BERE J: On 18 October
2012, I pronounced my decision in this case. I indicated my reasons would
follow. Here they are:
The plaintiff originally issued
summons in this court on 24 October 2005 against the defendant seeking an order
to compel the defendant to return her property which had been deposited with
the defendant for safe keeping when the plaintiff left this country for the
United Kingdom.
The plaintiff had also sought in the
alternative to be paid the estimated equivalent value of the goods in question.
Additionally the plaintiff sought to recover general damages for pain,
emotional stress and trauma caused by the unlawful disposal of her property
without her consent and knowledge.
The plaintiff's claims were
originally pegged in the local currency.
Owing to the advent of
dollarization, on 30 September 2010, and by consent the plaintiff's claim was
amended to reflect the currency currently in use in this country.
The plaintiff's claim was amended in
the alternative to read that in the event of the defendant failing to restore
the plaintiff's property, the defendant be ordered to pay a sum of US$25 000-00
being damages suffered by the plaintiff when the defendant wrongfully and
unlawfully sold the plaintiff's property.
The plaintiff's claim for damages
for pain and suffering, emotional stress and trauma was put at US$3 000-00.
The interest at the prescribed rate
on the total amounts of claims was claimed from the date of summons to date of
full payment.
THE FACTS THAT ARE NOT IN DISPUTE
The facts
giving rise to this action can be summarised as follows:
On 28 March 2000 the plaintiff
lodged her household goods with the defendant for storage at agreed monthly
charges. When the plaintiff lodged her goods with the defendant she personally gave
her contact address as 48 A Manor Avenue, Brockley, London SE4 IPD. This is
apparent from exh 1 (receipt for goods) signed by the plaintiff at the time the
goods were taken into the defendant's storage. This is the only document which
was signed by the plaintiff.
It is not in dispute that the
plaintiff's stored goods were to attract a monthly storage charge and that
payment in this regard was to be made in advance.
In addition, it was a specific term
of the agreement between the plaintiff and the defendant that should the
storage charges “remain unpaid for three (3) consecutive months, Glens reserves
the right to sell part or all the goods by public auction without notice in
order to defray the accrued charges.”
It is the alleged violation of this
clause of the contract that has led to these proceedings.
Following the alleged default by the
plaintiff in the payment of storage charges the bulk of her property was sold
through public auction. Some of the property which could not possibly have been
sold like the plaintiff's marriage and educational certificates could not be
accounted for. The same happened with other household goods which did not
appear on the list of items sold by public auction. These were simply not
traceable.
It is also common cause that after
the defendant had taken what it believed was due to it, there was some residue
due to the plaintiff and that it was not until the plaintiff had gone to the
defendant to enquire about her goods that she was advised of both the sale and
the residue.
The plaintiff's property was sold by
public auction without her knowledge and in disposing of the property in the
manner it did the defendant relied on the terms of the conditions of storage as
perceived by it.
This matter was referred for trial
on only one issue, namely: “Whether or not the defendant breached the contract
between the plaintiff and the defendant or alternatively whether or not the
defendant acted wrongfully and unlawfully in the circumstances, if so the
quantum of damages.”
THE EVIDENCE
Only two witnesses gave evidence in
this case, namely, the plaintiff and Mr Josephat Murape, the defendant's
representative.
The parties were not in agreement on
virtually all the issues they testified on and in particular as to the alleged
arrears at the time of the sale of the plaintiff's property. The defendant
through its representative put the figure for arrears at Z$1 152 850-35 but
could not provide a satisfactory explanation as to how that figure was arrived
at suggesting that because of hyperinflation at the time the originally agreed
storage charges kept on being changed. The witness said all these changes were
in correspondence sent to the plaintiff's locally chosen addresses.
The plaintiff's approach in this
regard was to vehemently deny ever receiving any correspondence or notices from
the defendant. The plaintiff put up a very strong and persuasive argument that
in the only paper that she signed and lodged with the defendant before her
departure for the United Kingdom she gave her contact address as the UK one.
This averment accords with or is consistent with exh 1 which is the only
document signed by the plaintiff.
When it was suggested to the
plaintiff in cross-examination that the relevant notices to alert her of the
arrear charges were either sent to number 34 Greg Avenue; Number 16 2nd
Crescent Street, Warren Park Harare and to number 7 Delomo Place, Mt Pleasant,
Harare, the plaintiff denied ever instructing the defendant to use any of such
addresses and maintained that her contact address which the defendant was
supposed to use as per her written instructions was 48 A Manor Avenue,
Brockley, London SE4 IPO.
