MAVANGIRA J: The plaintiff's claim against the defendant is
for the sum of US$14 287 in respect of which the defendant signed an acknowledgment
of debt. The plaintiff contends that the said amount is due to it for
cigarettes sold by it to the defendant. The defendant on the other hand alleges
that the acknowledgment of debt relied upon is a forgery and denies being
indebted to the plaintiff.
The issues that were referred for trial were the following:
“(a)
Whether the defendant is indebted to the plaintiff in the sum claimed or at
all.
(b)
Whether the defendant signed the acknowledgement of debt that forms the subject
of the plaintiff's claim.
(c)
Whether the signature on the said acknowledgment of debt is that of the
defendant”.
One Elijah Michael Chiwara was the plaintiff's first
witness. His evidence was to the following effect. He is the plaintiff's
Managing Director. The plaintiff company is in the business of distributing
cigarettes manufactured by British American Tobacco Zimbabwe Limited (BAT). The
plaintiff is supplied with cigarettes from BAT on a 7 day credit basis. The
plaintiff in turn sells the cigarettes to its customers on a cash basis and
also on 7 days' credit to approved stockists. The plaintiff has been dealing
with the defendant for a long time and has been supplying cigarettes to the
defendant on a 7 day credit invoice. Upon payment for the supply the plaintiff
would supply the defendant with his next order. The witness also said that in
order to place an order the defendant would normally phone the plaintiff's
salesman who would then deliver the required stocks to the defendant's
designated point of his choice.
The witness said that the plaintiff's claim in this matter
arises from two invoices. The defendant made part payment on the first invoice
and promised to pay the balance two days later. Because he had run out of
stocks the defendant successfully pleaded with the plaintiff's salesman to give
him another supply on 7 days credit basis. The witness got to know of this when
the salesman, one Vincent Bushu (Bushu), advised him about the non-payment by
the defendant. The witness telephoned the defendant and they agreed to meet at
the defendant's shop in Norton. The witness went with Bushu, the salesman. The
defendant was not at his shop. When he contacted the defendant on his mobile
phone the defendant said that his vehicle had broken down on his way from Mhondoro
to Norton. The witness and Bushu went and they brought the defendant and his
wife back to Norton. The defendant's shop was very busy and so they discussed
the matter whilst they were in the vehicle where the defendant's wife left them
as she went inside the shop.
The witness said that he asked the defendant whether he was
aware that payment was overdue for two invoices; this being for a balance on a
previous invoice and the full amount on what was then a current invoice. He
also asked the defendant how he was going to liquidate his indebtedness. The
defendant agreed that he owed the monies and said that as he had no stocks left
he was planning to sell his house which he had already advertised in the
papers. He said that the defendant pleaded with him for more time to raise the
money as the responses to the advertisement were slow. The witness explained to
the defendant that as the plaintiff was an agent of BAT, it also needed to pay
back to BAT within its own 7 days credit period. The witness said that he asked
the defendant if he would mind signing an acknowledgment of debt which he would
then be able to show to BAT as the reason for the plaintiff's failure to pay
within the given time. The witness pulled a piece of paper out of his folder
and on it he wrote down the defendant's details that were furnished to him by
the defendant. The details included the defendant's full name, his
identification number and his residential address, details which the witness
said he did not know before. The witness said that he asked the defendant to
read what he had written down and to sign the document. The defendant was happy
with the contents and he signed. The witness asked the defendant if he had any
objection to Bushu being a witness to his signing of the document and the
defendant said that he was agreeable. Bushu signed. The witness and Bushu left
thereafter. They never received any payment from the defendant who kept saying
that it was turning out to be difficult to find buyers for his house.
