I
believe the year 1989 is a good starting point for the story of one
John Chidyiwa, the Managing Director of the plaintiff, and the
defendant. Then, the two knew each other as work-mates in the
Department of Customs and Excise (as it was then known).
In
or about 1993, the two became quite close friends. ...
I
believe the year 1989 is a good starting point for the story of one
John Chidyiwa, the Managing Director of the plaintiff, and the
defendant. Then, the two knew each other as work-mates in the
Department of Customs and Excise (as it was then known).
In
or about 1993, the two became quite close friends. The friendship
grew so close that members of John Chidyiwa's family knew members
of the defendant's family and vice versa. The defendant could visit
John Chidyiwa's home in Chivhu in the absence of John Chidyiwa and
the reverse would also happen. As of May 1997, the friendship between
them could be described as excellent. They then went into business
together.
In
or about May 1997, two Italian nationals approached John Chidyiwa
(alone or in the company of the defendant), and encouraged him to
start a freighting company. Urgent Services (Private) Limited came
into existence. The directors of this company were one Marinella
Cernuschi (one of the Italians), John Chidyiwa, and the defendant.
A
dispute arose between the parties as to when and how the defendant
became a director of Urgent Services (Private) Limited. For the
purposes of determining the real dispute between the parties, it is
not important that I make a finding in respect of this dispute. In my
view, it is sufficient to note that as of May 1997, when Urgent
Services (Private) Limited submitted its register of directors and
secretaries to the Registrar of Companies, the defendant was listed
as a director of the company.
In
due course, Urgent Services (Private) Limited became the plaintiff
through a change of name in accordance with the provisions of the
Companies Act [Chapter 24.03]. John Chidyiwa assumed the position of
Managing Director of the company while the defendant became the
Operations Manager.
In
or about September 1998, six haulage trucks and six trailers were
purchased. Three of each were registered in the name of John Chidyiwa
with the remainder registered in the name of the defendant. A few
days after each registration, the registration of some of the trucks
and trailers were amended to add, at the end of each name, the words
“trading as U-Freight”.
The
circumstances of the purchase and registration of these trucks and
trailers form the centrepiece of the legal dispute before me…,.
In
or about April 2001, the defendant and the plaintiff parted company.
The defendant tendered a letter of resignation, and, upon leaving the
plaintiff, indicated, by word and by deed, that he regarded three of
the trucks and three of the trailers as his personal property. As a
result of this indication by the defendant, few skirmishes occurred
on the highways during which trucks were “hi- jacked” by one
party from the other, resulting in a number of applications in this
and the Magistrates Court, culminating in this action.
The
plaintiff has, throughout these applications, maintained that the
entire fleet of six trucks and six trailers are its sole and absolute
property....,.
I
now turn to consider what I believe are the two key issues between
the parties;
(a)
The first one is whether it was the plaintiff that purchased and
acquired ownership of the six trucks and six trailers.
(b)
The second is what effect, if any, the registration of the motor
vehicles in the individual names of the two directors had on the
ownership of the trucks and trailers.
In
considering this matter, I have put the onus on the plaintiff to
prove that the funds used in purchasing the trucks and trailers were
its funds. I have done so in light of the denial by the defendant
that such funds belonged to the plaintiff - which denial has had the
effect of putting into issue the source of the funds.
In
doing so, I have been guided by the general principle of civil
procedure to the effect that he who avers must prove.
According
to the pleadings filed of record, the plaintiff is averring that it
purchased the trucks and trailers using its funds. Applying the
general principle on the burden of proof, the applicant therefore
bears the onus of proving, on a balance of probabilities, that the
funds used in purchasing the trucks and trailers were its own, if it
is to succeed in its action.
It
is common cause that the defendant went to Dubai towards the end of
September 2000 where he collected the money used in paying the
deposit for the purchase price of the six trucks from Tyco
International. It is further common cause that the sum of US$50,000
was paid to Tyco International as a deposit for the trucks. The
balance, in the sum of US$100,000 was transferred into the account of
Tyco International by way of telegraphic and Bank transfers emanating
from Dubai.
