MATHONSI
JA: This
is an appeal against the whole judgment of the High Court handed down
on 23 July 2020 which declared the first respondent the rightful
owner of a Cat Caterpillar Dump Truck 769C. The Caterpillar was
purchased by the first respondent at a judicial auction conducted by
the Sheriff on 18 October 2019 at Devuli Farm in Bikita.
After
hearing arguments we issued the following order:
“1.
The appeal be and is hereby dismissed.
2.
By consent, the appellant shall pay costs at the ordinary scale.
3.
The reasons for judgment will be delivered in due course.”
What
follows hereunder are the reasons for judgment.
FACTUAL
BACKGROUND
The
Zimbabwe Electricity Transmission and Distribution Company (ZETDC)
obtained judgment against Nan Jiang Mine (Pvt) Ltd in case number
HC564/17. In due course a writ of execution was issued against its
property and the Sheriff was instructed to sell the property in
execution of the judgment of the court.
The
Cat Caterpillar which now forms the basis of this appeal was one of
the properties placed under attachment on the instructions of
Chihambakwe, Mutizwa and Partners, the legal practitioners
representing ZETDC. The sale of the properties was duly advertised
for 18 October 2019. It was to be conducted in
situ
at Devuli Farm, in Devuli Range, Bikita.
On
that date the first respondent participated at the auction and made a
bid for the caterpillar.
He
was declared the highest bidder and paid the sum of $141,500.00 as
the purchase price for it. He could not immediately collect it after
the sale as he had to return to his home in Gweru to make
arrangements for transport to convey it to his place.
Upon
the first respondent's return to the site on 3 November 2019, he
found that the first appellant had removed the Caterpillar and taken
it away to an address in Southerton, Harare. After lodging a criminal
complaint with the police, the first respondent filed an application
at the High Court in Masvingo for a declaratory order that he was the
lawful owner of the Caterpillar. The first respondent also sought
consequential relief that it be transported to his address in Gweru.
The
basis of the application was that the first respondent had lawfully
purchased the machine at an auction conducted in accordance with the
law. The first respondent contended that he concluded a valid sale
agreement with the Sheriff which had the effect of transferring
ownership to him. The conduct of the first appellant in removing his
property to a location in Harare was unlawful.
In
opposing the application the appellants raised a number of issues not
relevant in the determination of this appeal. What was germane to the
dispute was their contention that after receiving information of the
pending auction they made arrangements to settle the judgment debt
and the Sheriff's costs.
In
that regard, the appellants stated that they had paid to the judgment
debtors legal practitioners a sum of money which cleared all that was
due in terms of the judgment of the court.
They
alleged that full payment was made on 18 October 2019, the very date
of the auction sale. In their view, it was then incumbent upon the
Sheriff to immediately stop the sale in execution and release their
property from the shackles of attachment.
It
was further contended by the appellants that proceeding with the sale
when the judgment debt, together with the Sheriffs costs, had been
liquidated yielded an invalidity. For that reason the first
respondent could not enforce a nullity.
The
court a
quo
found that, notwithstanding the appellants' frantic but belated
effort to clear the debt, the judgment creditor had accepted the
proceeds of the sale from the Sheriff. It found that the judgment
creditor had so accepted the proceeds because the appellants had been
untruthful. More importantly, the court a
quo
found that the correspondence from the judgment creditor's legal
practitioners purporting to stop the sale had only been received by
the Sheriff on 30 October 2019, several days after the auction.
Accordingly, there had been no attempt to stop the sale by auction.
In
light of that, the court a
quo
concluded that due process had been followed in executing the sale.
As such the court could not interfere with the judicial sale. It
granted the application for a declaratory order and consequential
relief.
THE
APPEAL
The
appellants were aggrieved by that turn of events. They noted an
appeal on six grounds.
The
first three grounds of appeal seek to impugn the court a
quo's
finding that the first respondent was the rightful owner of the
Caterpillar on the basis that the auction sale was invalid. It ought
to have been stopped because the debt had been cleared.
The
remaining grounds which seek to attack the judgment a
quo
on an alleged “serious dispute of facts”, and the alleged
citation of a non-existent litigant are clearly extraneous.
This
is in light of the court a
quo
having resolved any perceived disputes on the papers and the fact
that the appellants' complaint that the property belonged to Nan
Jiang Africa Resources (Pvt) Ltd and not Nan Jiang Mine was
misplaced.