The acknowledgment of debt produced by the witness reads:
“I Peter Fungayi Kangara ID. 47-089667V47 resident of Stand
No. 3891 Mhofu Street Nharira Suburb Norton hereby acknowledge debt of
$14,287.00 (Fourteen thousand two hundred eighty seven dollars only) for
purchases of cigarettes from Rusitu Agencies on 2nd October 2010
including balance of $1,717.00 (One thousand seven hundred and seventeen
dollars only prior to 2nd October 2010 which was due within 7 days
(Seven days) from date of Invoice for payment. (sic)
Signed by.
Peter Fungayi Kangara
Proprietor of Super Groceries
Signature:
(signature)
Cell No. 0772931174
Date:
14 October 2010
Witness:
Vincent Bushu 66-054469K-66
(signature)”
The witness gave clear evidence and was not shaken in cross
examination. He gave a clear account of what happened and his involvement in
the matter. He was a credible witness.
Vincent Bushu was called next. He testified to the following effect. He is a
sales representative of the plaintiff company and has been so for 7 years. The
defendant has been their customer for two years and was on a 7 day account. The
witness would first collect from the defendant the money for the previous
invoice which had to be settled first before he could supply him with any
further stock that he may then order and which would be reflected on the next
invoice. On 22 September 2010 the witness supplied the defendant's manager, one
Kaunda, with stock after he had settled the previous invoice. On 2 October 2010
at Pamuzinda Lodge he met with the defendant's manager who paid for part of the
consignment supplied on 22 September 2010, leaving a balance of US$1 717. As
Kaunda wanted more stock, the witness contacted his superiors and was given the
go-ahead to give him another supply as he had paid a large proportion of the
amount owed on that invoice. He had paid US$10 430. Kaunda asked for a receipt
for him to show his employer, the defendant, that there was an unpaid balance.
After talking to the defendant on the phone, Kaunda told the witness to come to
the shop on the Monday to receive payment of the balance. When the witness
supplied the stock to Kaunda, Kaunda did not sign for it. The witness spoke to
the defendant over the phone and asked if he could sign for the invoices to
show that he agreed with the stock supplied and the balance on the
previous invoice. The defendant asked the witness to come to the shop on the
Monday for him to sign the documents. The witness said that on the Monday he
went to the defendant's shop where the defendant signed for the invoices and
agreed on the balance for the previous invoice as well as the then current one.
The defendant did not pay the balance owing citing poor sales at the shop. The
defendant advised the witness to contact him on the Wednesday which he did. The
witness said that on the Wednesday the defendant said that he had no money and
that he was working out a plan to raise the money so that he could pay his
debt. The witness then sought advice from his employer's offices. Eventually
the last witness, Chiwara, was advised and he arranged to meet with the
defendant at his shop.
The witness accompanied Chiwara to the defendant's shop in Norton where they
found out that the defendant had gone to his other shop in Mhondoro and that he
had had a breakdown somewhere along the way. The rest of the witness' evidence
from this stage is similar to and corroborates that of the last witness. The
witness also said that when he went to Norton with Chiwara it was about a week
after all the transactions had been done and the defendant acknowledged that
the invoices had not been paid for fully and that he was willing to pay for
them as soon as he could; hence his agreement to sign the acknowledgment of
debt. The witness also said that the acknowledgment of debt was drafted by
Chiwara in his own handwriting in the presence of the witness and also in the
presence of the defendant who then signed it. The witness said that he only
wrote his name and ID number as well as signing the document as a witness
thereto after he had read it through. The witness generally gave his evidence
well and was clear about the events and issues between the parties. He was also
a credible witness. The plaintiff's case was closed after this witness
The defendant gave evidence. He said that initially he applied for a credit
facility with BAT and the ensuing agreed relationship entailed BAT supplying
him with cigarettes on a 7 day credit basis. Then during the period of
hyper-inflation when prices of goods would rise twice or thrice a day, BAT
stopped supplying cigarettes to him saying it was no longer viable for them to
supply stock on credit because of the prevailing hyper-inflation. Thereafter,
during the period when the multi-currency system was introduced the plaintiff
came onto the scene and started supplying cigarettes to him on a cash basis. He
said that all business transactions between him and the plaintiff were always
on a cash basis. Payment would be made as soon as they were supplied with the
cigarettes and this was always done at the shop in Norton. He would also buy
cigarettes for all his other shops when he made the purchases at the Norton
shop. Kaunda, the manager or any other supervisor would normally receive these
goods at the Norton shop. Sometimes the defendant would receive the goods.