The
plaintiff has alleged that when the defendant went to Dubai, he was
going to a client of the plaintiff's to collect the money. The
evidence to support this contention came from John Chidyiwa, the
plaintiff's Managing Director. In this regard, John Chidyiwa
testified as follows:
The
plaintiff had some money in Dubai. It was owed this money by a client
who visited the plaintiff in Harare. He then invited John Chidyiwa to
accompany him back to Dubai to collect the money in person. He would
have gone himself with the client to collect the money had he not
been told that Dubai is very hot. He has a nose-bleeding problem and
the hot weather would have exacerbated the problem. He then sent the
defendant to collect this money.
Upon
his return, the defendant gave him US$50,000. A further sum of
US$95,000 was telegraphically transferred into the account of Tyco
International on the instructions of the defendant in his capacity as
the plaintiff's Operations Manager. A final Bank transfer was
effected in favour of Tyco International in the sum of US$5,000 to
complete the payment of the US-dollar component of the purchase price
for the six trucks.
Regarding
the payments that were to be made in local currency, the plaintiff
issued a cheque from its Zimbank Account in the sum of $1,443,607=80
for all the six trucks. The monies in this account were all the funds
of the plaintiff to which the defendant had not personally
contributed in any way.
On
this same issue, the defendant's evidence was as follows:
He
went to Dubai on the invitation of a personal client, one Ayman
Mohamed Suleman (“Ayman”). Ayman owed him the sum of US$230,000
as commission for the sale and export of katambura grass.
Ayman
paid for his travel to and from and accommodation in Dubai. He picked
up his ticket to Dubai ex Johannesburg Airport to which he had flown
at his own expense. In Dubai, he was accommodated at a hotel where
Ayman's wife is employed. Ayman gave him the sum of US$65,000 in
cash that he brought into the country. Of this money, US$50,000 was
paid over to Tyco International while the balance was illegally
changed into local currency through unauthorised dealers at above the
prescribed exchange rate. It was sold on the “black market”. The
proceeds from this illegal exchange were paid into the account of the
plaintiff and used to pay for the local currency component of the
purchase price of the trucks.
The
first factual dispute that I have to deal with is the identity of the
person in Dubai who gave the money to the defendant. In the same
breath, it is important to determine what the payment was for.
In
determining this issue, I take note of the fact that in his evidence
in chief, John Chidyiwa did not refer to the identity of the person
or persons from whom the money had to be collected. His affidavits
filed in case no HC4464/01 are equally silent on this issue. Indeed,
he does not indicate the name of the client he was supposed to have
accompanied to Dubai to collect the money were it not for his
nose-bleeding problem.
Under
cross-examination, he testified and maintained that one Ibrahim of
the Hayat Al Gad Agricultural Institute made the payment to the
defendant for a debt arising out of the sale and export of katambura
grass.
To
support his contention in this regard, John Chidyiwa made reference
to two documents. The first one is an alleged fax from the defendant
dated 29 August 2000 and addressed to Khalfan Malfalhil, and marked
for the attention of one Mr. Ibrahim. The fax is not signed by the
defendant but by someone purporting to sign on his behalf. In the
fax, the defendant is informing the recipient that 10,000 kilograms
of katambura
grass has been sourced and is giving directions as to how the
proceeds from the export of the grass should be handled.
The
plaintiff has also produced a copy of a fax from one Khalfan M
Alfalahi of the Hayat Al Gad Agricultural Institute, dated 10
February 2001 and addressed to the defendant. It purports to be in
response to the first document allegedly sent by the defendant in
August 2000. In the fax, the sender is advising the defendant as to
how certain payments were made for and on behalf of the defendant.
At
this stage, I wish to comment briefly that a total of six bundles of
documents were prepared by the plaintiff and produced with the
consent of the defendant. Amongst the pages making up the bundles
were copies of some of the documents. The two documents that I have
referred to above were copies and not the originals of the documents.
The defendant took no issue with the production of these copies. I
accordingly admitted the copies of the documents into evidence in
accordance with the provisions of section 11(a) of the Civil Evidence
Act [Chapter 8.01].
I
now turn to evaluate the evidence before me on this issue.
Firstly,
I shall deal with the documentary evidence produced by the plaintiff.
While copies of the documents were admitted into evidence, with the
consent of the defendant, they were not proven.
It
is the law relating to the proof of documents that are not public
documents that their authenticity must be proven. The authors HOFFMAN
& ZEFFERTH
observe
that evidence is normally required to satisfy the court as to the
authenticity of any tendered document.
