The Sheriff of Zimbabwe v Hotplate Grillhouse (Pvt) Ltd and Tatenda Building (Pvt) Ltd

### Preamble
1
HH 447 - 24
HC 1903/23
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THE SHERIFF OF ZIMBABWE

versus

HOTPLATE GRILLHOUSE (PVT) LTD

and

TATENDA BUILDING (PVT) LTD

HIGH COURT OF ZIMBABWE

CHINAMORA J

HARARE, 3 October 2024

Court Application

Ms N Mashonganyika, for the applicant

Mr T James, for the claimant

Mr E Samukange, for the judgment creditor

CHINAMORA J:

Background facts

By consent of the parties the two matters HC 1903/23 and HC 2935/23 were consolidated and were heard at the same time, mainly because the application under HC 2935/23 is an application for leave to file supplementary affidavit in case number HC 1903/23. The parties in the two applications are the same.

The proceedings before this Honourable Court relate to interpleader relief sought by the claimant in terms of the provisions of r 63 of the High Court Rules S.I. 202 of 2021. Under HC 388/22, the judgment creditor obtained judgment against Prince Mike Logistics (Pvt) Ltd. Pursuant to that judgment, the judgment creditor instructed the applicant to attach certain property. The applicant then attached 2 upright Minute Maid Cocacola refrigerators, 5 restaurant tables, 8 restaurant benches, 2 white capri deep freezer, 1 Zuva 48 kg gas tank, 1 office desk, 8 potato peeling machines, 2 grey 48 kg gas tanks, 1 white microwave stove and 1 black desktop till. It is this attachment which gave rise to the Interpleader Notice.

The judgment creditor opposed the claimant’s claim, and averred that summons was served on Prince Mike Logistics (Pvt) Ltd and an appearance to defend was entered by one Benson Muneri. Judgment was subsequently obtained. The judgment creditor submits that the documents for Prince Mike Logistics (Pvt) Ltd were furnished to it by one Benson Muneri. Consequently, the judgment creditor is not sure of the motive of Benson Muneri in seeking ownership of the attached goods through Hotplate Grillhouse (Pvt) Ltd. According to judgment creditor, there is apparent collusion between Prince Mike Logistics (Pvt) Ltd and Hotplate Grillhouse (Pvt) Ltd, and that Benson Muneri is their alter ego.

On the other hand, the claimant’s case is that in the process of executing the judgment debt, the applicant attached movable goods and tools which belong to it and not Prince Mike Logistics (Pvt) Ltd. To support its claim of ownership, the claimant attached Annexure “C” series, which comprises of receipts for the items which the applicant seized. Subsequent to that, the claimant filed a chamber application for leave to file a supplementary affidavit under case number HC 2935/23. I had no difficult in granting the chamber application as will be shown below. The claimant averred that it has a lease agreement with the judgment creditor in respect of premises known as 19 Robson Manyika Avenue, Harare. Additionally, the claimant submits that it took over the premises from its former franchise, who is the judgment debtor under case number HC 388/22, who moved out of the premises due to failure to keep its business afloat. The judgment creditor opposed the application and in essence denied ever dealing with the judgment debtor. Besides, the judgment creditor raised a preliminary point arguing that there was no application before the court since the chamber application is not in Form No. 25 or Form No. 23 of the High Court Rules.

I will deal with the preliminary point first before delving into the merits of the case. The Rules provide that, ordinarily, no application should fail on the basis of form. I notice that the judgment creditor did not allege that it has suffered or will suffer any prejudice as a result of the failure to use the correct form. The claimant served a copy of the chamber application on the judgment creditor, who filed its opposing affidavit and heads of argument. In this regard, I am prepared to condone the adoption of incorrect form. See Nyarota v ANZ HH 591-15.

On the merits, it is settled law that when considering an application by a party for leave to file a supplementary affidavit, the court is called upon to exercise a judicial discretion. In the exercise of this discretion, it is a fundamental consideration that the dispute between the parties be adjudicated upon all the relevant facts pertaining to the dispute. See United Refineries Limited vs. The Mining Industry Pension Fund and Ors SC 63-14. In light of the above, my view is that in order for the dispute between the parties to be properly ventilated, the supplementary affidavit be allowed. I will not restate the contents of the supplementary affidavit solely because the essentials of its contents have been captured in claimant’s case above.

The law on interpleader proceedings

The law relating to interpleader proceedings is settled. A claimant must set out facts and allegations which constitute proof of ownership. In Sabarauta v Local Authorities Pension Fund and the Sheriff SC 77-17 Uchena Ja appositely noted that:

“Interpleader proceedings are instituted by the Sheriff in respect of property attached by him when a third party claims ownership of that property. In such proceedings, it is necessary for the party claiming the attached property to prove ownership by clear and satisfactory evidence.”

See also Welli-Well (Pvt) Ltd v Imbayago and The Sheriff of Zimbabwe SC 8-21.

Furthermore, in Sheriff for Zimbabwe v Mahachi and Leomarch Engineering HMA 34-18 Mafusire J pertinently stated that:

“One common thread running through such cases, and several others on the point, is that there is a rebuttable presumption that where someone is found in possession of movable goods, they are presumed to be the owner of that property. Where someone else other than the possessor claims to be the owner of those goods, they have the onus to prove, on a balance of probabilities, that they are the owner. There are no hard and fast rules on how they may go about proving such ownership. Every case depends on its own facts. The claimant may have to have to produce some evidence, such as receipts or other documents, if available, to prove ownership. A bald assertion that they are the owner is not enough.” [My own emphasis]

Analysis of the case

It is not in dispute that the items attached by the applicant were in possession of the claimant. Furthermore, the claimant attached to its opposing affidavit (Annexure “C”), receipts as evidence that the items attached by the applicant were purchased by the claimant. In my view, Annexure “C” series clearly and satisfactorily refutes the allegation collusion between the claimant and the judgement debtor. I am satisfied that the claimant has made a credible case that the it is the owner of the attached goods, and is entitled to the relief that it seeks.

Disposition

Accordingly, I make the following order:

The claimant’s claim to movable properties attached by the applicant pursuant to execution of judgment in HC 388/22 be and is hereby granted.

The movable property attached by the Sheriff and listed in this paragraph be and is hereby declared not executable. The property is: 2 upright Minute Maid Cocacola refrigerators, 5 restaurant tables, 8 restaurant benches, 2 white capri deep freezer, 1 Zuva 48 kg gas tank, 1 office desk, 8 potato peeling machines, 2 grey 48 kg gas tanks

The judgment creditor be and is hereby ordered to pay storage costs associated with the attachment and seizure of the goods referred to in paragraph 2 of this order.

The judgment creditor be and is hereby ordered to pay claimant and applicant’s cost of suit.

Chinamora J: ........................................................................

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

Cyprian’s Law, claimant’s legal practitioners

Samukange Hungwe Attorneys, judgment creditor’s legal practitioners