Barclays Bank Ltd t/a Fincor Asset Finance v Canvest Farming (Pvt) Ltd & Ors (HH 119 of 2004) [2004] ZWHHC 119 (19 May 2004)

HH 119/2004 HC 5755/04 BARCLAYS BANK LIMITED c/o FINCOR ASSET FINANCE versus CANVEST FARMING (PVT) LTD and AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY and HONOURABLE MINISTER OF AGRICULTURAL & RURAL DEVELOPMENT and COMMISSIONER OF POLICE and OFFICER-IN-CHARGE ZRP ODZI HIGH COURT OF ZIMBABWE HUNGWE J HARARE, 20 May, 2004 Urgent Chamber Application Mr A. Moyo, for the applicant Mr ABC Chinake, for the 1st respondent Mr Gahadzikwa, for the 2nd respondent Mr Mudhara, for the 3rd, 4th and 5th respondents HUNGWE J: Applicant is Barclays Bank Limited trading as Fincor Asset Finance. The first respondent, Canvest (Pvt) Ltd (“Canvest”) is a company that used to carry out farming activities or the remaining extent of Wallacedale also known as Kondozi Farm. Second Respondent is Agricultural and Rural Development Authority (“Arda”) a parastatal. The third respondent is the Minister of Agriculture and Rural Development (“the Minister”). The fourth and fifth respondents are the Police Commissioner and the officer-in-charge at ZRP Odzi respectively. On 13 May 2004 applicant by way of an urgent chamber application, filed for an interdict in the following terms:- “TERMS OF FINAL ORDER SOUGHT That you show cause to this Honourable Court why a final order should not be made in the following terms:- 1. that the agreement between applicant and 1st respondent be and is hereby confirmed as cancelled. That immediately upon service of this order the respondents whomsoever is in possession of the said movable assets be and are hereby ordered and directed to hand over/deliver to the applicant on its representatives(s) the movable assets fully listed 2. HH 119/2004 HC 5755/04 3. 4. 5. and identified in Annexure “A” of this order. In the event of the respondents and whomsoever is in possession of the said immovable assets failing to comply with paragraph 1 of this order, the Deputy Sheriff for the area to be and is hereby authorised and directed to take possession of the items from whomsoever is in possession thereof and deliver same to applicant. That the 4th and 5th respondents be and are hereby interdicted from preventing and in any way interfering with the removal of the movable assets listed in Annexure “A” to this order from the premises known as Wallacedale Farm Odzi also known as Kondozi farm and further directed to render whatever assistance to the applicant and/or the Deputy Sheriff as may be necessary to give effect to this order. That the respondents jointly and severally the one paying the others to be absolved shall pay the costs of this application. INTERIM RELIEF SOUGHT Pending the determination by this Honourable court of the issues referred to herein above, it is ordered that:- 1. The movable assets listed in Annexure “A” to this order be and are hereby placed under judicial attachment. The respondent and whomsoever is in possession of all of any of the said movable assets be and are hereby interdicted from using, dismantling, disposing or in any way whatsoever dealing with the said assets save as contemplated by this order. Immediately upon service of this order, the respondents and whomsoever is in possession of the movable assets listed in Annexure “A” to this order shall hand over/deliver to the applicant or its representative(s) the said assets, which the applicant shall hold in terms of paragraph 1 of this order. In the event of the respondents and whomsoever is in possession of the said assets failing to comply with paragraph 3 of this order, the Deputy Sheriff be and is hereby authorised and directed to take possession of the movable assets in terms of paragraph 1 of this order. The 4th and 5th respondents be and are hereby interdicted from preventing and in any way interfering with the removal of the movable assets listed in Annexure “A” to this order from the premises known as Wallacedale Farm Odzi also known as Kondozi Farm and further directed to render whatever assistance to the applicant and/or the Deputy Sheriff as may be necessary to give effect to this order. SERVICE TO THE PROVISIONAL ORDER Copies of this provisional order shall be served upon the respondents by the applicant’s legal practitioners, the Deputy Sheriff or their lawfully appointed representatives.” 2. 3. 4. 5. 6. The following facts are common cause or not seriously disputed. 