OKI Printers (Pvt) Ltd. v Ngandu & Anor (CIV “A” 147 of 2014; HH 89 of 2016) [2016] ZWHHC 89 (4 February 2016)

1 HH 89-16 CIV “A” 147/14 OKI PRINTERS (PVT) LTD versus MUNYARADZI NGANDU and COMPUTER CONSUMABLE (PVT) LTD HIGH COURT OF ZIMBABWE CHITAKUNYE & NDEWERE JJ HARARE, 26 May 2015 and 4 February 2016 Civil Appeal MT Nyamutswa, for the appellant A Mugiya, for the 1st respondent No appearance for the 2nd respondent NDEWERE J: On 20 September 2013, the first respondent, Munyaradzi Ngandu, obtained an arbitral award which required the second respondent to pay him US$4 197-50 in unpaid wages and terminal benefits. Pursuant to this award, a warrant of execution against property was issued against second respondent under case no 1277/14 on 5 February, 2014, by the Harare Magistrate Court. The Messenger of Court proceeded to the address on the warrant, 103 Fife Avenue, Harare and attached 7 printers, 1 HP laptop and 100 toner cartridges. The appellant, represented by Charles Chimbwanda, its director, advised the Messenger of Court that the goods it had attached belonged to it and not the second respondent. Thereafter, the Messenger of Court instituted interpleader proceedings in the Magistrates Court to enable the court to determine ownership of the goods attached. Charles Chimbwanda deposed to the founding affidavit which formed the basis of the interpleader proceedings in the Magistrates Court on 6 March, 2014. In para 12 of his founding affidavit, Charles Chimbwanda stated that he is a director of the appellant and he is also a director of the second respondent, Computer Consumable (Pvt) Ltd. He went further to say that although he was a director in both appellant and second respondent; the two companies were separate legal entities and first respondent should therefore attach the second respondent’s goods and not the appellant’s. HH 89-16 CIV “A” 147/14 The second respondent did not oppose the claim in the court a quo. The matter was set down for argument on 25 March, 2014. Both parties were legally represented at the hearing. On 27 March, 2014, the magistrate dismissed the appellant’s claim and said that the appellant had failed to prove that the attached goods belonged to it and not to the judgment debtor. On 28 March, 2014, the appellant noted an appeal. The following were the grounds of appeal. “1. The court a quo misdirected itself in that it failed to appreciate the legal principles of separate personality in relation to companies and their shareholders or directors. 2. 3. 4. 5. The court a quo failed to appreciate that appellant and second respondent are separate legal entities with each of them acquiring its own assets and liabilities apart from each other. The court a quo failed to appreciate that the onus to prove that the goods attached by the Messenger of Court in appellant’s premises belonged to second respondent (the judgment debtor) rested upon the first respondent (the judgment creditor) and no such onus was discharged by the first respondent. The court a quo failed to appreciate that the appellant had no duty to prove that the property in its premises did not belong to second respondent. The court a quo failed to appreciate that nothing on the papers suggested that the property attached belonged to the second respondent.” The relief sought by the appellant was that the attached goods be released to it. With regards to ground of appeal 1 and 2, the appellant simply failed to show that the attached goods belonged to it and not to the second respondent. Showing that you own the goods attached is a requirement for claimants in interpleader proceedings. On the other hand the first respondent deposed to an affidavit which strongly disputed the assertions by the appellant, through its director Charles Chimbwanda. In para 4, 5 and 6, of his opposing affidavit, on pages 41 to 42, the first respondent stated as follows: “4. “5. “6 This is denied. The claimant is owned by Charles Chimbawanda who also owns Computer Consumables. The said Chimbwanda has taken all the property of Computer Consumables to be used by OKI. OKI Printers does not own and has never owned the property which has been attached. It was using these machines only.” I say so on the basis that when OKI Printers was opened, all the staff and machine was transferred to OKI for use only leaving Computer Consumables as an empty shell and is no longer operating.” OKI Printers did not purchase the attached property from Computer Consumables. This can be easily shown by the fact that there has been nothing attached to prove that the machinery attached was purchased by OKI Printers in the form of receipts.” HH 89-16 CIV “A” 147/14 The first respondent continued to dispute appellant’s ownership of the property throughout his opposing affidavit, persisting with his claim that the property belonged to Computer Consumables. He repeated this point in para(s) 10, 12, 13 and 15 of his opposing affidavit on p 42 of the record. Despite these strong assertions by the first respondent that the property attached belonged to the second respondent and was never sold, ceded or donated to the appellant; the appellant chose to remain silent. The appellant could have filed an answering affidavit explaining the basis of its claim to the property. It did not do so. It could also have attached receipts, or agreements of sale, or a deed of donation, company resolutions or an asset register to confirm its claim that it had taken over the goods as owner. The appellant did not do so. This meant that the first respondent’s evidence in the opposing affidavit remained unchallenged and it is trite law that what is not challenged in a court of law must be taken to have been accepted as correct. Consequently, the court a quo had no legal basis to rule that the property belonged to the appellant. With regards to grounds of appeal 3, 4 and 5, while it is correct that initially, the appellant had no duty to prove that the property found on its premises belonged to it, in accordance with the rebuttable presumption that he who is in possession is the owner, after the first respondent challenged such ownership, thus rebutting the presumption, the appellant should have provided proof that it indeed was the owner of the attached goods by furnishing the court with some proof of its claim. It was even more imperative for the appellant to provide proof because first respondent, as a former employee, appeared to have intimate knowledge about who owned what between the two entities. The appeal therefore has no merit and should be dismissed, with costs. CHITAKUNYE J agrees: ___________________ Nyamutswa, appellant’s legal practitioners Mugiya and Macharaga, 1st respondents’ legal practitioners