UCHENA
JA:
The
appellant appealed to this court against the decision of the High
Court. After reading the record and hearing submissions from counsel
for the parties, we dismissed the appeal with costs. We indicated
that reasons for judgment would follow in due course. These are they.
FACTUAL
BACKGROUND
The
appellant was a director of a company called Plant Haven (Private)
Limited (hereinafter referred to as Plant Haven). The appellant
resides at No.5 Sir Herbert Taylor Drive, Belvedere, in Harare.
The
first respondent was Plant Haven's landlord in terms of a lease
agreement. Upon breach of that lease agreement, the first respondent
obtained judgment in HC2584/12, against Plant Heaven and one Mr
Mantozo, for eviction, arrear rentals, holding over damages, interest
and costs.
On
vacating the first respondent's premises in terms of that
judgement, Plant Haven relocated to the appellant's residence at No
5 Sir Herbert Taylor Drive Belvedere Harare.
On
9 October 2015, the second respondent acting on behalf of the first
respondent, attached a motor vehicle at the appellant's residence
for the satisfaction of a debt owed to the first respondent by Plant
Haven.
The
second respondent instituted interpleader proceedings in the court a
quo because the appellant was claiming ownership of the motor vehicle
he had attached at her residence.
The
basis of her claim was that the motor vehicle was registered in her
name, and was therefore hers. Other than the assertions that the
vehicle was hers and the registration book which she argued to be
proof of ownership, no evidence was adduced in her affidavits before
the court a quo, to show when, where and how she acquired the
vehicle.
When
the motor vehicle was attached Messrs T.K Hove who were Plant Haven's
Legal Practitioners wrote to the second respondent as follows:
“Your
office attached our client's property in terms of a writ of
Execution for the capital sum of US5,386-31”.
The
letter is headed “Re Local Authorities Pension Fund v Plant Haven
(Private) Limited Case No. HC2584/12.”
There
can therefore be no doubt that T. K Hove Legal Practitioners were
raising issues with the Sheriff on behalf of the judgment debtor as
the content of the letter confirms their mandate.
The
High Court consequently found that the appellant failed to prove
ownership of the motor vehicle in question on a balance of
probabilities and the appellant aggrieved by that finding, appealed
to this court on the following grounds:
1.
The court a quo grossly misdirected itself in finding that the
judgment debtor had relocated to the appellant's premises, a fact
which was not borne by the papers.
2.
As a result of the finding in (1), the court a quo grossly
misdirected itself in concluding that the property belonged to the
judgment debtor.
3.
The court a quo grossly misdirected itself in concluding that
possession of the vehicle by the appellant at the time of attachment
could not weigh in favour of the appellant's ownership of the motor
vehicle.
4.
The court a quo erred at law in concluding that the vehicle's
registration book did not form prima facie proof of ownership.
5.
The court a quo erred in holding the appellant liable to satisfy the
debts of the judgment debtor when she was not a party to the judgment
in HC2584/12.
From
the facts and grounds of appeal it is clear that the sole issue for
determination is whether or not the appellant was able to prove
ownership of the motor vehicle on a balance of probabilities.
Miss
Mabwe for the appellant, submitted that ownership was proved on a
balance of probabilities because the appellant was in possession of
the motor vehicle which was registered in her name, when it was
attached at her residence.
She
contends that, by failing to accept these two facts, the court a quo
erred in coming to the conclusion it did.
Relying
on the argument that the motor vehicle was in the appellant's
possession when it was attached, Miss Mabwe drew the court's
attention to the fact that, possession at the time of attachment,
raises a presumption that one owns the property in dispute.
She
submitted that ownership of the motor vehicle was proved by the
registration book which showed that the motor vehicle was registered
in her name. She argued that a vehicle registration book issued in
the name of the holder thereof constitutes prima facie proof of
ownership such that once it is produced the onus to prove otherwise
rests on the party contending otherwise. In support of this argument,
Miss Mabwe relied on the case of Deputy Sheriff, Marondera v Traverse
Investments (Pvt) Ltd & Anor HH11/03 where the court held that;
“In
respect of the said 2 vehicles, the first claimant produced vehicle
registration books which were obtained in April and May, 2000, way
before these proceedings were contemplated. Proof of registration of
the said vehicles in the first claimant's name, is in the court's
view, prima facie evidence of ownership. The onus then shifted to the
second claimant to try to disprove the first claimant's prima facie
entitlement to the said vehicles.”
During
argument Miss Mabwe however conceded that a registration book is not
conclusive proof of ownership but merely creates a presumption of
ownership of the vehicle.
On
the basis of the above Miss Mabwe submitted that the court a quo
erred in concluding that the appellant failed to prove ownership of
the motor vehicle on a balance of probabilities when it was clear
that the motor vehicle was registered in her name and had been
attached while in her possession.
Mr
Mubaiwa for the first respondent submitted that, the court a quo
correctly found that the appellant failed to prove ownership on a
balance of probabilities.
He
submitted that a registration book on its own cannot be proof of
ownership of a motor vehicle. He relied on the cases of Sheriff of
the High Court v Mayaya & Ors HH494-15 and The Sheriff of High
Court v Orimbahuru & Anor HH128-16.
Mr
Mubaiwa further submitted that the purpose of a registration book, as
set out in s6 of the Vehicle Registration and Licencing Act [Chapter
13:14], is to enable a motor vehicle to be used on the road.
He
further submitted that the registration book showing the motor
vehicle was registered in her name was not enough to rebut the
presumption that the property belonged to the judgment debtor.
In
any event emblazoned on every registration book is a warning that
reads “This registration book is not proof of legal ownership”.
It
cannot therefore be relied on to prove ownership when it warns
against it.
