Interpleader
Application
CHITAPI
J:
In
this application, the applicant attached in execution certain movable
goods listed in annexure B to the application. The goods were
attached for execution to satisfy a judgment of this court in the
case Tian Ze Tobacco Company (Pvt) Ltd v Lawrence Katsiru Case No.
HC2100/14.
The
two parties are the judgment creditor and debtor respectively.
In
terms thereof the judgment creditor caused the issue of a writ of
execution to recover an amount in excess of $224,003-16 and execution
costs. The applicant in executing on the writ proceeded to the
judgment debtor's farm called Cambridge Farm in Marondera and
attached a number of vehicles and machinery on 24 June, 2014.
Following
the attachment, the applicant received claims to the property by the
claimants.
This
development culminated in the applicant filing this interpleader
application on 4 August, 2014. The applicant wishes that the court
determines the validity of the claims made his interest being the
recovery of his costs.
The
applicant's legal practitioner had no submissions other than to
abide by his papers whilst emphasising that he does not collude with
any of the claimants.
Interpleader
proceedings are very common in that following an attachment of
property to satisfy a judgment of the court, the Sheriff or his
deputy receives claims from third parties alleging ownership of
attached property and seeking its removal from attachment arguing
that they are not party to the proceedings.
In
the fluid, lucid and didactic – judgment in The Sheriff of the High
Court v Munyaradzi Tutini Majoni & 3 Ors HH689/15 MAFUSIRE J
explained what interpleader proceedings entail, the incidence of
proof and the court's approach.
I
embrace what the learned judge indicated therein and note in
particular that the claimant bears the onus to prove ownership of the
goods which the claimant claims.
I
would add that the onus is not limited to proving ownership as such.
The position should be stated as that the claimant bears the onus to
prove on a balance of probabilities that the attached goods whose
removal from execution is sought are not legally susceptible to
execution. This could by reason of ownership by the claimant or such
other good and legally recognizable reason why the attached goods
should not be executed upon.
In
casu, I will briefly detail the individual claimant's claims and
the facts advanced to support the exclusion and release from
attachment of property as claimed.
1st
Claimant – Esther Hombarume
She
states in her affidavit that she is the wife of the claimant who is
the owner of a motor vehicle registration AAR 5608, a Honda Accord
attached by the applicant on 24 June, 2014. She claims to be the
daughter of the judgment debtor and that she left the vehicle at her
father's farm for safekeeping as she resides at Little Zim Farm.
She attached the vehicle registration book “as proof of ownership
of the vehicle.”
She
claimed to have purchased the vehicle from Japan in 2005.
The
judgment creditor opposes the claim on several grounds. It raises the
issue of the claimant's locus standi in that none of her property
was attached and that she cannot file a claim on behalf of another.
I
note that the vehicle registration book is in the name of Tichaona
Hombarume. The claimant states that the registered owner is her
husband. There has been no proof of such relationship presented to
court and worse still there is no reason given as to why the
registered owner did not personally lay claim to the vehicle.
Whilst
the claimant purports to have purchased the vehicle from Japan, no
documents or other proof of purchase have been placed before the
court. Such documentation or acceptable proof of purchase would have
constituted the best evidence of ownership because a vehicle
registration does not constitute proof of legal ownership. The
registration book itself is endorsed that the registration book is
not proof of legal ownership.
The
claimant did not state as to why it was necessary to have the vehicle
kept at the judgment's debtor's farm other than to state that it
was for safe keeping in her absence. She did not state when she was
absent, from where and where she was.
This
claimant's claim is made up of bold allegations which do not amount
to acceptable proof of ownership nor do they provide other legally
cognizable reason to justify the release of the vehicle from
attachment. The claim must fail.
Second
claimant's claim: Violet Munjaranji
The
judgment creditor is not opposed to the claim. She claims the release
of an Isuzu KB300 registration no. ADF 8941. The vehicle should be
released if this has not already been done.
Third
claimant: Ephison Simbarashe Ndawi
He
lays claim to a Mitsubishi Pajero motor vehicle registration no. AAT
4597. He claims that the judgment debtor was his “social and
religious associate.” He left the vehicle for safekeeping at the
judgment debtor's farm whilst he looked for prospective purchasers
for the vehicle.
The
judgment creditor argued that the judgment debtor was not a security
company where cars could be lodged for safekeeping. It argued that
the submission that the vehicle was on sale was unlikely. The
judgment creditor questioned why the vehicle was not at the address
shown on the registration book. It surmised that the vehicle had
probably been sold to the judgment debtor who did not change
ownership.