If
indeed that was the case, the appellants, or is it Nan Jiang Africa
Resources (Pvt) Ltd, had an alternative remedy. It should have made a
claim to the property before it was sold. That way the Sheriff would
have instituted interpleader proceedings.
It
was not open to the present appellants, not being Nan Jiang Africa
Resources (Pvt) Ltd to use the alleged misjoinder to try and ward off
the enforcement of the sale agreement.
Only
one issue emerges from the remaining grounds of appeal. It is whether
the first respondent and the Sheriff concluded a valid sale on 18
October 2019.
WHETHER
THERE WAS A VALID SALE
Two
critical principles are central in the determination of this appeal:
(i)
First, where the lower court has made factual findings in resolving
the dispute between the parties, as a general rule, an appellate
court will not interfere with such findings unless they are grossly
unreasonable to the extent that no reasonable tribunal applying its
mind to the same facts could have reached that conclusion.
It
is sometimes said that for the appellate court to interfere with
factual findings such finding must be irrational. The finding
complained of must be so outrageous in its defiance of logic or of
accepted moral standards that no sensible person who had applied his
or her mind to the question to be decided could have arrived at such
a conclusion. See Hama
v National Railways of Zimbabwe
1996 (1) ZLR 664 (S) at 670C-E; Metallon
Gold Zimbabwe v Golden Million (Pvt) Ltd
SC12/15.
The
court a
quo
made a factual finding that despite the electronic mail from
Chihambakwe, Mutizwa and Partners bearing the date of 18 October
2019, it was only delivered to the Sheriff on 30 October 2019.
This
was 12 days after the sale.
It
was not suggested either before the court a
quo
or this Court that the legal practitioner had used any other means to
communicate their instruction to suspend the sale.
I
mention in passing that a diligent person, be it the debtor or the
legal practitioner, would have contacted the Sheriff by telephone to
alert him of the settlement of the debt. This is so because on the
date of the alleged payment, an auction was taking place, to the
knowledge of all concerned.
The
court a
quo
cannot be faulted for finding that the auction sale was not stopped
and the writ of execution was never withdrawn.
In
the absence of evidence of stopping the sale timeously and/or
withdrawing the writ from the Sheriff, it follows that a valid sale
was conducted on 18 October 2019.
It
led to the lawful transfer of ownership in the caterpillar to the
first respondent.
In
addition, the court a
quo
made a finding that in fact the appellants' claim that they paid
off the debt was not established.
This
is because the judgment creditor had accepted payment of the proceeds
of the sale from the Sheriff.
I
should add that in arriving at that conclusion, the court a
quo
had examined correspondence between the Sheriff and the judgment
debtor's lawyers. It also had the benefit of the Sheriff's
report.
Submissions
made on appeal on behalf of the appellants do not come anywhere near
suggesting that those factual findings were irrational.
In
my view they are sound and based on credible evidence. No basis for
interference is established.
(ii)
The second principle central to the determination of the appeal is
that courts of law will not readily interfere with judicial sales in
execution in order to protect their efficacy especially after
confirmation or transfer. See Kanoyangwa
v Messenger of Court & Others
SC68/06.
The remarks of this Court in Walezim
Investments (Pvt) Ltd v The Sheriff of the High Court
SC44/21 are opposite:
“Sales
in execution should not be easily interfered with after they have
been confirmed because this can render the execution process nugatory
as the general public will lose confidence in the same. Judgment
debtors are given ample time to settle their debts and if they fail
to utilize such opportunities they should not be allowed to frustrate
the consequent process that follows.”
In
my view, the court a
quo
was correct in finding that due process was followed in conducting
the sale. The sale could not be interfered with on the fanciful
reasons advanced by the appellants. There is demonstrably no merit in
the appeal.
On
the issue of costs, Mr Sithole
who appeared for the appellants made a tender of costs on the
ordinary scale.
The
view of the court is that the tender was properly made.
I
should point out that after the interventions of the court, Mr
Sithole could not advance any meaningful argument to motivate what
was clearly a meritless appeal. His hands were however, tied in that
his instructing counsel restrained him from making any further
concessions.
It
is for these reasons that we issued the order set out above.
BHUNU
JA: I
agree
CHIWESHE
JA: I
agree
Magaya
& Mandizvidza,
appellant's legal practitioners
Kwiriwiri
Law Chambers,
1st
respondent's legal practitioners