The plaintiff denied ever giving the
defendant instructions to send any correspondence to any other place other than
the aforesaid United Kingdom address. The plaintiff maintained she did not know
anyone on the addresses allegedly used by the defendant. She further maintained
that she did not know of a place called 7 Delomo Place, Mt Pleasant where some
of the letters addressed to her were sent but that her place was called 7 Delano
Place, Mt Pleasant (my emphasis), a factor which even the defendant's counsel
was later to concede in his written submissions.
The evidence of Murape corroborated
the plaintiff's evidence that none of the correspondence to the plaintiff was
ever addressed to her chosen United Kingdom address as per her clear
instructions on exh 1.
If the court accepts that the
correspondences meant for the attention of the plaintiff were sent to the wrong
addresses (which factor the court has no option but to accept) it must
therefore be the natural conclusion that the plaintiff must be believed when
she said she was never advised of the arrear payments and further that the
defendants unilaterally decided to sell her property to allegedly defray the
accrued charges which she was not aware of.
WAS IT COMPETENT FOR THE DEFENDANT
TO SELL THE PLAINTIFF'S PROPERTY WITHOUT ANY RECOURSE TO
COURT____________________________
The main thrust of the defendant's
position is that the contract allegedly entered into by the plaintiff and the
defendant allowed the latter to act in the manner it did.
In his closing submissions counsel
for the defendant equated the contractual arrangement to one governed by what
is referred to as a “paratie execution clause” which he argued has
support in our law. Counsel referred me to the case of Changa v Standard
Finance Limited[1]where
there is some reference to this principal of our law.
There can be no argument in my view
that “paratie execution” in appropriate circumstances remains part of
our law subject to the qualification that the creditor is precluded to act in a
manner that prejudices the debtor in his/her rights.
In this jurisdiction the operation
of “paratie excutie” as a principle of our law can be traced back
to the case of Aitken v Miller[2]
per BEADLE J where the headnote reads:
“In Southern Rhodesia an agreement
for the sale by means of paratie executie of movables, delivered to a
creditor by a debtor, is valid and enforceable[3]”.
The qualification in the operation
of paratie excutie is succinctly put in the following terms in Osr
v Hirsch, Loubser and Co Ltd[4]:
“It is, however, open to the debtor
to seek the protection of the court if, upon any just ground he can show that,
in carrying out the agreement and effecting a sale, the creditor has acted in a
manner which has prejudiced him his rights.”
It occurs to me that paratie
excutie, as a principle of law is not something that our courts have
blindly followed. I will later in this judgment deal with either its
applicability or non-applicability in the instant case.
In contrast counsel for the
plaintiff in this case put up an equally strong and persuasive argument that in
her conviction the clause that governed the plaintiff and the defendant in this
case, and relied upon by the defendant in disposing of the plaintiff's property
was a “pactum commissarium” and unenforceable, and therefore invoking it
in this case was incompetent on the part of the defendant.
In supporting her position the
plaintiff's counsel referred me to the case of Chimutanda Motor Spares (Pvt)
Ltd v Teclar Musare & Anor[5]
where the leaned Judge, MUTAMBANENGWE(as he then was) made a fairly detailed
analysis of a pactum commissorium and why the law reprobates it.
In the particular case he was seized
with the learned judge remarked;
“I find the agreement as to the
consequences of defaulting on the defendant's part is a pactum commissorium
and as such unenforceable.[6]
It would seem to me that in all the
cases where an attempt has been made to rely on a paratie executie, both
the defendant and the plaintiff would be in agreement as regards the liability
of the latter. Liability is never an issue in those cases as there is unanimity
in that regard.
In the case before me there is
certainly no unanimity as regards the liability of the plaintiff. This issue
occupied the bulk of the proceedings in this case and even after the case was
concluded, it was not possible to establish the alleged liability of the
plaintiff because of the position adopted by the plaintiff and accepted by the
court that she was never advised of her liability through her chosen contact
address.
It occurs to me that before the
defendant sought to dispose of the plaintiff's property in the manner it did,
the plaintiff's liability ought to have been established first through a court
process. In this case there was no agreement as regards what was due to the
defendant hence the inapplicability of the principle.
Even if one were to assume that parate
execution was applicable in this case, it is clear to me that in
unilaterally deciding that the plaintiff owed it certain sums of money in a
situation where the defendant acted as both the prosecutor and the adjudicator
in determining what was allegedly due to it, the defendant acted to the
prejudice of the plaintiff. If this is accepted (as it should be, in my view),
then, it becomes clear that the situation in this case projects the
qualification highlighted in Osry's case (supra) where the
plaintiff has a justified reason to have recourse to court.
