Dean Benjamin Martin and Muzaffar Khan v The Sheriff of Zimbabwe and Smit Investments Holdings SA Proprietary Limited t/a Gecko Projects and Ganet Mining Proprietary Limited and Judicial Service Commission

### Preamble
1
HMT 73-19
HC 193/19
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DEAN BENJAMIN MARTIN

and

MUZAFFAR KHAN

versus

THE SHERIFF OF ZIMBABWE

and

SMIT INVESTMENTS HOLDINGS SA PROPRIETARY

LIMITED t/a GECKO PROJECTS

and

GANET MINING PROPERIETARY LIMITED

and

JUDICIAL SERVICE COMMISSION

HIGH COURT OF ZIMBABWE

MUZENDA J

MUTARE, 21 October and 31 October 2019

Opposed Application

G Lock with Mrs Y Chapata, for the applicants

M Moyo, for the 1st and 4th respondents

A Moyo with G Sithole, for the 2nd and 3rd respondents

MUZENDA J: The two applicants (Dean Benjamin and Muzaffar Khan) are seeking an order particularised on the draft along the following format:

“IT IS ORDERED THAT:

The 2nd and 3rd Respondents are hereby ordered to restore possession of the Volvo A 30 D Dump Truck to the Applicants within 48 hours of being served with this order.

Failing compliance with the order in (1) above, the 1st Respondent is hereby ordered to enforce the order in (1) above and restore possession of the Volvo A 30 D Dump Truck to the Applicants, forthwith.

The Respondents jointly and severally one paying the others to be absolved, are hereby ordered to pay Applicant’s legal costs on a legal practitioner/client scale.”

Application

According to applicants’ prayer the application is for a spoliation order, alternatively for vindication or a lien. If one fails the other alternatives should succeed.

Facts

A certain company known as Pungwe Mining (Private) Limited, obtained a judgement against Mbada Diamonds. The Sheriff of Zimbabwe, first respondent was duly instructed to attach certain assets at Mbada Diamonds Mine premises in execution of the said judgment. Among the attached assets was the Volvo A 30 Dump Truck belonging to second and third respondents. On 24 January 2017, the second and third respondents instituted interpleader proceedings objecting to the attachment of the Volvo truck.

Flowing the institution of the interpleader proceedings at the instance of the second and third respondents the execution process did not stop. On 7 April 2017 the first respondent, despite being in possession of the second and third respondents interpleader claims, proceeded with execution by public auction, at that public auction sale the applicants bought the Volvo truck for $25 300-00 United States Dollars. The High Court at Harare under judgment HH 668/17 found against the second and third respondents on the interpleader summons. However, the second and third respondents successfully appealed to the Supreme Court, which subsequently set aside the High Court judgment and allowed the second and third respondents’ claims under SC 38/18. In effect the Supreme Court substituted the order of the High Court and declared second and third respondents owners of the assets including the Volvo truck and declared such assets non-executable.

After succeeding in the Supreme Court, the second and third respondents caused a writ of delivery to be issued out of the High Court under case No. HC 609/17. Having obtained the writ, first respondent proceeded to attach the Volvo truck from applicants’ agent in Harare where it was on display for sale, and delivered same to the second and third respondents. The applicants have thus brought the current application complaining about the repossession of the truck by the second and third respondents. To the applicants the Volvo truck was unlawfully retrieved from them and they are the best candidates for a mandament van spolie.

The issues for determination by this court were well spelt out by Mr G. Lock for the applicants. They are:

Whether or not the applicants were unlawfully dispossessed.

Whether or not the applicants acquired ownership of the Volvo truck.

Whether or not the applicants have a lien over the Volvo truck.

WHETHER OR NOT THE APPLCIANTS WEE UNLAWFULLY DISPOSSESSED

It was submitted by Mr Lock on behalf of the applicants that they did not consent to the deprivation neither did second and third respondents use lawful means in acquiring the vehicle. He proceeded to cite the case of Stocks Housing (Cape) Pty Ltd v Chief Executive Director, Department of Education and Culture Services where the court opined that spoliation may be unlawful because it was by force or by threat of force, or stealth, deceit or theft, but in all cases spoliation is unlawful when the dispossession is without consent of the person deprived of possession. Mr Lock in addition also cited Amler’s Precedents of Pleadings where the learned authors defined unlawfulness to mean a dispossession without the plaintiff’s consent or due legal process (my own emphasis). To the applicants the deprivation of the Volvo truck was unlawful on the basis of the fat that the second and third respondents knowingly made use of a writ of delivery which was not operative against the applicants to acquire the Volvo truck. They submitted that the second and third respondents acted unlawfully when they used the writ of delivery which was directed at Pungwe Mining (Pvt) Ltd. It was also the argument on behalf of the applicants that there is no judgment against both applicants which authorised the first and second and third respondents to recover the vehicle from the applicants, the use of the writ of delivery hence amounted to a despoliation as they did not follow due legal process. The applicants were supposed to be heard, it was contented by their attorney and failure by the respondents to afford the applicants to be heard first deprived the applicants of their constitutional right.