Payment would be made by whoever received the goods. He denied that he had a
credit facility with the plaintiff. He also said that he never made any
application to the plaintiff for such a facility. The defendant said that when
payments were made the plaintiff would issue them with a cash invoice to show
that payment had been made. He also said that the plaintiff was not the only
supplier who issued them with cash invoices as proof of payment. It was also
his evidence that he was seeing the receipt at p 5 of the plaintiff's bundle of
documents for the first time in court; he had never seen it before, neither had
he been issued with any receipt of that type before.
The defendant said that when they increased the quantity of cigarettes that
they would buy from the plaintiff, the plaintiff started giving them discounts
and that the plaintiff would not supply the cigarettes if they did not have the
cash. He denied having had any dealings with Chiwara at any stage and said that
Chiwara must have based his evidence on hearsay. He denied ever having had a
meeting with Chiwara and Bushu who were following up on payment. He denied ever
having had a vehicle breakdown after which Chiwara and Bushu came to his
rescue.
It was the defendant's evidence that he was never made aware at any time by
Kaunda that there was an outstanding balance of US$1 717. In any event during
that period sales were so high such that the plaintiff's agent would have been
paid on the same day or the following day. The defendant also said that he
personally paid for the second invoice in full to Vincent Bushu at his Norton
shop and that this was in the presence of Kaunda, his manager. He disputed the
material aspects of the evidence of both of the plaintiff's witnesses and said
that he saw the acknowledgment of debt for the first time at court. He said
that after the receipt of the supply reflected at p 6 of exh 1 as having been
made on 4 October 2010, he advised Bushu that their prices had become
comparatively higher than others. Bushu offered him a discount of US$480 but
the price remained too high. After that date he started buying cigarettes from
other suppliers whose prices were slightly cheaper. He never received any
communication from Bushu until he saw the summons which came as a surprise to
him. No one ever asked for any outstanding monies from him and the plaintiff's
witnesses' testimony to that effect also shocked him. The defendant said that
the signature on the acknowledgment of debt was not his. He said that the cash
invoice was proof of the payment that he made to Bushu. The defendant said that
Kaunda later left employment and he was not sure of his current whereabouts.
Certain unsatisfactory aspects of the witness' evidence will be highlighted
later in this judgment. He was not an impressive witness.
Chikowa Kaunda was the next witness for the defence. He said that he was
employed by the defendant as a manager for close to a year and that he left
employment in November 2010. He said that the plaintiff company used to supply
them with cigarettes. The plaintiff company would advise them as to when they
would come to make deliveries and they in turn would raise the money in order
to pay for the cigarettes. They would pay for the delivered consignment
immediately upon receipt of it. The plaintiff's sales agents would issue them
with a cash invoice as proof of payment. He said that Vincent Bushu told them
that they only issued cash receipts. He said that they were not afforded credit
facilities by the plaintiff. He agreed that he met with Bushu at Pamuzinda
where he received a consignment of cigarettes and paid $10 430 to Bushu leaving
a balance of $1 717. Bushu wrote the amount of the outstanding balance at the
bottom of the cash invoice and said that he would collect the balance on that
same day from their shop in Norton. The defendant's case was closed after this
witness had testified.
The acknowledgment of debt relied on by the plaintiff was attached to the
summons commencing this action. The defendant's claim that he was seeing the
document for the first time in court cannot therefore possibly be true. The court
does not believe him. In fact para 2 of the defendant's summary of evidence
states:
“Defendant will say that he learned with shock and total
disbelief when he received a summons to which was attached a document
purporting to be an acknowledgment of debt allegedly signed by him.”
