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
