortunate that I had not yet taken possession of the
motor vehicle and removed it from the Judgment Debtor's premises as
the sale had only been concluded 4 days before the judicial
attachment took place.”
The
annexure referred to in para 7 above is an NMB Bank Statement
reflecting a transfer of US$12,000-00 made in favour of Rufaro
Marketing (Pvt) Ltd on 2 June 2014. The transfer was effected by a
company known as Anephen Investments (Pvt) Ltd (the company). The
claimant is one of the Directors of the company.
On
his party the judgment creditor, in opposing the claimant's claim,
averred that the truck belonged to the judgment debtor. He also
states the following:
“Moreover,
there is collusion between the Claimant and the Judgment Debtor. This
is evidenced by the letter in Annexure “A” which clearly requests
the Sheriff to place on hold the sale in execution and the letter
refers to “attached goods.” The present interpleader application
is in respect of one vehicle only yet the Claimant requested the
Sheriff to stop the sale of all the attached goods. If the claimant
was not colluding with the judgment debtor, he would have specified
which vehicle he wanted placed on hold.
6.
AD
PARA 7
This
is denied. The agreement of sale is not proof of ownership. There was
no delivery of the vehicle neither was the purchase price paid for
upon signing the agreement. As such, no valid sale was entered into.
Moreover the agreement of sale was allegedly entered into four days
prior to attachment. The Judgment Debtor was well aware that there
was a court order in favour of the Judgement Creditor and attempt to
sell assets prior to attachment is an attempt to defeat the
enforcement of a court order. There is an element of collusion
between the Claimant and the Judgment Debtor. The agreement of sale
is a fabricated document aimed at defeating the enforcement of a
court order.”
The
judgment creditor goes further to state that the payment of
US$12,000-00, effected by the company, did not state what the payment
was for and no receipts were attached.
The
judgment creditor dismissed the agreement of sale, relating to the
truck, as a fabricated document and prayed for the dismissal of the
claimant's claim.
It
is common cause that as I write this judgment, the truck remains
registered in the name of the judgment debtor. That has not been
disputed.
Paragraph
8.1 of the agreement of sale provides as follows:
“8.1
The parties agree to sign all documents necessary to transfer
ownership of the vehicle from the Seller onto the name of the Buyer
within 30 (THIRTY) days of signing this agreement of sale.”
Notwithstanding
the agreement of payment, in terms of the above clause, transfer
should have been effected around 16 June 2014. However, we have a
situation where payment is alleged to have been effected on 2 June
2014 and yet the truck remained in the hands of the judgment debtor.
Worse still, payment was effected by an independent entity whose
connection with the claimant can only surface upon the lifting of the
corporate veil a process which is not called for in
casu.
Strangely enough, that payment is not immediately followed by a claim
for possession and transfer of ownership. No explanation is given.
Furthermore,
an examination of the NMB Bank statement reflects other huge
transfers of money from the company's account to other entities. It
is possible that the company may have had business dealings with
Rufaro Marketing (Pvt) Ltd but there were many other companies.
However, unless there is evidence to directly link the payment of
US$12,000-00 to the truck, we cannot positively conclude that the
payment was being effected on behalf of the claimant. There is
nothing in these papers to support that assertion. A Board resolution
could have helped.
In
addition to the above, one sees that the agreement of sale is only
four days older than the attachment date i.e. 20 May 2014. The writ
of execution was issued on 15 May 2014 i.e. a day before the
purported sale agreement. I want to believe that all along the
judgment debtor must have been aware of the award of Arbitrator K
Segula dated 9 January 2014 and the High Court Order dated 24 April
2014. It must also have been aware of the writ of execution born a
date before the purported agreement of sale.
The
events listed above give credence to the submission by the judgment
creditor that there must have been some collusion between the
claimant and Rufaro Marketing (Pvt) Ltd. The claimant was not able to
explain the coincidences that occurred as given above. The failure to
give adequate explanation leaves me with the conclusion that there
was never any genuine agreement of sale between the claimant and the
judgment debtor – who, in any case, has not found it necessary to
lend support to the claimant. The judgment debtor, in my view, never
sold the truck to the claimant but brought in the claimant to save
the truck from seizure.
In
view of the foregoing, I am, on a balance of probabilities, inclined
to accept that “the agreement of sale is a fabricated document
which is aimed at defeating the enforcement of a court order.”
The
claimant has therefore not succeeded proving ownership of the truck
and accordingly his claim must fail.
IT
IS ORDERED THAT:
1.
The claimant's claim to a Mazda T3500, registration ABI 17914,
placed under attachment in execution under an order of this court
dated 24 April 2014, be and is hereby dismissed.
2.
The Mazda T 3500, registration ABI 17914, be and is hereby declared
executable.
3.
The claimant shall pay costs of both the application and the judgment
creditor.
Messrs
Kantor & Immerman,
applicant's legal practitioners
Messrs
J Mambara & Partners,
judgment creditor's legal practitioners
Messrs
Nyakutombwa/Mugabe Legal Counsel,
claimant's legal practitioners
