NDOU J: The
plaintiff issued out summons against the defendant claiming payment of the sum
of 8 200 British Pound Sterling being monies deposited by plaintiff with the
defendant. The plaintiff also seeks that
the defendant pays interest on the said amount at the relevant rate and costs
of suit. The background facts of the
matter are the following. In 2000 whilst
the plaintiff was based in the United Kingdom he became aware that the
defendant had an investment progamme for overseas based Zimbabweans. According to the plaintiff he contacted the
defendant through its employees. An
agreement was entered into by the parties.
In terms of this agreement plaintiff deposited the sum of British Pound
Sterling 8 200 pounds. It was agreed
that the money would be changed into Zimbabwean dollars by the defendant. It was also agreed that defendant would
invest this sum on behalf of plaintiff.
Indeed this was done by defendant as was proved in court. The point of difference between the parties
was on what would happen to both the capital sum and profits after the
investment matured. The issues are,
therefore, the following -
(a)
Whether
defendant through Bob Matemera and Henry Kwangwari undertook that, the Zimbabwe dominated interest earned from
the investment of 8 200 pound Sterling, would be converted, together with the
capital amount into Pound Sterling.
(b)
If
there was such an agreement, and defendant was in breach of the same, whether
plaintiff suffered a loss of 8 200 Pound Sterling and whether defendant is
liable to pay back the said amount to plaintiff with interest as claimed.
The onus is on the plaintiff - Pillay v Krishma 1946 AD
946 at 949. It is common cause that the
alleged agreement was not in writing.
The question, therefore, is whether plaintiff has adduced evidence which
on a balance of probability proves the existence of the alleged agreement
taking into account the circumstances of the case. It is common cause that Bob Matemera and Henry
Kwangwari are no longer in the employ of defendant. The evidence available for defendant is the
documentary evidence and knowledge of the banking policies applicable
then. The plaintiff testified that he
saw a fax emanating from the defendant indicating that the money would be
invested via Treasury Bills and Bankers Acceptances. The fax also detailed the prevailing
rates. In pursuant to this information,
he made an application to open two accounts, namely the Foreign Currency
Account ('FCA") and the Zimbabwe Denominated Account ("ZDA") with the
defendant. It is his testimony that the
FCA was to be used to receive foreign currency i.e. British Sterling Pound that
he wanted to invest. And that the ZDA
was the account which the British Pounds were to be paid into and thereafter
converted into Zimbabwe dollar. The
latter would then be invested in Treasury Bills or Bankers Acceptance or
whatever investment. Plaintiff said he
did not really mind whichever as he had faith in the defendant as his
bankers. He said that he did receive a
statement of account which confirmed receipt of his 8 2 00 Pound Sterling
deposited into his FCA, the transfer of this amount into his ZDA as a vehicle
for investment. He was satisfied that
his instructions had been carried and he left the investment to be run by
defendant. The documentary evidence
produced confirmed that that amount was indeed invested and it indeed earned
some interest as envisaged by the investment arrangement. His contention was that the agreement between
the parties was that the FCA and ZDA were going to run parallel. He said this was the verbal undertaking made
on defendant's behalf by its then employee Bob Matemera and later confirmed by
Henry Kwangwari. In other words these
two employees of defendant made a verbal undertaking that the Zimbabwe dollar
denominated interest earned from investment of 8 200 Pound Sterling would be
converted, together with the capital amount, into Pound Sterling. This is the crux of the matter in this case.
The defendant called two witnesses namely Evelyn Nyakotyo and
Tatenda Mutunduwe who were employed as General Manager Distributions: Branch
Sales and Services and Business Relationship Manager: Small to Medium
Enterprises respectively. Tatenda
Mutunduwe investigated the matter after the plaintiff raised a complaint. She went through all the records in connection
with the plaintiff's accounts. She went
through the investments done on behalf of the plaintiff by defendant. The long and short of it is that all interest
earned from investments was transferred into plaintiff's ZDA. The witness explained that they tried to
locate Bob Matemera but failed. Be that
as it may, the witness indicated through documents there is evidence on how
this investment was run and how the plaintiff made withdrawals from his ZDA
until the funds were exhausted. The
witness categorically indicated how the plaintiff utilized all the funds in his
account. The witness also evinced that
it was also unlawful to do what the plaintiff says Bob Matemera undertook. The Reserve Bank of Zimbabwe Guidelines
applicable at the time, (of 1986) did not allow the conversion of Zimbabwe
Dollar investment into foreign currency.
All foreign currency required by individuals to be bought using Zimbabwe
Dollar had to authorized by the Reserve Bank.
This testimony was substantially corroborated by that of Evelyn
Nyakotyo. I find that it is highly
improbably that plaintiff and Bob Matemera (acting on behalf of defendant)
entered into the verbal agreement as alleged.
Further, the investment portfolio of plaintiff shows that not only did
plaintiff invest the 8 200 Pound Sterling through defendant but introduced more
money for investment. If defendant was
in breach of the initial agreement, it is highly unlikely that plaintiff would
ask defendant to add to his already existing investment even more money. Plaintiff must have been satisfied with the
manner in which his investment was performing hence the introduction of more
funds. I find the plaintiff's testimony
incredible and I am impressed by the defendant's two witnesses. Their testimony is supported by records of
the plaintiff's accounts. It is clear
from their records that the full amount of 8 200 Pound Sterling has been
accounted for. It was converted,
invested and is earned interest. Both
the capital amount and interest earned were withdrawn and used by the
plaintiff. No evidence was led by the
plaintiff to show that the failure to convert the capital amount and interest
into Pound Sterling resulted in a loss to plaintiff and if so how much. Not only has plaintiff failed to prove that
there was an agreement between himself and defendant as alleged, he has also
failed to prove any damages suffered, and if suffered, the quantum of such
damages. The claim is devoid of merit.
Accordingly, I dismiss the plaintiff's claim with costs.
Messrs Moyo & Nyoni, plaintiff's legal practitioners
Webb, Low & Barry,
defendant's legal practitioners