In
H
& Dwitkoppen Agencies & Fourways Est v De Sousa 1971
(3) SA 941 TPD
it
was held…, that:
“The
law in relation to the proof of private documents is that they must
be identified by a witness who is either;
(i)
The writer or signatory thereof; or
(ii)
The attesting witness, or
(iii)
The person who found it in possession of the opposite party; or
(v)
A handwriting expert, unless the document is one which proves
itself,….”
In
the matter before me there was no admission as to the authenticity of
the documents tendered by the plaintiff. The only consent was to the
admissibility of copies in the place of originals.
The
defendant did not sign the first document. The person who allegedly
signed the document on his behalf was not called to authenticate the
document. On this basis, although the document was admitted into
evidence, I find that it has not been proved and is therefore not
evidence before me.
The
same faults can be found with the second document. It has not been
proved. No evidence has been led to show that it is authentic. The
author of the document was not called to testify. The person who
would have custody of the document was not identified and called to
testify. John Chidyiwa merely produced the document as part of the
bundles I referred to earlier on. No legal basis was laid for me to
accept the document as evidence. I therefore reject it
as not being authentic.
Assuming
that I have erred in rejecting the two documents as evidence on the
basis that they have not been proved, I would proceed to reject the
evidence in the second document as being hearsay evidence.
The
person who purportedly wrote the document was not called as a witness
in the trial before me. The document was tendered, not to prove that
there was correspondence between the defendant and Ibrahim, but to
prove that Ibrahim paid the amounts mentioned in that document to the
defendant. The veracity of the evidence purportedly given by the
document cannot be tested in any way.
In
my view, nothing would offend more against the rule against hearsay
evidence than accepting the documents as proof of payment of money to
the defendant by Ibrahim.
Regarding
the first document, even if I was wrong in holding that it has not
been proved, it cannot be said to be evidence that 10 tons of
katambura
grass were exported to the recipient. The document merely indicates
that 10 tons of grass had been found. Additional evidence would be
required to show that the 10 tons of grass were actually exported
after the document had been sent.
Finally,
the first document is clearly false. It purports to intimate that the
plaintiff exported 10 tons of katambura grass to Hayat Al Gad
Agricultural Institute. The contents of the document are in direct
contradiction to the oral evidence of John Chidyiwa that only 8 tons
of grass were exported to Hayat Al Gad Agricultural Institute….,.
Regarding
the telegraphic and money transfers that were effected in favour of
Tyco International by a person in Dubai, John Chidyiwa testified that
he did not know who was specifically instructed to do so by the
defendant. He maintained that the plaintiff had some clients in Dubai
who owed it money.
The
plaintiff maintained that it did export and sell some katambura grass
to various clients in Dubai, including the Hayat Al Gad Agricultural
Institute. Bundles and bundles of documents were tendered in evidence
in support of this averment.
At
this stage, I wish, again, to briefly comment on the manner in which
the plaintiff tendered its documents. This may have been by design or
by sheer inadvertence.
No
effort was made to link the documents so that they tell a complete
story of how a particular load of grass was sourced and then
exported, resulting in payment being received or credited to the
account of the plaintiff. The documents were not bound in the bundles
I have referred to in any discernible order meant to give them high
probative value. The plaintiff has only itself to blame for this
state of affairs.
In
the result, I have documents tending to show that the plaintiff
purchased certain tons of grass from individual sources, it exported
some of the grass for itself and exported some for its clients. On
the basis of such poorly presented evidence, even the plaintiff's
Managing Director has not been able to testify as to how much grass
the plaintiff exported for its own benefit and for which its clients
in Dubai owed it money.
I
deal in particular with the alleged export of grass to Hayat Al Gad
Agricultural Institute prior to September 2000. The evidence from
John Chidyiwa was to the effect that only 8 tons or 8,000kgs of grass
was exported to Hayat. This, he admitted, in cross-examination, and
after perusing the voluminous exhibits tendered at trial.
I
have also perused the exhibits and have satisfied myself that there
is no other evidence in the exhibits other than the export admitted
to by the plaintiff. In terms of exhibit 2…, the 8,000 tons of
grass exported to Hayat Agricultural Institute were only shipped on
26 November 2000. This was after the return of the defendant from
Dubai with the money. In any event, it was the evidence of John
Chidyiwa that all the exports done by the plaintiff to Hayat were
paid for through the Bank and the relevant CD1 forms acquitted.
