The Sheriff of Zimbabwe v Victor Kuslya and Larisa Purysheva and Angelos Investments and Oneski Iemelianov and Abel Jonathan Peters and Stephen Hove

### Preamble
1
HH531 -18
HC 8615/17
---------


THE SHERIFF OF ZIMBABWE

versus

VICTOR KUSLYA

and

LARISA PURYSHEVA

and

ANGELOS INVESTMENTS

and

ONESKII IEMELIANOV

and

ABEL JONATHAN PETERS

and

STEPHEN HOVE

HIGH COURT OF ZIMBABWE

KWENDA J

HARARE 18 July & 19 September 2018

Opposed application

Ms F Gororo, for the applicant

M F Chapeta, for the claimant

P Kawonde, for the judgment creditor

KWENDA J: On 12 July 2017 this court issued a writ of execution against the movable property of DTZ EZOGEO (Pvt) Ltd pursuant to a judgment obtained against it in case No. HC 3162/17. Notwithstanding the address for execution being stated in the writ of execution as 14168 Griffin Road, Gun Hill Harare, the judgement creditor directed the applicant (sheriff) to 29 Windmill Lane Quinnington, Harare being the judgment debtor’s new place of business. On 25 August 2017 the applicant proceeded to 29 Windmill Lane Quinnington, Harare where he placed seven vehicles described below under judicial attachment

Elgrand ADU 5341

Vito Benz AEC 9645

VW Toureg ABI 7460

CRV ACW 2563

Camping Bus ACT 5822

Boat AAY 6443

On 29 August 2017 one Oleg Sokolov submitted an affidavit to the applicant claiming all the vehicles on behalf of other persons as follows:

Vehicle					Owner

Elgrand ADU 5314, 				Abe owner Jonathan Peters

Vito Benzi, AEC 9645 			Victor Kuslya

VW Toureg AEF 7309 			Lavisa Parysheva

CRV Honda CAN 563 			Angelas Investments

Caravan AEF Tata Caravan AEF 7308 	Lavisa parysheva Roasthe

Boat AAY 6443 				Oloskii Lemehanov.

It will be noted that the registration numbers for the VW Toureg and Camping bus (Tata Caravan) being AEF 7309 and AEF 7308 differ from those quoted by the applicant on the Notice of Seizure which are ABI 7460 & ACT 5822 respectively. The said Oleg Sokolov does not claim any of the vehicles for himself. He stated that the property where the attachment took place is his rented residential premises and attached a lease agreement as proof to that effect. The written lease agreement expired on 31 October 2016.

The claim is opposed by the judgment creditor. The thrust of the opposition is that the claim is malafide because Oleg Sokolov was not candid with the Court. He averred as follows his affidavit founding the claim

“6. Claimant hereby applies to the Sheriff….. to issue on a interpleader notice to stop 	removal and sale in execution of the claimant’s properties which were mistakenly 	attached…I was in physical control and use of the properties at the time of their attachment 	at my personal rented residence.

7. It appears from the writ of execution that the attached properties were attached pursuant to a judgment debt, judgment debtor owes to the judgment creditor.

8. It has come to my attention that the main matter giving rise to the instant proceedings is the matter under cross reference HC 3162/17. The judgment debtor is being sued for a claim that is unknown to me.

9. The properties …… are owned by the claimants herein. The truth of the matter is claimants owned shares in Econandra Ltd, a Russian registered company which owned shares 	in DTZ OZGEO (the judgment debtor). Eonantra Ltd has since sold its equity in DTZ OZGEO to ZDDC (a company) which has assumed all debts owed by the judgment debtor.

Claimant is not a judgment debtor in the said case, the property attached is personal private property and has nothing to do with the judgment against DTZ OZGEO.”

The affidavit then proceeds to list the registered owners of the cars and to emphasise that there is no justification to execute on the property belonging to those persons.

I must observe that the affidavit of Olg Sokolov raises more questions than answers.

Oleg Sokolov does not explain why he submitted the claim when on the papers he has no interest in the outcome. The heading of the application speaks for itself and Oleg Sokolov is not a cited as an applicant yet he prays for a relief. On the same date that Oleg Sokolov submitted his claim, all the persons cited as applicants in the application submitted what they termed supporting affidavits. 3rd claimant is a company and a company resolution dated 28th August 2017 authorised Oleg Sokolov to act for it. Accordingly Oleg Sokolov’s affidavit is deficient in that it does not reveal why as an uninterested party he was acting for other persons with capacity to act.

The averment by Oleg Sokolov that he gleaned/ only became aware of the judgment debt and identity of the judgment debtor from the writ is false. He is a director of the judgment debtor. His averment that the debt and the judgment debtor are unknown to him is therefore false and deplorable. The averment by Oleg Sokolov’s that ‘claimant’ is not a judgment debtor in the …. case …..” betrays the fact that he is the actual claimant and has an interest in the matter and the vehicles, in all probabilities in his capacity as director of the judgment debtor.

