First Capital suffers setback as High Court blocks...

First Capital suffers setback as High Court blocks property attachment

Nyashadzashe Ndoro- Chief Reporter

The High Court of Zimbabwe has ruled against First Capital Bank in an interpleader application concerning the attachment of immovable property, declaring the attachment non-executable due to a 1998 divorce order that granted rights to the claimant.

The case centred on a dispute over a 50% share of a property in Athlone Township.

The Sheriff of Zimbabwe had attached the property under a writ of execution related to a judgment debt against Edwin Moyo. However, Chido Moyo, the claimant, contested the attachment, asserting her rights to the property based on the 1998 divorce order.

The order, stemming from case HC 3244/94, stipulated that Edwin Moyo’s 50% share of the property be transferred to Chido Moyo and her sister, Chedo Moyo, upon them reaching the age of 18.

First Capital Bank, the judgment creditor, argued that Chido Moyo’s claim lacked merit, citing the lapse of time since the divorce decree and the continued registration of the property under Edwin Moyo’s name. They further contended that the claimant’s rights were personal and not enforceable against third parties. Additionally, the bank argued that the original court order had expired.

"Personal rights are not enforceable against the whole world and third parties like the judgment creditor. The claimant’s rights lapsed.

"It was further contended that the judgment which the claimant seeks to rely on has long since expired three years after issuance. It is too old to be used unless the claimant applies for it to be revived. In the final analysis, the judgment creditor prayed for the dismissal of the claimant’s claim with costs on a legal practitioner and client scale," First Capital Bank submitted.

However, Justice Maxwell Takuva ruled in favour of Chido Moyo, finding that there were “special circumstances” warranting the property’s exemption from execution.

The court acknowledged the validity of the 1998 divorce order and Chido Moyo’s prompt action to protect her rights. The judge dismissed the bank’s arguments regarding superannuation and the nature of personal rights, emphasizing the need to consider the specific circumstances of the case.

“In my view, there are special circumstances why the property under judicial attachment must be declared not executable,” Justice Takuva stated in his judgment.

The court also dismissed allegations of collusion between Chido Moyo and Edwin Moyo. The judge cited the sentimental value of the property to the claimant and her family, ruling that this outweighed the financial recovery sought by the judgment creditor.

The court granted Chido Moyo’s claim, declaring the attached property not executable. First Capital Bank was ordered to pay the costs of both the claimant and the sheriff.

“The claimant’s claim to the immovable property known as the undivided 50% share of a certain piece of land situate in the District of Salisbury called Stand 232 Athlone Township 2 of Green Grove C measuring 3886m2, which was placed under attachment in execution of the order in HCHC 184/23, be and is hereby granted;

“The above-mentioned property attached in terms of the Notice of Attachment of immovable property dated 6 October 2023 issued by the applicant be and is hereby declared not executable.

“The judgment creditor is to pay the claimant’s and the applicant’s costs,” the judge ruled.