BULAWAYO – The High Court of Zimbabwe has dismissed an attempt by Jabulani Nkomo, son of the late Vice-President John Landa Nkomo, to claim ownership of three vehicles attached in execution of a US$62 975 debt owed by Astra Building Centre (Private) Limited, ruling that the matter had already been decided in an earlier case.
In a judgement delivered by Justice Naison Chivayo in Bulawayo, the court dismissed an interpleader application filed by Jabulani Nkomo Family Trust, which had claimed ownership of vehicles attached by the Sheriff of the High Court of Zimbabwe while enforcing a debt owed to Ken Estate Agents.
The vehicles had been attached in execution of a court order obtained by Ken Estate Agents against Astra Building Centre (Private) Limited, which had been ordered to pay US$62 975 following a civil claim under case number HC SUMM 80/23-1.
After the attachment, the Jabulani Nkomo Family Trust filed an interpleader application arguing that the vehicles belonged to the trust and not to Astra Building Centre, the judgement debtor. The trust supported its claim by producing vehicle registration books for the three vehicles in question.
Ken Estate Agents, however, raised a preliminary objection arguing that the matter was res judicata, meaning it had already been determined by the court in an earlier case.
Ironically Jabulani Nkomo was appointed curator for Highlanders Football Club by controversial businessman Wicknell Chivayo to administer his donations to the club and the judge in this case, Justice Naison Chivayo, happens to be Wicknell’s uncle.
According to the judgement creditor, the same dispute over the same vehicles had been dealt with under case number HCBC 396/25, where the court ruled that the vehicles were executable property.
In that earlier matter, Jabulani Nkomo had personally claimed ownership of the vehicles.
The trust opposed the objection, arguing that the requirements for res judicata had not been satisfied because the earlier case did not cite Astra Building Centre as a party.
Justice Chivayo rejected the argument, finding that the absence of the judgement debtor as a cited party in the earlier proceedings did not alter the fact that the dispute involved the same parties, the same vehicles and the same cause of action.
“The papers filed under HCBC 396/25 show that the judgement debtor was Astra Building Centre (Pvt) Ltd, a company that was indebted to the judgement creditor, just as in this case,” the judge said.
He added that court rules provide that a matter cannot be defeated merely because of the non-joinder of a party if the court can still determine the issues affecting those involved.
The judge noted that the earlier case had already determined the central issue, whether the vehicles were executable, and had concluded that they could be attached in satisfaction of the debt.
“This court finds that the requirements for res judicata were fully met, in that the issue in dispute is between the same parties in both cases, the subject matter is the same in respect of both matters, and the cause of action is the same as in HCBC 396/25.
“Importantly, the court in HCBC 396/25 found that the motor vehicles were executable and so declared,” Justice Chivayo ruled.
The court therefore struck the matter off the roll and authorised the Sheriff to deduct costs incurred during the execution process. No order as to costs was made against the trust, the judgment creditor, or the judgment debtor.
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