The applicants further submitted that for the second and third respondents to succeed in opposing the application for spoliation they must raise a denial of the facta prob anda, or impossibility of restoration, or counter-spoliation or failure to act within a reasonable time. The applicants submitted that none of these four was proved by the second and third respondents and that they should all be dismissed. They prayed that this court order the release of the vehicle back to the applicants on the ground of spoliation.

Mr A Moyo who appeared on behalf of the second and third respondents submitted that for the applicants to succeed in getting a spoliation order, they have to show firstly that they were in peaceful and undisturbed possession and secondly, that they were unlawfully dispossessed. Second and third respondents forcefully submitted that the issue of ownership was resolved by the Supreme Court and that should close the debate on the aspect of who owns the Volvo truck. On the issue of the writ of delivery, second and third respondents contend that the applicants did not, or are not impugning validity of the writ. They are just attempting to challenge the legality of its use against them. The writ of delivery, according to second and third respondents, is grounded on a valid Supreme Court judgment. Hence second and third respondents, concluded in their submission on that point by stating that the repossession which was dome in terms of a valid writ is lawful and constitutes due process, and as such the repossession of the Volvo truck from the applicants was done lawfully. The second and third respondents added further that the writ of delivery was not limited to recovery from Pungwe Mining but against all sundry who must be holding the Volvo truck and the writ of delivery complied with r 322 of the High Court Rules 1971 and second and third respondents used form No. 39 pursuant to a valid judgment. It was not necessary for the applicants to be part of the proceedings both in the High Court and Supreme Court which matters dealt with the interpleader, second and third respondents submitted and quoted the matter of Anglican Church of the Province of Zimbabwe v Anglican Church of the Provicne of Central Africa and The Deputy Sheriff. The second and third respondents insist that the applicants did not meet the requirements for a spoliation order and pray that the application implode on that basis.

The first and fourth respondents indicated that they will abide by the court’s decision but however filed supplementary heads of argument addressing the issue of costs, which will be dealt with later in this judgment.

In resolving the question of whether or not the applicants were unlawfully dispossessed, it is necessary to relook at the chronology of events as amply outlined by the parties. On 24 January 2017 the second and third respondents filed interpleader proceedings in this court specifically to determine the issue of ownership of the Volvo truck, the matter qualified to be basically pending determination and it was incumbent upon the first respondent, to suspend all proceedings, including the sale in execution.

Order 30, r 211 provides as follows:

“if an interpleader notice is issued by a defendant in an action, proceedings shall be stayed pending a decision upon the interpleader, unless the court upon an application made by any other party to the action otherwise orders.”

Rule 208 further clarifies the matter as follows:

“There shall be delivered with the interpleader notice an affidavit stating that the applicant

Claims no interest in the subject matter in dispute other than for charges and costs.

Does not collude with any of the claimants

Is willing to deal with costs or act in regard to the subject matter of the dispute as the court may direct.”

I am satisfied that the conduct of the first respondent mischievously went against order 30 rule 211 of the High Court Rules. The subsequent sale in execution conducted by the first respondent was not properly conducted, it falls short of complying with the Rules of this court. It is important to also note the public auction sale of 7 April 2017 was done by the first respondent when he was fully aware that an interpleader summons was pending litigation. This sale conducted by the first respondent saw the birth of the applicants’ claim of ownership of the Volvo truck. Once it is accepted by the applicants that there was an interpleader summons pending at the High Court as at 7 April 2017, the sale by public auction in such circumstances cannot be held as a result of a judicial process. The sale is a legal nullity. The issue of “ownership” does not smoothly flow from such a sale because there was no judicial process. I do agree with Mr G Lock for the applicants in tandem with the host of cases he cited that where a buyer purchases an item at a public auction he is a bona fide owner of the property, however in this case the purported sale of the Volvo truck does not qualify in my view to have been acquired from such an auction. The 7 April 2017 sale was not a legal sale.