The plaintiff's position in this
case is that she was never given the opportunity in court to contest what was
allegedly due to the defendant in terms of outstanding payments before the
defendant unilaterally decided on the figure which was followed by the sale of
her property by way of public auction. There is persuasion in the argument
advanced by the plaintiff's counsel that there was need for the plaintiff to
get a court authorization/order to dispose of the plaintiff's property. Loosely
interpreting the contract in the manner suggested by the defendant's counsel
would in my view have grave consequences in that that approach would stampede
upon the rules of natural justice which demand that even a murderer must be
heard first before drastic or adverse action is taken against him/her.
Allowing the defendant to embark on
unilateral action would give the defendant to act as both the prosecutor and a
judge in a matter it has vested interest in and in my view this would not
accord well with public policy. Consumers or those in the plaintiff's position
would be most vulnerable to such conduct as exhibited by the defendant in this
case. There is need to curtail of the conduct of the defendant by ensuring that
it does not act to the prejudice of the consumers of its services.
It is equally disturbing that
contrary to the averments by the defendant, the evidence in this case clearly
showed that not all the property that was deposited with the defendant was sold
through public auction. Property like the plaintiff's marriage certificate,
children's academic and birth certificates could not possibly have been sold
and such property was not accounted for. It was only in a fully-fledged
adversarial proceedings which ought to have preceded the disposal of the
plaintiff's goods that such issues should have been ascertained.
I find it even more disturbing that
even after unilaterally selling the plaintiff's property, the defendant did not
bother to trace the plaintiff at her chosen contact address to give her the
residue from the sale of her property after taking into account what it deemed
was due to it.
One gets the impression that if the
plaintiff had not taken it upon herself to take the trouble of going to make
enquiries to Glens (the defendant) she would never have known what happened to
her property. The conduct exhibited by the defendant falls far short of the
best practice in conducting business in a transparent manner.
Everything said I am more inclined
to accept, as persuasively argued by the plaintiff's counsel that the condition
relied upon by the defendant in selling the plaintiff's property without the
knowledge, consent and or approval of the plaintiff was a pactum
commissorium one, which our law reprobates.
If this position is accepted (as it
should be), then it logically follows that the defendant acted wrongfully and
unlawfully in facilitating the disposal of the plaintiff's property in the
manner it did.
REPLACEMENT OR COMPENSATION OF THE
PLAINTIFF'S PROPERTY
Because of the distortions brought
by dollarization it was never going to be easy for the plaintiff to try and
give an accurate value of her property which was unlawfully sold by the
defendant.
The plaintiff must however be
commented for having taken the trouble of trying to find comparable prices or
values of her property. The plaintiff visited some departmental shops like
Meikles and Barbours collating possible replacement values of her property. In
this regard the plaintiff produced two sets of quotations from Barbours and
Meikles Departmental Sore whose total value adds up to US$28 454-00.
Throughout the proceedings, I did
not hear the defendant making the slightest attempt to challenge the quotations
or values given by the plaintiff. If anything the thrust of the defendant's
representative was merely to say that his company was justified in selling the
plaintiff's property in the manner it did, something which this court finds to
have been wrongful, unlawful and distasteful.
The uncontested value of the
plaintiff's property adds up to US$28 454-00 but in her summons she claimed
US$25 000-00.
I am more inclined to grant to the
plaintiff the figure in her summons as a fair estimation of her unlawfully sold
property as opposed to the US$28 454-00 because there was no attempt by her
counsel to have her claim amended to accord with her evidence at the close of
the proceedings.
THE CLAIM FOR DAMAGES FOR PAIN AND
SUFFERING
I have had the privilege of seeing
the plaintiff testify in these proceedings.
That the plaintiff was pained by the
loss of her property through the conduct of the defendant cannot be doubted by
anyone. In her own uncontested testimony the plaintiff said she actually
fainted at Glens when she was told that all her household property deposited
with the defendants had been sold.
Even when she gave evidence in this
court it was evident that she had been severely traumatised by the loss of her
goods, the pain she was in was unmistakable and was there for everyone to see.
This probably explains why the defendant's representative did not make any
attempt to challenge her evidence in this regard.
In this regard I consider US$1
500-00 as fair and reasonable as general damages for the plaintiff's pain and
suffering.
Consequently I order as follows:
(1) That judgment be and
is hereby granted in favour of the plaintiff in the sum of US$25000-00 being
the replacement value of her property wrongfully and unlawfully sold by the
defendant without the plaintiff's knowledge and or authorization.
(2) That the defendant
pays US$1 500-00 to the plaintiff for damages for pain and suffering occasioned
by the unlawful conduct of the defendant.
(3) That both payments
attract interest at the prescribed rate from the date of judgment (18 October
2012) to date of payment in full.
(4) That the defendant
pays costs of suit.
Goneso & Associates, plaintiff's legal practitioners
Mtetwa & Nyambirai, defendant's legal practitioners
