Court finds collusion in vehicle ownership wrangle...

Court finds collusion in vehicle ownership wrangle

Nyashadzashe Ndoro

Chief Reporter

The High Court of Zimbabwe has resolved a contentious dispute over vehicle ownership between Mosswood Investments (Private) Limited, Moses Nhachi, and other parties, providing clarity on the legal requirements for proving ownership and the need for courts to be vigilant in detecting collusion between judgment debtors and claimants.

The judgment, handed down by Justice Nyaradzo Priscilla Munangati-Manongwa on May 28 and June 11, 2024, has brought clarity to the protracted legal battle.

The case centred on a default judgment obtained by Biltrans Services (Private) Limited against Perspective Transport Private Limited and UPMAN Services (Private) Limited in February 2023.

The judgment resulted in a writ of execution, leading to the attachment of several trucks by the Sheriff. The first claimant, Perspective Transport Private Limited, and the second claimant, UPMAN Services (Private) Limited, disputed ownership of the attached vehicles.

The first claimant alleged purchasing the trucks from the judgement debtor before the institution of these proceedings, providing a letter confirming the sale and clearance certificates for motor vehicle change of ownership from Zimra. However, the judgment creditor contested the claim, citing collusion between the judgment debtor and the claimants.

The court found the first claimant’s evidence insufficient to prove ownership, as no agreement of sale or proof of payment was provided. The court noted that the trucks were still registered in the judgment debtor’s name and bore the company’s logo and branding, raising suspicions of collusion.

Regarding the second claimant’s claim, the court accepted the evidence of vehicle registration books and motor vehicle enquiry forms from Central Vehicle Registry, establishing ownership of most of the trucks. However, the claim to one vehicle, ADS 4854, was dismissed due to lack of proof of purchase or transfer from Biltrans Services (Private) Limited.

In the ruling, Justice Munangati-Manongwa stated: “The court cannot be guided by the date on the purported letter of confirmation of sale dated 10 May 2022... It is clear that the judgment debtor was aware of its obligation before the default judgment and writ of execution which culminated in these proceedings.”

The judge further noted: “The allegation of collusion is buttressed by the fact that Kenias Sibanda is a shareholder in both the judgment debtor and the first claimant ... Courts need to be wary of collusion in proceedings where property attached is found on leased premises.”

The court ordered the first claimant to pay costs on a legal practitioner and client scale, while the second claimant was successful in defending ownership of most of the trucks, with no costs awarded against them.

“The court’s attention was drawn to the lease agreement appearing in the first Claimants affidavit which it alleged was in fact signed by Kenias Sibanda on behalf of Autoseal Zimbabwe (Private) Limited,” said the judge.

“The submission by Advocate Mudhau that the first claimant proffered agreements of sale is misplaced. What has been proffered is a letter confirming sale,” the judge added.

“It is trite that an invoice should be distinguished from a receipt. An invoice is not proof of payment but is a document which calls for payment,” the judge explained.

“Suffice that in the absence of a receipt or proof of payment, a bank statement may have assisted were it to show a debit entry upon the purchase of the vehicles,” the judge said.

“The fact that the trucks were attached bearing the same brand and logo as that of the judgment debtor almost 10 months after the alleged sale took place, and that the trucks were at the judgment debtor’s premises is striking coincidence that convinces the court that allegations of collusion as between the judgment debtor and the first claimant that were raised by the Judgment Creditor are true,” the judge stated.

“In that regard, it will be incompetent for the court and will amount to miscarriage of justice where sufficient evidence is adduced, to declare ownership rights of the trucks to the first Claimant,” the judge added.

“The court is satisfied that the foregoing listed trucks belong to the second claimant,” the judge said.

“An exception is with ADS 4854 with chassis number 1FUJAWCG7BLAY9253 which was previously registered in the name of Biltrans Services (PVT) LTD since 29 December, 2015 and was then registered in the name of the second Claimant from 8 June, 2022 as per the Motor Vehicle Enquiry Forms from Central Vehicle Registry,” the judge noted.

“In applications of this nature, where collusion of the judgment debtor and the claimants is alleged, the courts should apply a strict approach whereby the claimants should provide further evidence other than registration books,” the judge explained.