Indeed the persons mentioned by him submitted supporting affidavits to support his claim. It is basic that an applicant or claimant submits a founding affidavit and not a supporting affidavit.

Oleg Sokolov accepts that he was using the vehicles and had control of the vehicles at the time they were attached. He does not explain the circumstances under which he had control and use of seven vehicles belonging to other people. The owners do not shed light in their supporting affidavits.

All the vehicles were the property of the judgment debtor prior to registration of ownership being changed to the various persons mentioned by Oleg Sokolov. (In those cases when ownership has been proved to have changed).

The cogency of the documentary evidence will be analysed in light of the background to the matter.

On 20 December 2016 the judgment creditor obtained an arbitral award against DTZ OZEGEO (Pvt) Ltd. The award was registered as an order of the High Court for execution purposes on 8 May 2017.

1st claimant, Victor Kuslya claims Mercedes Benz. The registration book submitted by him shows that ownership was changed from judgment debtor to him on 16 June 2017 at Mutare. The address where the vehicle is to be ordinarily kept is 3 Blesbole Road Murambi Mutare. The change of ownership took place after the arbitral award had been granted. There is no explanation why their vehicle was not in Mutare but in the custody of Oleg Sokolov, a director of the judgment debtor.

2nd claimant claims VW Toureg registration no. ABI 7460 and the Camping bus (caravan registration no. ACT 5822.	Ownership of both vehicles was transferred from the judgment debtor to the 2nd claimant on 8 March 2017. That was after the arbitral award. The addresses were the vehicles were to be kept is given as 877 Andevour Crescent Mt Pleasant. The new registration plates were not affixed to the vehicles. It is not clear how Oleg Sokolov got knowledge of the new registration plates which were not affixed to the car, something that would be peculiarly known by the 2nd claimant. Further there is no explanation by 2nd claimant why the vehicle was not in his custody but in the custody of Oleg Sokolov who is a director of the judgment debtor. Actually the Court had to adjourn the proceedings to allow the claimant’s counsel to take instructions because he was failing to match the new registration numbers to any of the vehicles attached by the Sheriff.

Oleg Sokolov submitted an affidavit on behalf of the third claimant, a company. Oleg Sokolov’s relationship with the 3rd claimant is not explained anywhere. The shareholders and directors of the third claimant are not disclosed. However the address on the registration book is the former trading office of the judgment debtor. There is a close relationship amongst third claimant, the judgment debtor and Oleg Sokolov.

4th Claimant claims the boat registration No AAY 6443 and submitted a registration book. The registration book shows that the ownership of the Coastline boat was changed from judgment debtor to OLEKSII (May be referring to fourth claimant).

The address for this boat is 14168 Griffin Road Gunhill, Harare which is the judgment debtor’s previous address. Once again, no explanation is given why the boat would was in the custody of Oleg Sokolov if it belonged to fourth claimant.

Fifth claimant claimed the Nissan Elgrand ADU5341. He submitted a registration book with the page which normally contains the name of the registered owner missing. The registration book was not of any evidential value.

The analysis given by this Court to the affidavit and documentary evidence submitted in support of the claims by Oleg Sokolov is informed by the averments in the judgment creditor’s opposing affidavit. The thrust of the opposition is that there was a systematic effort to strip the judgment debtor of assets as soon as the arbitral award was granted against it. It was inevitable that the award would be registered for execution purposes. While the process of registration of the award was underway, registration of the vehicles was changed but effective control of the vehicles remained with Oleg Sokolov who is a director of the judgment debtor.

I therefore conclude that the evidence submitted in support of the claim is not cogent, is fabricated and therefore reject it.

Courts are slow to award costs on the higher scale. However, the conduct of an applicant who submits an affidavit lying though his teeth in order to defeat the effectiveness of a court order, is deplorable. Such conduct is not only a waste of the court’s time but highly contemptuous. Such conduct invariably deserves censure.

I therefore dismiss the claims with costs on the higher scale. I order as follows:

The claimants’ various claims to the vehicles attached on 25 August 2017 being Nissan Elgrand ADU 5341, Mercedes benz Vito AEC 9645, VW Toureg Registration No. ABI 7460 (or AEF 7309), Caravan Tata Camping bus Registration No. ACT 5822 (or AEF 7308), Honda CRV CAN 2563 are hereby dismissed.

The vehicles are executable in Case No. HC 3162/17.

The claimants shall pay the judgment creditors costs as well as the applicant’s costs on a legal practitioner client scale jointly and severally one paying the others to be absolved.

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

Antonio & Dzvetero, claimant’s legal practitioners

Kawonde Legal Services, judgment creditor’s legal practitioners