Accordingly
the court a quo correctly found that the appellant did not prove
ownership on a balance of probabilities in the light of a competing
claim to ownership by Plant Haven which was also in possession of the
motor vehicle, when it was attached.
Interpleader
proceedings are instituted by the Sheriff in respect of property
attached by him when a third party claims ownership of that property.
In
such proceedings, it is necessary for the party claiming the attached
property to prove ownership by clear and satisfactory evidence. In
The Sheriff of the High Court v Mayaya and 2 Ors (supra), the court
held that;
“In
proceedings of this nature the claimant must set out facts and
allegations which constitute proof of ownership. The claimant must
prove on a balance of probabilities that the property is his or hers:
Bruce N.O v Josiah Parkers and Sons Ltd 1972 (1) SA 68 (R) at 70
C-E.”
In
that case commenting of reliance on a registration book to prove
ownership the court said:
“It
is therefore frivolous to argue that because the registration book is
not in the name of the first claimant therefore he is not the owner
of the motor vehicle. A registration book on its own is not proof of
legal ownership. This is even endorsed on registration books.”
In
the case of The Sheriff of the High Court v Orimbahuru (supra) the
court held that:
“It
is trite that in interpleader applications the claimant who seeks to
assert that the property in dispute belongs to him has to produce
such evidence as clear receipts and registration books for the
attached vehicles: see High Court Sheriff v S Rougxin Mining P/L &
Anor HH542/15.”
It
is clear from the facts of this case that the appellant and Plant
Haven shared the premises at which the motor vehicle was attached.
The writ of attachment states that attachment took place at the
appellant's residence from which the judgment debtor operated.
This
means that Plant Heaven was in possession of the motor vehicle.
It
is trite that where movable property is attached whilst in the
possession of the judgment debtor the onus of proving ownership rests
on the claimant.
In
a bid to discharge the onus placed on her, the appellant produced a
registration book of the motor vehicle showing that it was registered
in her name.
In
my view the court a quo correctly found that the registration book
did not conclusively prove that the motor vehicle belonged to the
appellant. The appellant should have led evidence setting out facts
as to when and how she had acquired the motor vehicle.
The
court a quo's reasoning cannot be faulted. It was based on the case
of Air Zimbabwe (Pvt) Ltd & Anor v Steven Nhuta & 2 Ors,
SC65/14 at pages 9 to 10 where ZIYAMBI JA said:
“As
to the ownership of property attached, it was alleged by the
appellants that that property belonged to Air Zimbabwe and not to Air
Zimbabwe Holdings. In support of this allegation a number of
registration books were attached to the appellants' papers. The
learned Judge determined this issue as follows:
'Applicants
alleged that the attached assets did not belong to Air Zimbabwe
Holdings against which Nhuta had a judgment, but against Air Zimbabwe
which not only was not indebted to Nhuta but also the assets for
which are immune from attachment. But not a shred of evidence was
placed before me that the assets belonged to Air Zimbabwe.
During
argument it was contended from the bar that the evidence of ownership
was in the interpleader proceedings.
It
will be remembered that until I had requested a copy of the pleadings
in those proceedings, none had been placed before me. No case
reference number had been given. Nonetheless, having perused those
papers I find that Air Zimbabwe laid claim to 20 out of 29 of the
attached vehicles and to 1 motor cycle. As proof of ownership of
those vehicles some registration books were copied and attached. From
those registration books about six of the vehicles were in the name
of “Air Zimbabwe Corporation” which could be either or both of
the applicants according to their argument that both are successor
companies. The rest of the vehicles were in the name of “Air
Zimbabwe” which again could mean either or both of the applicants.
At
any rate emblazoned on every registration book was a “WARNING”
that read: “This registration book is not proof of legal
ownership.” (My emphasis).'
I
find no fault with the above reasoning. It is trite that registration
books are not proof of ownership…”
It
is not in dispute that the appellant was a director of Plant Haven
and that when Plant Haven left first respondent's premises it
relocated to the appellant's residence, namely No. 5 Sir Herbert
Taylor Drive, Belvedere, Harare.
The
second respondent went to that address, to attach the judgment
debtor's property.
After
the attachment the appellant claimed that the motor vehicle belonged
her, hence the interpleader proceedings a quo.
As
a claimant, the appellant bore the onus of proving that the attached
property did not belong to Plant Heaven despite its having been found
in the possession of the latter. It was therefore incumbent upon the
appellant to set out facts and allegations which constitute proof of
ownership. See The Sheriff of the High Court v Mayaya and 2 Ors
(supra).
This,
the appellant failed to do.
Production
of a registration book in her name did not according to the judgment
in Air Zimbabwe Pvt Ltd v Nhuta (supra), amount to proof of
ownership. The appellant should have led real evidence of ownership
to dispel the judgment debtor's claim of ownership of the same
property.
The
claim by Plant Heaven to ownership of the motor vehicle made it
imperative that the appellant should have produced evidence in the
form of receipts or letters showing how and when she bought the motor
vehicle because the judgment debtor is presumed to be the owner of
property, attached while in his or her possession.
A
claimant in interpleader proceedings who shares possession of the
attached property with a judgment debtor who also claims ownership of
it cannot successfully rely on possession for his or her claim of
ownership. He or she must produce clear and conclusive proof of
ownership of the attached property.
In
light of the above findings, I find no fault in the court a quo's
decision that the appellant failed to prove on a balance of
probabilities that the attached property belonged to her.
GUVAVA
JA: I agree
ZIYAMBI
AJA: I agree
T.K.
Hove, appellant's legal practitioners
N.
Bvekwa, 1st respondent's legal practitioners
Kantor
& Immerman, 2nd respondent's legal practitioners