I am more fortified on this position by the order of the Supreme Court under case number SC 33/18 involving the second and third respondents who were the appellants in that appeal. In that case the Supreme Court declared second and third respondents the owners of the subject Volvo truck among other assests. After the outcome of the Supreme Court order a writ of delivery was issued by this court and the first respondent proceeded to attach the Volvo truck and delivered it to the second and third respondents. The Supreme Court also clearly declared that the Volvo truck and other items on the list were non-executable. That judgment is extant, its writ of delivery is extant and the applicants had not filed any application to have the writ of delivery either challenged or set aside. The writ of delivery complies with r 322 of the High Court Rules, 1971 and was properly issued as a result of a judicial process. For all intents and purposes there is no legal basis to impugn the validity or otherwise of the writ of delivery.

Once the issue of ownership is resolved the it naturally follows that the second and third respondents can enforce the writ of delivery against the world to recover the truck, as clearly stated in the matter of Shorai Marvis Nzara and 3 Others v Cecilia Kashumba N. O and 3 Others where it was held:

“…the title of an owner is so respected that the rei vindicatio operates against a third party who innocently purchases the property even where improvements or developments were made. The owner remains entitled to his property.”

Further in the matter of Arundel School Trust v Pettigrew it was held that:

“…this was a vindicatory action. An owner of property is at liberty to repossess his property at any time that he desires because it is the nature of ownership that possession of the property should repose in its owner at all times unless the possessor is vested with some right enforceable against the owner. The onus is on the defendant to prove a right of retention. A claim of right, in general, is a valid claim, which is enforceable at law against the registered owner of the property sought to be vindicated.”

Spoliation is any dispossession of someone’s right of possession of property or of a legal right in the matter of Van Rhem and Others NNO v Fluerbain Farm (Pty) Ltd it was held that:

“….the manadament van spolie is directed at restoring possession to a party which has been unlawfully dispossessed. It is a robust remedy directed at restoring a status quo ante irrespective of the merits of any underlying contest concerning entitlement to possession of that object or right in issue. Peaceful and undisturbed possession of the thing concerned and the unlawful dispossession thereof are all that an applicant for mandament van spolie has to show. Deprivation is unlawful if it takes place without due process of law or without a special legal right to oust the possessor.”

For the applicants to succeed on this ground of spoliation they must prove that:

they were in peaceful and undisturbed possession of the property, the Volvo truck.

they were wrongly dispossessed of the property without their consent.

The applicants have failed to prove on a balance of probability that they were unlawfully dispossessed. I am not convinced by the applicants to accept that the writ of delivery did not apply to them because they had not participated in the High Court matter which dealt with the interpleader nor am I convinced that the writ of delivery which is premised upon a decision of the highest court of appeal in the land, the Supreme Court, should not be applicable to the applicants. As already ruled the writ of delivery came out as a result of due judicial process of the law and has not been challenged by any process of the law to have it invalidated. No such order has been sought by the applicants and it will be futile by the applicants to argue that by bringing the present application they are impugning the writ of delivery. Once the sale of 7 April 2017 has been declared a nullity the legal consequences of the assumed ownership of the Volvo truck becomes a non-event.  As clearly spelt out in the matter of Manikwa and Anor v Zimdef and Anor the authorities are clear and it is now a matter of elementary law that when a proceeding is a nullity every proceeding based on it is also a nullity as observed by Korsha JA in Ngam Mbanje and Anor v Ngam where the Learned Judge relying on the dicta in McFoy v United Africa Company Ltd remarked that:

“If an act is in law a nullity, it is not only bad, but incurably bad. There is no need for the order of the court to set it aside. It is automatically null and void without more ado. Though it is sometimes more convenient to do so. And every proceeding founded on it is also bad and incurably bad. You cannot put something and nothing and expect it to stay there. It will collapse.”

In the matter of Grain Marketing Board v Albert Mandizha it was held that:

‘An owner of property is at liberty to repossess his property at any time that he desires, because if it is the nature of ownership that possession of the property should repose in its owner at all times. See Graham v Rudely 1931 TPD 476, where the principle was set out as follows:

‘It is inherent in the nature of ownership that possession should normally be with the owner and it follows that no other person may withhold the owner unless he is vested with some right enforceable against the owner.’”

Mr G Lock for the applicants moved this court to revisit the issue of ownership of the Volvo. With all due respect to counsel, that would be tantamount to reviewing the Supreme Court judgment that had already made a decision on that aspect and further declared the property non-executable because it belongs to second and third respondents.

In the case of Anglican Church of the Province of Zimbabwe v Anglican Church of the Province of Central Africa and The Deputy Sheriff Chiweshe JP dealt with, an almost similar case to the present application and concluded that:

“There are three cardinal points to be determined in this urgent chamber application namely, what the applicant church is bound by the prior decisions of this court and specifically by the decision of the Supreme Court in SC 48/12, and if not whether the applicant church has a right to be heard and if so whether infact it should be heard. The answer to these questions requires an interpretation of the scope and extent of the Supreme Court judgment in SC 48/2012. The High Court is not the appropriate forum for that kind of exercise. The applicant church should have approached the Supreme Court for directions.

