The Sheriff for Zimbabwe v Ngaavongwe Records Private Limited and Davison Noko and Nellia Gwetsuro and Warren Karombe

### Preamble
1
HH 592-18
HC 9413/16
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THE SHERIFF FOR ZIMBABWE

versus

NGAAVONGWE RECORDS PRIVATE LIMITED

and

DAVISON NOKO

and

NELLIA GWETSURO

and

WARREN KAROMBE

HIGH COURT OF ZIMBABWE

NDEWERE J

HARARE, 25 July 2017 & 3 October 2018

Opposed Matter

T Makaka, for the applicant

B Furidzo,  for the claimant

Judgment Creditor, in person

NDEWERE J:  On 20 April, 2016, the three judgment creditors registered an arbitral award given Mr Dangarembizi on 18 February, 2016 for $3 405.36, as an order of the court in HC 2709/16.

Respondent was Gramma records.

It was in default.

On 29 April, 2016, the judgment creditors obtained a writ of execution against Gramma Records.

On 19 August, 2016, the Sheriff for Zimbabwe attached the following property:

Control 24 Digidesign Focus rite – Recording desk,

Samsun Desktops x 2, Logix Desk x2,…

Desk top x1

Korg keyboard x2

Guitas x5

Microphones x2

Fostex D5 digital Masters Recoder

Dat Player x x

Drum sets x x

Desk tops x 5

Office chairs

Office desks

Recorded music CDs x 911, +/- 5000

Music Master x 911+/- 5000

On 22 August, 2016, the Claimant claimed the goods.  The claimant said the Sheriff attached property which belonged to Ngaavongwe Records Pvt Ltd and not Gramma Records.

It said Ngaavongwe Records rented premises from Gramma Records (1981) Pvt Ltd.

It further stated that Gramma Records 1981 Pvt Ltd was incorporated  on 12 January 1981.

On 16 September, 2016, the Sheriff issued an interpleader notice, calling upon the Claimant and the Judgment Creditors to respond within 10 days giving particulars of their claims in terms of the High Court Rules.

The claimant filed an opposing affidavit on 27 September, 2016.

The judgment Creditors filed opposing affidavits on 30 September, 2016.

The opposing affidavit by the first judgment creditor, Mr Davison Noko is the one which contained details of the Judgment creditor’s basis for their opposition to the claimant’s claim.

He said the property which was attached belonged to Gramma records as it was attached in the presence of Mr E Vori, the managing director of the judgment debtor.  He said Mr Vori never indicated  at the time of the attachment that the property belonged to a third party.  He only opposed the attachment on 22 August, 2016 in support of claimant’s claim which was suggestive of collusion.  Another basis  for their opposition was that the property was attached whilst in the possession of Gramma Records.  The first judgment creditor’s argument was that if it was correct that the judgment debtor did not operate from 249 Williams Way, Msasa, then how come its Managing Director, was found at 249 Williams Way, Msasa when the judicial attachment was effected?

The first judgment creditor disputed that the property was attached from premises let out to the claimant as there was no lease agreement confirming that position.  He further stated that as far as he recalled as a former employee, Ngaavongwe did not have any assets.  They used Gramma records equipment.  He said Ngaavongwe joined the judgment debtor in music production only.  He also said the  so called asset register was a plain document which anyone could have typed.  The other two judgment creditors confirmed the facts given in the first judgment creditor’s opposing affidavit and adopted the contents of that affidavit as their own.

Despite the serious disputes of facts revealed in the judgment creditor’s opposing affidavits, the claimant did not bother to file an answering affidavit to put the record straight in case the judgment creditors were mistaken.  So all the facts given by the judgment creditors against the claimant’s claim were never disputed by the claimant.  It is trite law that what is not disputed must be taken as admitted.