The defendant denied having speculated as to who may
have forged the document whose authenticity he challenged. He was however
unable to explain why his counsel had put it to Bushu that the defendant
considered that he was probably responsible for concocting the document. That
suggestion to Bushu was laid to rest by Chiwara who stated in his evidence that
he was the author of the document and this was corroborated by Bushu. Both
Chiwara and Bushu said that the defendant signed the document in their presence
and whilst they were in Chiwara's vehicle which was parked outside the
defendant's Norton shop. The defendant's witness identified the signature on
the document as that of the defendant. He was the defendant's manager for more
than a year. He would therefore be expected to have been familiar with the
defendant's signature. His evidence in this respect thus tends to lend credence
to the plaintiff's version of events. It would have made sense for the
defendant to call his wife to corroborate his denial of ever having been
rescued by Chiwara and Bushu after having had a vehicle breakdown in Mhondoro
and of his wife having left them in Chiwara's vehicle whilst discussing the
defendant's indebtedness to the plaintiff company. He did not.
Besides denying having signed the acknowledgment of debt, the defendant also
denied owing any of the monies claimed by the plaintiff in its summons. During
the trial the defendant led evidence to the effect that the monies claimed had
been paid to Bushu at or around the time of the deliveries. Yet the defendant
did not in his plea make such an averment that the monies claimed had all been
paid (to Bushu) as he might reasonably be expected to do if the monies had in
fact been so paid. This would be expected especially as the detailed
acknowledgment of debt was attached to the summons. It is highly improbable
that Chiwara would have connived with Bushu to fabricate or forge the
acknowledgment of debt as well as the defendant's signature on it in order, and
with a specific purpose, to defeat what would have to be an anticipated defence
by the defendant that all the money had been paid to Bushu. Such a conspiracy
would require that Chiwara knew that the money had been paid to Bushu and that
he was aware that Bushu had decided not to account for it to his employer and
had converted it to his own use. In such a scenario Chiwara would be in a
deliberate conspiracy with a thief to deceive the court into believing a false
defence. Furthermore, the thief would have been allowed to remain in employment
by an employer whose management was aware of the salesman's dishonesty.
Alternatively, Chiwara would have been fooled or misled by Bushu into believing
that the defendant had not paid what was due to the plaintiff. Such a
possibility is decimated by the evidence of Chiwara regarding how the
acknowledgment of debt came into being. The corroboration of Chiwara's evidence
by Bushu with regard to the acknowledgment of debt would have been not
only an unexpected but also a most welcome surprise to Bushu, the supposed con
artist, but would also have been a surprise to the plaintiff's counsel. I find
both scenarios to be also highly improbable on the evidence adduced before this
court.
The defendant and his witness both said that the defendant kept a record of all
payments made by his business. He then surprisingly said that such records were
no longer available as he had destroyed them all. The invoices forming the
basis or subject matter of the plaintiff's claim are dated 22 September 2010 on
which there was an outstanding balance of US$1 717 and 4 October 2010 in the
amount of US$12 570 giving a total amount of US$14 287 as claimed by the
plaintiff. These dates are of significance in that the summons in this matter
was issued on 18 October 2010, barely a month after the issuance of the earlier
invoice and two weeks after the second invoice. I find it highly improbable
that the proprietor of a business would destroy all payment records of such an
importance within such a short period of time. It in fact becomes ridiculous
that such records would be destroyed after the defendant becomes aware of a
suit against him in which he would need such records to prove his defence. In
fact his plea would have been more than a bare denial that he owes the claimed
amounts.
