Itai Titus Mabutsu v K.R. Motors (Pvt) Ltd and The Officer in Charge C.I.D. Mvurwi N.O

### Preamble
1
HH 394-2012
HC 5387-2012
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ITAI TITUS MABUTSU

versus

K.R. MOTORS (PVT) LTD

and

THE OFFICER IN CHARGE C.I.D. MVURWI N.O

HIGH COURT OF ZIMBABWE

MATHONSI J

HARARE, 11 October 2012

Applicant in person

Z. Macharaga for the 1st Respondent

2nd Respondent in default

Opposed Application

MATHONSI J: This is a court application for an order directing the first Respondent to release to the Applicant a Toyota Corolla Motor Vehicle registration number AAV 2760 and the second Respondent to release the registration book of that vehicle which the second Respondent allegedly took from the Applicant ostensibly for purposes of verification of its authenticity.

The Applicant is unrepresented and, although the first Respondent is represented by counsel, counsel has submitted heads of argument which are not helpful as there appears to be a lot that is being withheld from the court.

The second Respondent did not bother to oppose the application although service of same was effected upon the second Respondent on 19 May 2012.

In his founding affidavit the Applicant stated that the owner of the vehicle, one Graham Pearson, surrendered the vehicle to him by virtue of an affidavit deposed to on 7 November 2011 which is attached to the application. That affidavit reads thus;-

“I Pearson Graham (71-102659V71) residing at 32A Birmingham Road Mvurwi, do

hereby solemnly and sincerely swear/declare the following;-

I am the bearer of the above particulars and the accused person at this matter (sic)

involving the sum of US$3 000.

This affidavit serves as restitution and collateral security in the matter between me and

Itai Mabutsu 70-153784M86. In that I do surrender my vehicle registration: AAV 2760,

Engine No. CE1344385, EE101-3120648 Toyota Corolla silver in colour registered in the

name of Clifford Marichoro (38/4Willowvale Flats Harare)

Wherefore I pray as above”

The Applicant stated that at the time the vehicle was surrendered to him in terms of the affidavit referred to above, there was a pending criminal case between himself and Graham and that in light of the vehicle offered to him, he no longer has any claims against Graham. Unfortunately, the vehicle was being kept at the first Respondent’s garage and in due course the police in Mvurwi demanded its registration book aforesaid.

He now seeks to recover the vehicle from the first Respondent and the registration book from the second Respondent.

The first Respondent opposed the application. In its opposing affidavit deposed to by Peter Mutenhaurwa, the first Respondent did not claim any right over the vehicle. Instead it sought to argue that the vehicle was left in its custody for onward transmission to an unnamed third party. It is stated that the vehicle having been passed to that third party, the first Respondent no longer has it. Mr Macharaga for the first Respondent, reluctantly conceded that the vehicle was in fact released to Graham through a relative of his.

The first Respondent went on to argue extraneously that the Applicant should have sued Graham for the recovery of the vehicle, that the deponent of the affidavit has a “contractual arrangement” with Graham binding him not to release the vehicle to anyone including the Applicant and that in the criminal proceedings Graham was ordered to restitute the Applicant and a release of the vehicle to the latter would amount to double compensation. It is stated that Graham appealed the judgment in the criminal case and for that reason the Applicant is not entitled to the vehicle.

The first Respondent has not been candid with the court as demonstrated by its failure to disclose the third party who allegedly has the vehicle. In fact I believe the  Applicant when he says that at the time he served the application on 19 May 2012, the first Respondent had possession of it. The fact that the first Respondent has seen if fit to argue a case for Graham who voluntarily signed away his rights to the vehicle, is ample proof that the first Respondent is dishonest and wants to frustrate the Applicant’s effort to recover the vehicle. The first Respondent has no business arguing Graham’s case. Significantly it has not shown any entitlement to the vehicle. I make a finding that it has the vehicle but is concealing it. It should surrender the vehicle.

In the result I make the following order that;-

The first Respondent is directed to release to the Applicant the Toyota Corolla motor vehicle, registration number AAV 2760 Engine number CE 1344385 –EE 101 Chassis number3120648 in its sound and perfect condition.

The second Respondent is directed to release to the Applicant the registration book of the said vehicle.

The first Respondent shall bear the costs of suit.

Mupindu & Mugiya Law Chambers, 1st Respondent’s Legal Practitioners