In the final analysis I agree with the mother church that this matter is res judicatata – the Supreme Court has spoken.”

Once the aspect of ownership is in favour of the second and third respondents as per Supreme Court judgment, I fail to see the basis of the argument of unlawful dispossession by the applicants I conclude that that ground advanced by the applicants to repossess the Volvo truck has no merit and it is dismissed.

WHETHER OR NOT THE APPLICANTS ACQUIRED THE OWNERSHIP OF THE VOLVO TRUCK

This question has well been dealt under the first question and needs no repetition. Once the Supreme Court has declared the Volvo truck as one belonging to second and third respondents the issue of ownership is res judicata. In any case I have already concluded that the applicants did not acquire the Volvo truck after due process of the law since first respondent proceeded with the public auction in view of an interpleader summons which he had filed with the court following a notice by the second and third respondents as the claimants. The answer to that hypothetical question is that the applicant did not acquire the Volvo truck lawfully.

WHETHER OR NOT THE APPLCIANTS HAVE A LIEN OVER THE TRUCK

This ground of a lien was brought in by the applicants in order to get back the Volvo truck and retain it until they recover the value of the improvements they effected on it soon after the purchase at the public auction. It is not clear as to whom they want to recover the value from. Whether it is from second and third respondents or from the fourth respondent.

A lien is basically a right of retention, or jus retentionis. It is some form of self-help that arises by operation of the law. It accrues to the possessor of someone’s property over which he has accrued expenses. The possessor is entitled to retain or, in the case of an immovable property, to occupy the property until he has been duly compensated for his expenses. The lien is a form of security.

It is undoubtedly clear that a lien provides a right only to remain in possession. Once that possession is lost, the lien disappears. Hence a lien is a defence to a vindicatory claim and not a cause of action for delivery as the applicants are doing in this case. The rule of law is that a lien is dependent on continuous possession but there is an exception that is when the lien holder is deprived of the asset by force or the threat of force or of the holder parts with the property as the result of a fraud. The applicants submitted that they did not voluntarily give up possession but was taken away from them unlawfully hence by virtue of that, spoliation should be granted as the lien is still operational in their favour.

An enrichment’s lien’s purpose is to ensure that the person who enriched the other is compensated to the value of the enrichment. The applicants are not claiming value of the enrichment but like to hide behind the lien in order to get back the truck. As already pointed herein above the applicants’ cause of action may justifiably be against first respondent and fourth respondent or Pungwe Mining Company and not second and third respondents in my view. As such the applicants cannot seek to hold second and third respondents’ property for security for compensation which they may  claim from a third party.

The second and third respondents’ right of ownership is superior to the applicants’ personal rights that the applicants may have against the first respondent. In Alspite Investments (Pvt) Ltd v Westerhoff Makarau JP (as she then was) stated:

“There are no equalities in the application of the rei vindicatio. Thus in applying the principle, the court may not accept and grant pleas of mercy or for extension of possession of the property by the defendant against an owner for the convenience or comfort of the possessor once it is accepted that the plaintiff is the owner of the property and does not consent to the defendant holding it. It is a rule or principle of law that admits no discretion on the part of the court. It is a legal principle heavily weighted in favour of property owners against the world at large and is used to ruthlessly protect ownership. The application of the principle conjures up in my mind the most comfortable image of a stern mother standing over two children fighting over a lollipop. If the child holding and licking the lollipop is not the rightful owner of the prized possession, the mother must pluck the lollipop from the holder and restore it forthwith to the other child notwithstanding the rage and size of the owner-child or the number of lollipops that the owner child may be clutching at the time. It matters not that the possessor child may not have had a lollipop in a long time, or is unlikely to have one in the foreseeable future. If the lollipop is not his or hers, he or she cannot have it.”

In any case an owner of a property can recover her/his property even where improvements or developments were made. The owner remains entitled to his property.

This third ground advanced by the applicants in a bid to subtly repossess the Volvo truck equally implodes, it cannot be brought as a cause of action but cannot be utilised conveniently by a defendant in a rei vindicatio application. It has no merit in my view. It ought to fail.

Consequently the application is dismissed, and the applicants are to pay  second and third respondents’ costs.

Henning Lock, applicant’s legal practitioners

Dube - Banda Nzarayapenga & Partners, 1st and 4th respondents’ legal practitioners

Kantor and Immerman, 2nd and 3d respondents’ legal practitioners