When the defendant was on the witness stand he said that he did not know the
then current whereabouts of his witness Kaunda yet the witness did attend court
soon thereafter and stated that he was still using the same mobile number and
was still residing at the same address as when he was still employed by the
defendant. The defendant only had to make a phone call to get the witness to
come to court. According to the defendant he needed to find out from the
witness' relatives if his old mobile number was still in use. He was unable to
explain why. I find this to be incredible. Furthermore, if it was Kaunda who
paid the US$1 717 to Bushu, and if Kaunda was still in the defendant's employ
at the time when the US$12 570 is claimed to have been paid, a time well after
the issue of summons, one would have expected the defendant to have advised
Kaunda of the law suit such that he would have been aware of it before he left
the defendant's employ. One would also expect the defendant to have advised
Kaunda of the possibility of him having to be a witness should the matter
proceed to trial as it eventually did. Alternatively, his counsel would have
been aware of the role that he played and thus the need for Kaunda to testify;
Kaunda would not have been looked for at a very late stage towards the end of
the trial. As it eventually turned out, Kaunda was only a phone call away.
There was thus no reason why he was called almost as an afterthought.
Whilst the plaintiff's evidence was to the effect that the relationship between
the parties terminated because its practice was not to supply more goods to a
customer until all due payments had been made for goods already supplied, the
defendant's evidence was to the effect that the relationship had terminated
because the plaintiff's prices had become too high. The rest of the evidence
adduced before this court does not support the defendant's stance.
Another unsatisfactory feature of the defendant's evidence
was to the effect that his details as recorded on the acknowledgment of debt
were taken from his application to BAT for credit facilities yet a number of
details do not appear on that document. These include the name “Fungai”, the
address “Mpofu Street” as well as the defendant's ID number. He sought to
explain this by stating that there were other documents that were attached to
his application forms to BAT. He did not state what documents these were. He
also failed to explain, even to his own counsel, how the application form and
the other documents that he was referring to would have come into the
possession of the plaintiff. His evidence in this regard is highly improbable.
Initially the defendant said that he started dealing with the plaintiff when he
signed the application for credit facilities with BAT. He then said that the
relationship started when the plaintiff's salesmen started coming to his shop
after the cessation of the credit facilities by BAT. Whilst under cross
examination he said that he might have been dealing with the plaintiff even
before he dealt with BAT. As submitted by plaintiff's counsel, the question
then arises why the defendant could not continue with BAT on a cash basis. In
my view, the probabilities point to the fact that the relationship with the
plaintiff was a credit facility as testified to by the plaintiff's witnesses
and I so find.
On the basis of the above discussion it appears to me that the plaintiff has on
a balance of probabilities proved that the defendant signed the acknowledgment
of debt forming the basis of its claim. It also seems to me that the plaintiff
has also proved that the defendant owes it the amount claimed. In Pillay vKrishna
1946 AD 946 at 955 the following was stated:
“There is direct authority for saying, as I suggest, that
the rule placing the onus of proving payment on the person who alleges it
really depends on the principle that the onus is on the person who affirms and
not on him who denies … all the Roman and Roman Dutch authorities who deal with
the subject agree on (the rule's) existence.”
The plaintiff's counsel aptly referred to other cases in
which Pillay's case has been followed: Marchand & Another v
Butler's Furniture Factory 1963 (1) SA 885; Rammorth vBunsee
1961 (1) SA 394 and Standard Bank of South Africa Ltd v Oneanate
Investments (Pty) Ltd (In liquidation) 1998 (1) SA 811 (SCA) at 823.
For the above reasons the plaintiff's claim must succeed. The probabilities are
overwhelmingly in the plaintiff's favour. Whilst the prayer by the plaintiff
for costs on the higher scale is understandable, it appears to me that it would
be fair to award costs to the plaintiff on the ordinary scale.
In the result it is ordered as follows:
The defendant shall pay to the
plaintiff the sum of US$14 287.00 together with interest thereon at the
prescribed rate reckoned from the date of issuing summons to the date of
payment in full and costs of suit.
Dhlakama B Attorneys, plaintiff's legal
practitioners.
G. Machingambi, Legal Practitioners,
defendant's legal practitioners.
