IN THE HIGH COURT OF ZIMBABWE
BULAWAYO 19 NOVEMBER 2013 AND 23 JANUARY 2014
MrChamunorwa for the plaintiff
Defendant in person
MOYO J: The plaintiff issued summons claiming;
1. The restoration of possession and delivery of a motor vehicle namely, a Nissan Civilian Registration Number AAS 1066 presently in the custody of the Defendant.
2. Alternatively payment of the replacement value of the said motor vehicle as at the time of judgment. (The replacement value was given in court as a minimum of $19700-00 through the use of written quotations).
3. Interest thereon at the prescribed rate with effect from the date of judgment to the date of payment in full.
4. Costs of suit on an attorney and client scale.
The Defendant on the other hand filed his plea denying plaintiff’s entitlement to the motor vehicle in question and in fact Defendant alleged in his plea that plaintiff sold the motor vehicle to him (the Defendant).
Defendant claimed in his counterclaim that plaintiff be compelled to transfer the said motor vehicle to him, or alternatively, to refund him the sum of ZAR15000 being the total amount paid by the Defendant to plaintiff as part payment towards the purchase price. Defendant further claims the sum of $1380-00, being the amount spent on spare parts for repairs on the same motor vehicle. He also claims the sum of $700-00 being for labour. Defendant further claims the sum of ZAR 20-00 per day being storage charges with effect from 1 October 2008 to date of full payment. He also claims costs at an attorney and client scale.
The main issue for determination by this court is whether plaintiff is entitled to take control and possession of the said motor vehicle from the Defendant. The whole issue thus revolves around under what circumstances did the Defendant come into possession and control of plaintiff’s motor vehicle.
The plaintiff gave evidence to the effect that the Defendant, who claimed to be a mechanic, and whom plaintiff met through the War veterans Association, offered to repair plaintiff’s motor vehicle as he found it parked and broken down at plaintiff’s place of residence. This was according to plaintiff, around October2008.. Plaintiff also gave evidence to the effect that he never at any given time sold his motor vehicle to the Defendant neither did he receive any payment for it. Plaintiff further stated that he actually financed the repairs that the Defendant had advised were to be undertaken on the motor vehicle as he gave the Defendant the money to purchase the spare parts. Plaintiff further stated that the Defendant remained in control and possession of the motor vehicle in question as he kept on saying the motor vehicle although running was not yet smooth, he still needed to fine tune it so that its performance would be at the best. In brief those were the material respects of plaintiff’s evidence. He was not shaken at all under cross-examination and he maintained his case throughout the trial. The Defendant also gave evidence to the effect that the two did attend the War veterans Association meetings together and that he would occasionally pass by plaintiff’s house. He confirms that plaintiff’s motor vehicle was indeed broken down and parked at plaintiff’s place of residence. He stated that in one of the days sometime in 2008 plaintiff mentioned that he was selling the motor vehicle. Plaintiff also told the court that initially he had not given the Defendant the registration book but only gave him when Defendant advised Plaintiff that he had problems with officials from the Vehicle Inspection Department while testing the vehicle and they had advised Defendant that since the car licence disc had since expired, he should carry the vehicle registration book inside the vehicle at all times.