According to the plaintiff's evidence, there was therefore no money
in Dubai from Hayat for the defendant to collect.
It
is my finding that the plaintiff's evidence on the source of the
money in Dubai is unreliable. It is contradictory and inconsistent.
For instance, the plaintiff has tendered exhibits on pages 3 and 14
of exhibit 5, being two airway bills relating to the alleged export
of 8 tons of katambura grass to Hayat on 20 September and 11 October
2000, respectively. The two exhibits are in direct contradiction with
exhibit 2 page 3 which indicates that the 8 tons of grass were
shipped to Hayat on 26 November 2000 - after the return of the
defendant from Dubai.
No
effort was made to explain this discrepancy in the dates.
Further,
the plaintiff's Managing Director's evidence, that only 8 tons
were exported to Hayat, is in direct contradiction to exhibits at
pages 18 and 24 of exhibit 1 tending to suggest that 10 tons were
exported to this client, earning the plaintiff a gross of US$135,000.
Again,
no effort was made to explain this difference.
It
is my finding that some of the documents were tampered with and then
tendered as proof that the plaintiff exported grass to clients in
Dubai.
In
view of the issues between the parties, it was unnecessary for the
plaintiff to tender exhibit 2 page 9 which is clearly a tampered-with
copy of exhibit 5 page 20. The plaintiff deliberately tendered as an
exhibit a document that had been tampered with regarding the details
of the exporters and consignee of the grass to give the impression
that it was the one exporting the grass.
On
the basis of the unsatisfactory nature of the evidence tendered by
the plaintiff on this issue, I formed the distinct impression that
the plaintiff tried to put together documents that it thought would
support one allegation at a time, without taking care to see whether
or not such evidence contradicted evidence already tendered or to be
tendered on another issue. This it could only do with false evidence.
While
the plaintiff may have had clients in Dubai to whom it had sold and
exported katambura grass, there is no evidence before me that any one
of those clients made the payment to the defendant in September 2000.
On a balance of probabilities, I find that the source of the money in
Dubai was one Suleman who paid it over to the defendant in the
circumstances alleged by the defendant.
It
has been the plaintiff's case that the local currency of the
purchase price of the trucks and for the trailers was financed from
the plaintiff's own resources. To this end, cheques issued from the
plaintiff's account with Zimbank to Tyco International and Trinity
Engineering were tendered in evidence.
The
plaintiff, through its trading, allegedly generated these funds.
The
plaintiff has led no further evidence as to how these funds were
generated even after receiving warning through the defendant's
opposing affidavits that the source of these funds would be put in
issue. Further, the plaintiff has alleged that it borrowed money from
one Steve Gibson to pay part of the purchase price of the trailers.
On
the other hand, the defendant has testified that the foreign currency
he brought from Dubai, together with an additional sum of US$65,000
brought to him by one Adell, a cousin to Suleman, was exchanged on
the “black market”. The proceeds therefrom were deposited into
the plaintiff's Bank account and cheques were subsequently issued
to Tyco International and Trinity Engineering.
While
it is possible that the plaintiff could have generated the sums of
money used in paying for the trucks and the trailers from its
business, I find this suggestion improbable. I say so because the
purchases of all the vehicles, six trucks and six trailers, were all
made within a short space of time, indicating that the plaintiff
already had the money or was assured of getting it in a short space
of time. According to the exhibits, the cheque payments to Tyco
International and Trinity Engineering were all made out within a few
days of each other. Between the 3rd
and 10th
of
October a total of $2 million dollars was paid out to the two
suppliers.
When
it was challenged that the US$15,000 that the defendant had was
traded on the black market and raised $1,500,000 that was paid into
the plaintiff's account, the plaintiff denied this. To support its
denial, it produced a Bank
statement showing that it had no such money in its account by the
28th
of
September
2000.
It
would have been a very short step for the plaintiff to show that it
subsequently earned that money, and more, after this date, by the
production of further statements. This it did not do.
On
the basis of the above, I reject the plaintiff's contention and
find that on a balance of probabilities, the trailers were purchased
partly by proceeds from the illegal exchange of foreign currency and
partly by finance provided by Stannic Finance.
