High Court uncovers 'ruse' in truck sales

By Nyashadzashe Ndoro

The High Court of Zimbabwe has uncovered a suspected "ruse" in a contentious truck sales dispute, siding with leading transport operators, Biltrans Services (Private) Limited and declaring the attached property executable, while also ordering the claimants to pay costs and storage fees.

The case involved the Sheriff, Biltrans Services (Private) Limited, Perspective Transport Private Limited, UPMAN Services (Private) Limited, and 5 Star Parts Inc.

The Sheriff had attached several trucks belonging to the first and second claimants, Perspective Transport and UPMAN Services, respectively, in execution of a court order obtained by Biltrans Services against the judgement debtor.

"The court cannot be guided by the date on the purported letter of confirmation of sale dated 10 May 2022," said Justice Nyaradzo Priscilla Munangati-Manongwa.

"It does not escape the court's attention that the judgement debtor's obligation arose on the second of February 2023 when Biltrans obtained a judgement in its favor in HC 380/22."

"The claimants' claims are opposed by the Judgement Creditor who alleges collusion between the judgment debtor and the claimants and is of the view that the alleged sales are nonetheless a ruse," said the judge.

The first claimant, Perspective Transport, alleged that it had purchased the trucks from the judgment debtor before the institution of these proceedings. However, the court found that the evidence provided by the first claimant was insufficient to prove ownership.

"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. Thus, the claimant has failed to prove that it paid for the trucks," said the judge.

The second claimant, UPMAN Services, successfully defended its ownership of most of the trucks attached. The court found that the second claimant had provided sufficient evidence, including motor vehicle enquiry forms from the Central Vehicle Registry and registration books, to prove ownership.

"Production of motor vehicle enquiry forms from Central Vehicle Registry and registration books to the effect that some of the motor vehicles are registered in its name from the date of import was made," said the judge.

However, the court ruled that the second claimant had failed to discharge the burden of proving how it acquired one of the trucks, ADS 4854, from Biltrans Services (PVT) LTD.

"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," said the judge.

The court ordered the first claimant to pay costs on a legal practitioner and client scale and declared the attached property executable. The court also ordered the second claimant to pay storage costs incurred by the Applicant from the date of removal of the goods to the date of their release from storage.

"The first Claimant is to pay in full the storage costs incurred by the Applicant from the date of the removal of the goods to the date of their release from storage. The first Claimant is to pay the Judgement Creditor's and the Applicant's costs on a legal practitioner and client scale," said the judge..