Defendant said that he told the plaintiff that he was interested in the motor vehicle and he went with plaintiff to plaintiff’s place of residence in order for him to be shown the motor vehicle. They subsequently agreed on selling the motor vehicle to each other. They manage to start and run the motor vehicle, although this happened after a struggle. The Defendant then drove the motor vehicle to his place of residence. This was in April 2008 according to the Defendant. Defendant further stated that sometime in October and November 2008, Plaintiff told him that there were many other people who wanted the car since Defendant had not paid anything. They then agreed that Defendant would try to raise some money at the earliest. Defendant stated that he subsequently managed to pay ZAR 15000-00 to the Plaintiff. He stated that he was later given the car Registration book. He said that he then advised Plaintiff that he was not sure of when he would clear the remainder as he was not certain of the remaining expenses in fixing the motor vehicle. He said they had seen an advert for a similar car priced at P40000 in a Botswana paper. He said that he bought the spare parts to fix the motor vehicle during the period from 2008 to 2009. He then said he subsequently got arrested at Egodini Terminus whilst pirating as plaintiff had reported to the police that Defendant was unlawfully holding on to his (Plaintiff’s) motor vehicle. Those were the material respects of Defendant’s testimony. Defendant also called his wife, one Sicolani Ncube whose evidence did not assist the court much as she basically told the court what she had heard from the Defendant. She however confirmed that she was there when Plaintiff was paid the sum of ZAR 15000-00. Under cross-examination the Defendant stated that the parties did not record the agreement and hence they had a verbal agreement. He said the terms of the verbal agreement were that after payment of “this” money he would then clear the balance in instalments until when he finished paying. As to the number of instalments he said that the parties did not stipulate that. He said there was no agreement as to when he would start paying the instalments. He said they did not discuss as to how much the balance would be and when it would be paid. He further admitted that to date the unknown balance remains unpaid. The Defendant himself was not able to state to the court:
(a) the specific date upon which an agreement of sale was entered between himself and the plaintiff
(b) the precise terms and conditions of such an agreement of sale, that is, the price, the payment mode and terms.
The Defendant maintained having given the plaintiff the sum of ZAR15000-00. The rest was yet to be agreed upon. This certainly would not make sense and would leave the plaintiff’s version that is to the effect that there was no agreement of sale at all; being the only correct version of events in this matter. It defies logic that a man would sell his bus for an unknown price, and would let somebody take it away then later be paid ZAR 15000-00, with an undetermined balance remaining. This issue started in 2008 and to date the purchase price is yet to be determined according to the Defendant. This is highly improbable. In any event even if one were to accept that an agreement of sale was entered into, (which I find not to be the case), one would still have difficulty in ascertaining the terms of the agreement. An agreement of sale is valid only if it meets certain legal requirements; as per the definition of an agreement of sale in R.H Christie: Business Law in Zimbabwe, at page 144 as
“a contract in which one person promises to deliver a thing to another, who on his part promises to pay a certain price.”
“There must be an agreement to exchange property for a price. If either of these two constituencies are lacking there is no sale.” Per R.H. Christie, Business law in Zimbabwe at page 145.
It therefore follows that with the facts before me, wherein there was no agreement as to the price there can not be a valid contract of sale. I have already alluded to the lack of logic in the defence case. Not only did Defendant’s case defy logic but Defendant himself was not truthful to the court as he contradicted himself and even disowned the information in the pleadings that he filed. Defendant also struggled under cross-examination to explain why the workshop invoices for spare parts were given in United States dollars yet the country had not adopted that currency and was still using the Zimbabwean dollar at that time. Defendant also produced some unrelated invoices with amounts purportedly drawn in 1999 in United States dollars and yet the country had not yet adopted the multicurrency regime. He failed to explain this. This can only serve to show that the Defendant went to the extent of manufacturing evidence in the form of pre-dated invoices to try and prove his case. I accordingly dismiss Defendant’s claim in its entirety and I find in favour of the plaintiff.
I accordingly order as follows:
1) That Defendant be and is hereby ordered to deliver to the Plaintiff a Nissan Civilian Bus registration number AAS 1066, or alternatively that if Plaintiff is not satisfied with the current condition of the said bus, that Defendant pays the Plaintiff the sum of $19700-00 (being the current replacement value of the said bus),
2) that Defendant pays interest on the sum of $19700-00 at the prescribed rate with effect from the date of judgment to date of full payment,
3) that Defendant pays costs of suit at an attorney and client scale,
4) that the Defendant’s counterclaim is dismissed with costs at an attorney and client scale.
Messrs Calderwood, Bryce Hendrie and. partners, plaintiff’s legal practitioners