Without answering to the allegations of an unmerited claim, the claimant filed its heads of argument on 19 October, 2016.  In para 6 of the heads of argument, the claimant refers to Rule 8C of the High Court Rules.  This rule provides as follows:

“subject to this Order, a person carrying on a business in a name or style other than his own name may sue or be sued in that name or style as if it were the name of an association, and rules 8a and 8 b shall apply, mutatis mutandis, to any such proceedings”

Soon after citing Rule 8c correctly as above, the claimant went on to submit that the judgment creditors obtained judgment against Gramma Records, an entity that according to the claimant’s deponent, did not exist.  She said the correct legal entity was Gramma records (1981) (Pvt) Ltd and referred to a certificate of incorporation she had attached to her opposing affidavit.  Paragraph 7 of the heads of arguments then concluded that the proceedings against Gramma Records was a legal nullity, because of the incorrect citation.

What is clear from the record of proceedings is that the judgment creditors had always related to the judgment debtor as Gramma records.  The official letter heads carried that name and their pay slips carried that name.  That is why the entity they took to arbitration was Gramma records and an award was granted in their favour.  Rule 8C actually covers their situation in that while the full name of their employer was Gramma Records (1981) (Pvt) Ltd, the judgment debtor had been “carrying on a business in a name or style other than his own name.” by leaving out the phrase” (1981) (Pvt) Ltd.” According to Rule 8C, such a person may sue or be sued in that name or style as if it were the name of an association…”

So in line with Rule 8C, the judgment creditors sued the judgment debtor using the name and style they knew. The judgment debtor never objected when it was taken to arbitration using that name. An unauthorized person in the name of the claimant cannot raise such an obligation at the execution stage when the judgment debtor itself never objected to the use of that name.

Consequently, the proceedings which resulted in the judgment debt remain valid; there is no legal basis to declare them null and void.

Paragraph 9 of the claimant’s heads of argument correctly summed up the legal position in interpleader proceedings. The position is that the onus of proof to show that claimant is the owner of the property attached is on the claimant. Claimant referred to the case of Bruce N.O v Josiah Parkies and Sons (Rhodesia) Pvt Ltd and another, 1971 (1) RLR154. The court stated as follows;

“In proceedings of this nature, the claimant must set out facts and allegations which 	constitute proof of ownership.”

The above is the correct position.

On page 157, the court continued;

“In such a case, the burden of proof is on the claimant to prove his title to the goods or 	possession thereof at the time of seizure…”

After correctly citing the law as given in the above case, the claimant’s only piece of evidence it referred to was what it called an asset register. This was attached to the claimant’s opposing affidavit. What was attached was not an original document. The original document, or actual register, if it ever existed, was not availed to the court. What was availed to the court was a photocopy of some document with two pages. It was not dated, it was not signed and it was not certified as a true copy of the original asset register. The court went out of its way to request the original asset register. It was once more furnished with the two pages, undated and unsigned. No other proof was given to the court to convince it to release the attached goods. The document provided had a list of about 70 items. No effort was made by the claimant to identify and mark what was attached from the list. The court’s view is that the claimant did not treat this matter with the seriousness it deserved. It just threw a claim at the court, and provided some list and did not bother to even clarify it or confirm its authenticity.

As correctly pointed out by the first judgment creditor, the list provided could have been typed by anyone. This means the claimant did not adduce any proof that the attached goods were Ngaavongwe’s goods. The claimant spent its energy trying to discredit the judgment creditor’s claim against the judgment debtor, instead of providing proof that the attached goods were theirs. The claimant went to the extent of suggesting that Gramma Records had no assets, yet it said they were renting their premises, which was a contradiction. The claimant said the attached goods were in their possession as lessees, yet it did not provide any lease agreement as confirmation of that position.

In view of all the above factors, the claimant’s claim must fail. Accordingly, it is ordered that;

The claimant’s claim to the property which was placed under attachment in execution of judgment  HC 2709/16 is hereby dismissed.

The property which appears in the notice of seizure and attachment dated 19 August 2016 issued by the applicant is hereby declared executable.

The claimant is to pay the judgment creditors’ and applicant’s costs on the ordinary scale.

Kantor and Immerman, applicant’s legal practitioners

Kanokanga and Partners, Claimant’s Legal Practitioners

Makuku law firm, Judgment Creditors’ legal practitioners