Opposed
application – Interpleader
MAFUSIRE
J:
[1] This
was an interpleader. I dismissed the claimant's claim at the end of
argument. The facts were these. The applicant had placed certain
goods under attachment in execution of a judgment obtained by the
judgment creditor against the judgment debtor which was still
outstanding. The claimant claimed that all the attached goods
belonged to him, not the judgment debtor.
[2] The
attached goods comprised washing machines; a microwave; several
carpets; several television sets and a stand; an office chair;
several wall mirrors; a bedside cabinet; a study table; a play
station [video game]; a fan; refrigerators; a garden suite and chair;
a garden table and chairs; lounge suites; a coffee table; a radio and
speakers; side tables; a dining room suite; a VCR and decoders; lamp
shades; wall picture frames; dining room cabinet; a glass side table;
sets of golf clubs and bar stools.
[3] The
goods were attached at an address in Rhodene, a low density suburb of
Masvingo City.
[4] The
claimant claimed that the court only needed to look at the nature of
the attached property to see that it was clearly household goods and
personal effects that could not conceivably be assumed to be owned by
the judgment debtor, a company. It was argued that the place of
attachment was the claimant's place of residence and that the
claimant was in possession of the goods when they were attached. In
paragraphs 11 to 13 of his affidavit the claimant said:
“11. If
First Respondent
is to execute, he [sic]
should target specifically the assets held by Takataka Plant Hire,
not me. I cannot lose my property to satisfy an alleged debt the
Judgment Debtor would be liable for in its own capacity.
12. The
attached property belongs to me, this fact is obviously apparent from
the very nature of the good [sic]
removed as seen on Annexure “A”.
There is absolutely no link between the attached property and the
Judgment Debtor.
13. Proof
of my ownership of the items attached is evident from the nature of
the property. The items attached are clearly household items.”
[5] Developing
the above argument further, Mr Dzoro,
for the claimant, singled out the play station video game,
televisions, and the sets of golf clubs as clearly being such
household items and personal effects as could not reasonably be
expected to be owned by a company.
[6] Mr
Chinamatira,
for the judgment debtor, countered by saying the onus was on the
claimant to prove ownership of the attached goods; that he could not
do so by merely pointing to the nature and identity of the goods;
that nothing stopped a company from owning televisions sets or golf
clubs or video games; that the place at which the goods had been
attached was the judgment debtor's registered office and place of
business and that the claimant was its director and “owner”.
[7] For
the law on the point the parties referred me to such cases as
Phillips
N.O. v National Foods Ltd & Anor;
Deputy
Sheriff, Marondera v Traverse Investments [Pvt] Ltd & Anor;
Sheriff
of the High Court v Mayaya & Ors
and Sheriff
of the High Court v Majoni & Ors.
[8] One
common thread running through such cases, and several others on the
point, is that there is a rebuttable presumption that where someone
is found in possession of movable goods, they are presumed to be the
owner of that property. Where someone else other than the possessor
claims to be the owner of those goods, they have the onus to prove,
on a balance of probabilities, that they are the owner. There are no
hard and fast rules on how they may go about proving such ownership.
Every case depends on its own facts. The claimant may have to produce
some evidence, such as receipts or other documents, if available, to
prove ownership. A bald assertion that they are the owner is not
enough.
[9] In
casu,
certain salient facts were highlighted or brought to my attention.
They were these. The address in Rhodene at which the goods were
attached, Stand 14 Protea Avenue, was at all times the address for
service for the judgment debtor. Mr Chinamatira
said it was the judgment debtor's registered office and place of
business. He produced no proof. But Mr Dzoro
did not refute it. Instead he stressed that it was actually the
claimant's residence with his family. He claimed that in the Deeds
Office the property was registered in the name of the claimant. But
he produced no proof either, promising to provide the title deed
later. That was not good enough. The interpleader had been at the
instance of the claimant. He had had two chances: firstly when he
submitted an affidavit to the Sheriff which triggered the
application. Secondly, when the Sheriff initiated the application and
called upon both parties to file their notices of opposition within
the requisite ten days. But all that the claimant kept saying was
that the nature of the attached property showed that they were
household goods and personal effects.
[10] Another
salient factor highlighted by Mr Chinamatira
was that the writ of execution was one against both movable and
immovable property. Stand 14 Protea Avenue above was one of two
properties singled out for attachment and said to have been
transferred to the judgment debtor. Mr Dzoro
had no meaningful response to that. If indeed the property was one
transferred to the judgment debtor and if in the writ the judgment
creditor wanted it attached in execution, then it was probably
registered in the name of the judgment debtor.
[11] Some
issues could easily have been proved. Details of the registered
office of a registered company are filed in the companies' office.
Proof of ownership of an immovable property is obtained from the
deeds office. But in
casu,
the parties were content to blitz each other and wear down the court
with bald assertions and bare denials.
[12] Mr
Dzoro's
argument that one only needed to look at the nature of the attached
property to see that they were household goods and effects and that
therefore I should find that they belonged to the claimant was lame
and insufficient. The argument did not rebut the presumption of
ownership by the judgment debtor. Whilst the goods that he singled
out to press home the point: video games; golf clubs and televisions
sets, are ordinarily personal items for enjoyment by natural persons,
nothing precludes juristic persons from owning such type of goods as
well, including immovable properties, all for the personal or
exclusive enjoyment by such of their personnel as may be entitled to
such perquisites. Mr Chinamatira
claimed the claimant was the soul and brains of the judgment debtor.
Mr Dzoro
said there were other players. Characteristically, there was no proof
either way. But it seemed more probable that the judgment debtor was
the claimant's alter
ego.
At any rate, among the attached goods were an office chair; garden
tables and chairs; a fan; toilet mirrors; refrigerators, and the
like, goods that can ordinarily be found in company premises also.
[13] In
the end I decided the case on the question of onus. It was on the
applicant. Dismally it failed to rebut the presumption that the
attached goods belonged to the judgment debtor. I gave an order in
terms of the applicant's alternative draft as follows:
(i) The
Claimant's claim to the property mentioned in Paragraph 3 of the
Interpleader Notice, which was placed under attachment in execution
of [the] judgment in HC 1148/15 is hereby dismissed.
(ii) The
property attached in terms of [the] Notice of Seizure and attachment
dated 6th
February 2018 issued by the Applicant is hereby declared executable.
(iii) The
Claimant [shall] pay the Judgment Creditor's and Applicant's
costs.
6
July 2018
Dube-Banda
Nzarayapenga & Partners,
applicant's legal practitioners
G.N.
Mlotshwa & Co,
claimants' legal practitioners
Mavhiringidze
& Mashanyare,
judgment creditor's legal practitioners
1.
The judgment creditor
2.
The judgment debtor
3.
The Sheriff's inventory of attached goods
4.
1996 [2] ZLR 532 [H]
5.
HH11-03
6.
HH494-15
7.
HH689-15
