2. Whether or not Defendant must compensate Plaintiff for the movable property
In
paragraph 10 of her declaration, the plaintiff outlined the list of
movable property she wished to be awarded. The movable property
includes household goods and motor vehicles. The defendant's
response was to the effect that the plaintiff can have the household
goods. He ...
2. Whether or not Defendant must compensate Plaintiff for the movable property
In
paragraph 10 of her declaration, the plaintiff outlined the list of
movable property she wished to be awarded. The movable property
includes household goods and motor vehicles. The defendant's
response was to the effect that the plaintiff can have the household
goods. He however objected to the plaintiff being awarded all the
motor vehicles. He said the plaintiff can have the Toyota Prado to
keep as a family vehicle.
As
misfortune would have it, the household goods the defendant had
conceded the plaintiff could have were later on attached by the
Sherriff and disposed off to meet a judgement debt in the case Brent
Oil Africa (Proprietary) Limited v Hughber Petroleum (Private) Ltd
and Hubert Nyambuya
HC1292/12.
It
is common cause that Hughber Petroleum (Pvt) Ltd was a family
business in which both the plaintiff and the defendant were
shareholders. According to the defendant, the initial shareholding
was 70% for the defendant and 30% for the plaintiff. Later, that was
changed and the plaintiff was left with 10%. Other persons joined the
company.
The
plaintiff argued that she had nothing to do with the debt incurred by
the company and so she should be compensated in respect of the sold
property.
From
the parties pleadings, the household goods the defendant had conceded
the plaintiff could have comprised:-
(i)
3 double beds;
(ii)
1 bedroom suite;
(iii)
15 blankets;
(iv)
2x 32 inch television sets;
(v)
1 flat screen television set;
(vi)
1 gold 4 piece lounge suite;
(vii)
1 mushroom 10 piece dining room suite;
(viii)
Kitchen utensils;
(ix)
1 microwave;
(x)
1 deep freezer;
(xi)
1 upright fridge;
(xii)
1 galas room divider; and
(xiii)
A washing machine.
The
goods attached and sold by the Sheriff comprised:
(i)
1 x 10 piece dining room suite.
(ii)
1 x double door and freezer.
(iii)
Maroon lounge suite;
(iv)
1 x TV set.
(v)
1 x headboard.
Unfortunately,
not all items sold are legible from the Notice of Seizure and
Attachment filed as part of the defendant's bundle of documents.
It
is in respect of those items that the defendant had conceded that she
may take but which were subsequently sold that the plaintiff wanted
to be compensated a sum of $20,000=. No values were attached for each
individual item. It was thus not clear how the plaintiff arrived at a
globular sum of $20,000=. It is my view that where one is seeking
compensation, it is incumbent upon them to justify/prove the quantum
being claimed. The Court must be satisfied as to how such a sum was
arrived at. Even if the court were to come to a lesser figure such
must be based on the evidence adduced on how such a sum can be
arrived at.
In
his closing submissions, counsel for the plaintiff submitted that the
issue of compensation for property sold in the sale in execution was
no longer contentious as the defendant had made a material concession
that he was willing to compensate the plaintiff for the movable
property that was sold in execution pursuant. The defendant's
counsel, on the other hand, contended that this should not be
ordered. As already alluded to above, the value of the exact property
sold in execution was never proved. The defendant's concession
alluded to by the plaintiff's counsel was to the effect that if I
had the money I would compensate. He did not say he would pay
$20,000= as compensation or that he agreed with the plaintiff's
global value.
Whilst
it is true the court has wide discretion to ascertain what would be a
reasonable value, I am of the view that such discretion can only be
exercised where adequate evidence has been placed before the court.
Even a robust approach would not do justice as the approximate value
of the individual goods was never stated. The condition of the goods
was equally not disclosed and so it will be a dangerous guessing game
for the court to try to give value to the items when the parties
themselves did not do so. I thus find that the plaintiff has not
proved the value of compensation in respect of the goods the
defendant had said she could have.
It
may also be argued that the assets the court is enjoined to
distribute are assets of the spouses as at the time of distribution.
In this case, the goods in question were sold in execution of a court
judgement. This is unlike a situation where it can be said the
defendant fraudulently incurred the debt so as to deprive the
plaintiff her dues.
If,
as is common cause, the objective of distribution is to place the
spouses in the position they would have been in had a normal marriage
relationship continued between them, it follows the spouses would not
have the goods in question. Any offer to compensate would thus be out
of sheer goodwill and not out of a legal obligation. Clearly, the
circumstances obtaining are such that it would not be appropriate to
order the defendant to compensate the plaintiff in this regard….,.
1….,.
2.
The claim for compensation in respect of movable property sold in
execution is hereby dismissed.
