The
applicant sought an order nullifying the sale of a certain vehicle by the first
respondent to the second respondent. At the end of the hearing I granted the
order sought in terms of the draft. The order read as follows:
“1.
The agreement of sale by and between the 1st and 2nd
Respondents in respect of the motor vehicle Nissan March ACP 3268 be and is
hereby declared unlawful.
2.
Applicant be and is hereby declared the lawful owner of the Nissan March ACP
3268.
3.
Respondents jointly and severally shall pay costs of suit.”
I
gave the reasons for my decision ex tempore. However,
the second respondent has now asked for them in writing.
Here
they are.
In
December 2012, the first respondent purported to sell the vehicle in question…,
to the second respondent. Apparently, it had been a swap deal. For the purchase
price, the second respondent had surrendered his own vehicle, also a Nissan
March, and had topped it up with cash. At the hearing, there was a conflict as
to how exactly the sale had been arranged and what exactly had been the agreed
purchase price. But it was common cause that the sale vehicle had belonged to
the applicant.
At
the time of the purported sale, the applicant had been in Kariba. The sale
vehicle had been in Harare. The respondents had also been in Harare. The first
respondent had contacted the applicant by phone that he had found a buyer for
the sale vehicle. The applicant had arranged with his sister to make the sale
vehicle available for inspection by the potential buyer. The buyer was the
second respondent. The next thing was that the first respondent had sold the
vehicle to the second respondent. The sale document was a crude Agreement in
long hand on Kingstons Limited's stationery. It read as follows:
“I, RUZVIDZO KUDZAI, ID 63-1035356 V24, residing at Glennorah, do hereby solemnly and sincerely
swear/declare the following:-Sold my Nissan March Reg no. ACP
3268 as an swop and top with a Nissan March Reg ABY 5930 with cash top of
USD800 paid USD600 Balance of USD200 to be paid on or before the 15th
of December of 2012.”
The
document was signed by the second respondent as “BUYER”; the first respondent
as “SELLER” and by two other persons as witnesses.
The first
respondent did not file any opposing papers.
The
second respondent, through his legal practitioners, who later renounced agency,
did. However, almost all the averments in the second respondent's opposing
affidavit were inadmissible hearsay. He alleged he had been aware that the
applicant had been communicating with the first respondent. He referred to a
certain phone text message allegedly from the applicant to the first respondent
which he said had been shown to the criminal court. Apparently, the matter had
been to the Criminal Court at the instance of the applicant. He had reported a
case of theft of the sale vehicle against the first respondent. However, it
seems the first respondent not been convicted. It also appeared that it was the
applicant who had ended up paying a deposit fine to the police for a false
report. The applicant claimed he had been coerced to pay the fine. He also
claimed that he had filed a complaint against the conduct of the police.
However, I found none of these details relevant.
The
major ground of opposition by the second respondent to the relief sought had
been that the applicant had legitimately sold the vehicle to him through the
first respondent as his agent. He claimed it was only because the applicant had
been unhappy with the quantum of the cash top up that the second respondent had
paid that he was now reneging on the Agreement. The applicant had allegedly
wanted US1,000=, the second respondent averred. But he had refused to pay such
an exorbitant amount. He had agreed to only US800= which he had paid. The
second respondent also claimed that the applicant had felt let down by his
agent, the first respondent, in that he had demanded an amount of commission
which the applicant had felt had been exorbitant and unjustified.
Given
what was common cause, namely, that the sale vehicle had belonged to the
applicant; given that the purported Sale Agreement had patently been false and
therefore a nullity, and given that the transfer of possession of the vehicle
to the second respondent had been predicated on such a nullity I considered
that the onus to prove a genuine sale of the vehicle had lain on the second
respondent. I considered that the second respondent had come nowhere near
discharging that onus.
The
second respondent's affidavit had essentially been hearsay testimony. There had
been no opposition from the first respondent who had been central to the whole
dispute.
It
was on that basis that I granted the relief sought.
