The Sheriff of Zimbabwe and Garikai Herbert Kuipa v Scanlink (Private) Limited

### Preamble
1
HH 532-18
HC 4608/17
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THE SHERIFF OF ZIMBABWE

and

GARIKAI HERBERT KUIPA

versus

SCANLINK (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

KWENDA J

HARARE, 19 July & 19 September 2018

Opposed application

F Mabungu, the applicant

R Muchirewisi, for claimant

T Chivale, judgment creditor

KWENDA J: The applicant is the Sheriff. Garikai Hebert Kuipa and Scanlink(Pvt) Ltd are the claimant and judgment creditor respectively. On 6 February 2015 this court issued a writ of execution against the movable property of Lexliner Logistics (Pvt) Ltd following judgment in case in HC 4989/14. Pursuant to the writ, on 5 August 2016, the applicant (the Sheriff) attached two buses registration numbers ADZ 4383 and ADC 0394 found in the judgment debtor’s possession at its garage. Bus, registration No, ADZ 4383, was quickly removed and sold in execution and no issues arose.

The bus, registration ADC 0394, was not immediately removed. It remained under judicial attachment at the judgment debtor’s premises for almost a year. The applicant removed it on the 15 May 2017 for sale in execution. A day later Garikai Hebert Kuipa claimed the bus, thus commencing these interpleader proceedings.

The claimant’s affidavit founding the claim is very brief. He submitted the following documents

A single page document on the letterhead of N B Chikwanha’s t/a Vazungu Investments as proof that he purchased the bus from N B Chikwanha t/a Vazungu Investments on 29 April 2015. The purchaser is described as Garikai Herbert Kuipa of 6552 Westlea Harare.The purchase price is stated as $65 000 of which a deposit of $30 000 was paid. The agreement bears signatures of the claimant, certain Cephas Gonde and Ignatius Chikwanha.

A receipt dated 6 May 2015 on the letter head of Nelch Investments (Pvt) Ltd acknowledging payment of $15 000 paid for an IRIZAR bus registration No. 0394.

Another receipt for $10 000 on the letter head of Nelch Investments.

A registration book for the bus in the name of Nelch t/a Vazungu Investments.

The applicant commenced these proceeding upon receipt of the claim. The claimant

filed a notice of opposition in response to the interpleader notice. The opposing affidavit is even shorter in that the claimant simply asserts that he is the owner of the bus and stands by the documents submitted by him.

The judgment creditor opposed the claim. The following grounds of opposition stated in the opposing affidavit and in argument were not controverted by the claimant.

The bus is labelled Lexliner Logistics

Lexliner Logistics is the trade name of the judgment debtor.

The bus was attached at Stand 6567 Westlea Harare.

6562 Westlea Harare is where the judgment debtor conducts its business from.

The claimant does not explain in his affidavit what a bus belonging to him was doing at judgment debtor’s garage.

The claimant does not explain why a bus belonging to it would be marked with the judgment debtor’s trading name and address.

The claimant did not claim the bus for ten months.

The registration book does not prove that claimant is the owner.

In argument claimant’s counsel conceded that the fact of the possession of the bus by the judgment debtor gave rise to the presumption that it was the owner. See Sheriff of the High Court v Munyaradzi Yutimi Majoni & Anor HH 689/15.

It is trite that a claimant must prove ownership on a balance of probabilities. See Sheriff of the High Court v Shepherd Mayaya & Ors HH 494/1. The uncontroverted evidence and arguments already stated tended to strengthen the presumption already operating against him.

If indeed the bus belonged to him, he would have taken the initiative to explain what his bus was doing in the judgment debtors’ possession and marked with the latter’s trade name address. The claimant does not state in its papers or argument that it is, associated with the brand, Lexliner Logistics. He would have taken the initiative to explain why the bus was not registered in his name and why he did not start these proceedings for ten months and yet another bus which he claims belonged to him had been removed and sold in execution.

The evidence submitted by the claimant is not credible. The contract of sale purports to be between one N. B Chikwana trading as Vazungu Investments (seller) and the claimant. The subsequent receipts for payments purport to have issued by Nelch Investment (Pvt) Ltd. The claimant’s affidavit does not explain the relationship between the two persons namely N.B Chkwana t/a Vazungu Investments & Nelch Investments (Pvt) Ltd.

The registration book is in the name of Nelch trading as Vazungu Investments which is not the same person as the seller. Once again, the claimant does not explain the discrepancy

In the face of all the above facts weighing against its claim and inadequacies in argument claimant’s counsel persisted with the claim. I am satisfied that the claim is frivolous and to a deliberate harassment of the judgment creditor who is entitled to satisfaction of a judgment debt. Claimant ought to have known that his claim is an abuse of process. I therefore dismiss it with costs on a higher scale.

It is ordered as follows:

The claimant’s claim to a bus registrar No. ADC 0390 attached by the applicant in execution of judgment HC 4889/14 be and is hereby dismissed.

The aforementioned bus attached and seized on 5 August 2016 is declared executable.

The claimant shall pay the judgment creditor’s and applicant’s costs on a legal practitioner client scale.

Dube-Banda, Nzarayapenga & Partners, applicant’s legal practitioners

Muchirewesi and Zvenyika Legal Practitioners, claimant’s legal practitioners

V Nyemba and Associates, judgment creditor’s legal practitioners