The
remaining issue for me to deal with is the registration of the trucks
and trailers.
It
is common cause that the trucks and trailers are registered as to six
vehicles in the name of John Chidyiwa and the remaining six in the
name of the defendant. The evidence of Shadreck Gowe confirms this.
Some
time in April 2002, the plaintiff obtained certain extracts from CVR
seeming to indicate that the vehicles were registered in the name of
the plaintiff. This incomplete information, on the part of the CVR,
resulted in the plaintiff amending its declaration to allege the fact
that it was the registered owner of the vehicles.
Despite
knowing the true facts, as testified to by its Managing Director, the
plaintiff was willing to literally pull the wool over the court's
eyes and allege that the vehicles were registered in its name. I find
this to be downright dishonesty on the part of the plaintiff. This,
in turn, has led me to lack confidence in the testimony of the
plaintiff.
In
an effort to explain why the vehicles were registered in the names of
its directors, the plaintiff sought to produce a document purportedly
entered into by and between the directors, agreeing that the vehicles
were the property of the plaintiff notwithstanding the registration.
The
defendant denied signing such an agreement and alleged that the
plaintiff had created the document for the purposes of the trial.
It
is my finding that the document is not authentic. It was not
concluded on the date allegedly appearing on its face. One of the
signatories to the document has denied signing the document and the
other was not called to give evidence authenticating the document.
Further, I find the circumstances in which the document is alleged to
have been made unconvincing. It is on the basis of these
unsatisfactory features of the documentary evidence that I reject it.
I
find, on a balance of probabilities, that the vehicles were not
registered in the plaintiff's name as they were never the
properties of the plaintiff.
In
my view, it is not necessary that I make a finding relating to the
negotiations between the parties to settle the dispute between them
before the matter came before me. Such negotiations have no bearing
to the real dispute between the parties that I have tried to define.
Before
I come to my disposition of this matter, there is one other issue
that I wish to comment on.
When
this matter came before BARTLETT
J, as an urgent application, he had occasion to remark on what he
perceived to be the questionable nature of the plaintiff's
activities regarding the export of katambura
grass and the handling of the proceeds therefrom. He directed the
parties to address this issue further by filing supplementary
affidavits in the now converted court application.
I
have been similarly disturbed by what I observed to be the manner in
which the plaintiff and its directors conducted themselves especially
in relation to their handling of foreign currency earned as a result
of their export of katambura
grass to Dubai.
It
emerged during the evidence of both parties that when exporting
katambura
grass to Dubai, the plaintiff would understate the value of the
export on the CD1 forms that it submitted to its Bank. The balance
between the amount on the CD1 forms and the amount actually paid by
the overseas customer would be collected by the plaintiff as cash and
would not be declared to the Bank. In this regard, the plaintiff and
its directors were denying the country foreign currency and were
flouting the laws of the country designed to ensure inflows of
foreign currency into the banking system. It is on the basis of such
clear illegality that the plaintiff wanted the court to make a
finding in its favour and hold that it had illegally obtained money
in Dubai that it used in purchasing some of the vehicles.
I
however found otherwise.
Further,
evidence from the defendant, on which he was not seriously
challenged, was that one Patel, a business colleague of the
plaintiff's, would use the plaintiff to steal from a sister company
for which he held a franchise. This explains how the alleged loan to
Patel arose. This was money he had creamed off his sister company in
South Africa. I believed the evidence of he defendant in this regard.
I further believed his evidence that the alleged loan from Steve
Gibson was a foreign currency deal that went sour. In this regard, my
concern is that the plaintiff and its directors were clearly involved
in illegal activity in earning part of their money.
The
issue that has exercised my mind is as to whether or not I should
turn a blind eye to the parties' way of conducting business during
the period in question especially where it touches on how the funds
were allegedly raised to pay for the trucks and trailers. It appears
to me that both parties have dared to come to court with very grubby
hands and to had to literally wash their dirty linen in court. I am
inclined to express my disfavour by not making any award of costs.
Had the matter not been previously reported to the authorities (with
no ensuing prosecution) I would have done so.
I
would make the following order:
1.
The plaintiff's claim is hereby dismissed.
2.
The provisional order granted in favour of the plaintiff on 9
November 2001 is hereby discharged.