In
my view, this claimant's claim is not farfetched.
The
claimant did not just attach the registration book as proof of legal
ownership. He attached the official motor vehicle extract from
Central Vehicle Registry. It gives details of the importation of the
vehicle by the claimant and proof of payment of import duty and
police clearances.
In
such a situation, the onus to prove that the third claimant is not
the owner of the vehicle must shift to the judgment creditor.
Where
the claimant places before the court acceptable evidence of ownership
or of some other legally recognisable ground warranting release of
the attached property from execution, the onus shift on the party who
impugns such evidence to controvert it.
In
respect of the third claimant's claim and evidence placed before
the court, the judgment creditor has not placed contrary evidence.
The
third claimant's claim must succeed.
Fourth
claimant - Shaki Museve: Fifth claimant - Nomuhle Bangani: and Sixth
claimant - Cooper Smit
I
deal with the three claims as combined because the three make
unsubstantiated claims to attached property whose release they claim.
In
the case of the fourth claimant he claims to be owner of a case
tractor which was attached. He states that the judgment debtor is a
neighbour with whom they assist each other with farming equipment. In
the same affidavit he refers to a motor vehicle described in
“Annexure D” described as the official registration book of the
same. The said annexure D was however not attached. The affidavit is
disjointed in content. It refers to a tractor, then to tractors and a
motor vehicle. There is no interactive drafting of his depositions.
One cannot tell exactly what he claims should not be executed upon
nor the basis thereof.
In
his submissions, the legal practitioner for third claimant said that
para 3 of the claimant's affidavit was done in error. The para
refers to a motor vehicle.
It
is difficult to understand how a deposition made in an affidavit can
be said to have been done in error.
Be
that as it may, the fourth claimant's bold assertions to ownership
of the tractor which he did not fully detail and trailers again not
detailed is insufficient to prove any cognizable legal ground to
interfer and stop the attachment and execution.
As
regards the fifth claimant she or he makes a bold assertion that he
or she is the owner of a 24 Disk (sic) harrow which was attached. The
disk harrow is said to have been in the custody of the judgment
debtor for use in his farming activities because the two are
neighbours. No further details of the claim to ownership are given
nor does the fifth claimant even indicate how he or she is a
neighbour.
The
position of the sixth claimant is the same as with the fifth
claimant. He makes bold assertions that he is the owner of 2 steel
trailers which were attached. He claims to be a neighbour of the
judgment debtor and that the two assist each other with farming
equipment. No evidence of ownership of the trailers was provided. The
sixth claimant did not even give details of how he is a neighbour or
when the trailers were taken delivery of by the judgment debtor.
In
cases where claimants make bold assertions to ownership of attached
property, no dispute of fact can be said to arise such as would
require resolution.
When
a party simply opens his or her mouth to say “I am the owner of
that item of property” without placing any evidence tending to
prove ownership, even a prima facie case of ownership cannot be said
to have been proved.
Courts
decide cases on evidence placed before them.
Bold
assertions do not amount to the type of evidence on which a case can
be determined because a bold assertion can be made by anyone and it
remains that.
The
claims by the fourth, fifth and 6th claimants were not proven.
I
cannot just pen off this judgment without commenting on the
ineptitude of the claimants legal practitioner.
He
drafted affidavits of claimants which are similar in wording to each
other except for a few issues like the names of the claimants and the
property attached. The legal practitioner should have done better by
advising the claimants to provide acceptable and sufficient evidence
to back up their claims. This they could have done by producing
documents of purchase of the claimed property. They could also have
filed supporting affidavits of evidence corroborative of their
claims.
The
legal practitioner should understand that possession of a movable
good raises a presumption that the possessor is the owner. The
claimant cannot rebut the presumption through a mere say so claiming
ownership without anything further to buttress the assertion.
The
impression I gathered was that the legal practitioner for the
claimants in making bold assertions of ownership by his clients was
himself not mindful of the incidence of onus in such applications or
if he was, then he had no choice because the claimants must have lied
to him as they clearly had no evidence to back up their claims.
In
the result the application is disposed of as follows:
(a)
The claims of the 2nd and 3rd claimants are upheld and the applicant
is ordered to remove from attachment and execution motor vehicles Reg
No. ADF 8941 (Isuzu BK300) and Reg No. AAT 4597 (Mitsubishi Pajero).
(b)
The claims of the 1st, 4th, 5th and 6th claimants are hereby
dismissed with costs.
Tadiwa
& Associates, applicant's legal practitioners
Munangati
& Associates, claimants' legal practitioners
Muvirimi
Law Chambers, judgment creditors' legal practitioners