1st respondent entered into a … hire purchase agreement with applicant in respect of the assets listed in Annexure “B” to the papers. These vary from Nissan diesel UD 90, Nissan cabstars, forklifts, motor cycles, tractors and Nissan double and single cab light trucks. HH 119/2004 HC 5755/04 In terms of clause 4.1 of the lease agreement, the lessee acknowledged that at all times ownership of the assets remained vested in the applicant. Lessee was also required to keep its payment in terms of the lease agreement up to date. 1st respondent was, in terms of the agreement, to keep the goods in its possession and to maintain the said goods in good working condition. Canvest could not sell, lease, cede, transfer or assign any of applicant’s assets without applicant’s consent. Presently the assets, or some of them, are now in the 2nd respondent’s possession. Applicant alleges that by this fact, 1st respondent has breached the lease agreement and seeks an order confirming cancellation of that agreement and a return of its property from whoever may currently be in possession of such property. Applicant relied on these facts in alleging that the matter is urgent and must be given preference over others as it stands to suffer irreparable harm through loss of its property. As owner applicant seeks a vindicatory order against anyone in possession of the property. The application was not opposed by 1st respondent as the net effect of the order sought would protect it from incurring further liability towards applicant for the various breaches of the agreement. It recognises that by virtue of 2nd and 3rd respondent’s actions it cannot perform its side of the lease agreement. Second respondent initially opposed the order sought. Mr Gahadzikwa relied on the fact that as this in essence was a spoliation order, it could not succeed as the applicant was not in possession of the assets when they were taken over by his client. After submissions by Mr Moyo, for the applicant, Mr Gahadzikwa did not persist with this argument. He, properly in my view, recognised the right of the owner of a thing to indicate it from whosoever was in possession of it under any claim of right. As owner applicant had better title which no one could assail. He however maintained his opposition to the grant of the order sought on the ground that possession by his client, Arda, was in good faith as it did so as agent of the acquiring authority, the 3rd respondent. For his part, Mr Mudhara, for 3rd, 4th and 5th respondent, strenuously opposed the grant of the order sought. He did not file any papers simply because he was not initially the one assigned to deal with the matter. He sought postponement of the matter from the outset on the ground that he had not received a response from the 4th respondent. This was refused on the basis that he, as the Attorney-General’s representative who in turn is the government’s chief legal advisor ought at any time to be able to articulate HH 119/2004 HC 5755/04 government’s legal position in any matter which has been properly set down especially where facts were not in dispute as here. In the end he sought to argue that an out of court negotiation would have better served the applicant as well as the respondents’ interests. In effect he had no submissions to make with regards to the propriety of the interim order sought. If the lease purchase agreement is genuine, if applicant is true owner, there can be no doubt as to applicant’s right to vindicate its property. It was pointed out in the hearing that 2nd respondent, in a different case involving it and 1st respondent, had conceded that it had no legal claim to the assets in issue. It was obliquely suggested that the assets are subject to the Presidential Powers (Temporary Measures) (Acquisition of Farm Equipment or material Regulations) S. I. 273A of 2003. That could not be insisted upon as it is common cause that 2nd respondent came into possession of the assets well before these regulations were gazetted. In the present application I am satisfied that there is no good ground upon which the respondents could resist the grant of the interim order sought. All the requirements of an interim interdict have been met. In the result I granted the interim relief sought by applicant with no order as to costs. Coghlan Welsh & Guest, applicant’s legal practitioners Kantor & Immerman, 1st respondent’s legal practitioners Jakachira & Company, 2nd respondent’s legal practitioners Civil Division of the Attorney-General’s Office, 3rd, 4th & 5th respondent’s legal practitioners