MTSHIYA J: On 10 February 2010 the plaintiff issued
summons against the defendant claiming:
"a) Delivery
to it by the defendant of 1600000 litres of diesel or alternatively payment by
the defendant of a sum of money in United States Dollars sufficient to purchase
1600000 litres of diesel in Zimbabwe; and
b) Cost of suit."
The record shows
that on 29 March 2010 the plaintiff obtained a default judgment in terms of the
above claim. The default order was, however, rescinded on 2 June 2010.
The defendant
also has a claim in reconvention. He claims:
a) Payment
of the sum of US$159 000-00
b) Return
of trailer and fuel tank or payment of its value of US$15 000-00
c) Return
of 50 000 litre fuel tanks or their value of US$40 000-00
d) Surrender
and return all documents of title and share certificate pertaining to the
entire shareholding in Carmelo Investments (Pvt) Limited and 50% shareholding
in Auxiliary Services (Pvt) Limited
e) The
rendering of an account of 50% of dividend and profits paid to the plaintiff by
Auxiliary Services (Pvt) Limited from the business known as Title It and the
payment of same.
f) The
return of documents of title pertaining to Flat No. 9 Monte Serino,
Johannesburg, Republic of South Africa
g) The
return of agreements of sale between the Savanna Trust and Lindsay and Dave
Capsopoulos pertaining to the acquisition of shareholding in Capsopoulos
Enterprises (Pvt) Limited and the purchase of household goods situate at House
No. 28 Blair Road, Ballantyne Park, Harare.
h) The
return of documents of title pertaining to immovable property known as No. 28
Blair Road, Ballantyne Park, Harare; and
i)
Costs of suit."
The facts of the
case, not wholly accepted by the defendant, are briefly that in October 2008,
in Harare, the defendant borrowed 1600 000 litres of diesel from the plaintiff
with a promise of delivering back the litres of diesel within six months. The
plaintiff also states that as security for the loan of diesel the defendant
offered his property known as No. 28 Blair Road, Ballantyne Park, Harare, (No.
28 Blair Road) ; shares in his company known as Auxilliary Services (Pvt) Ltd
(Auxiliary Services Shares) and title deeds for his flat in South Africa known
as No. 9 Monte Serino, Johannesburg. On the basis of the security provided, the
plaintiff duly delivered the borrowed 1600 000 litres of diesel to the
defendant. The defendant has, however, to this date failed to deliver back the
said litres of diesel and hence this action.
The plaintiff
led evidence from two witnesses namely Nigel Joseph Earle (Earle) and Lindsay
Earle (Lindsay).
The first
witness, Earle, told the court that at the time of the diesel loan he was one
of the two directors of the plaintiff. He left the plaintiff in January 2011.
Earle said he knew the defendant as a friend with whom he had done business. He
said the defendant had approached him and asked for a loan of 16 00 000 litres
of diesel in order to deal with a problem that had arisen in his (defendant's)
diesel supply arrangements. He had then discussed the defendant's request with
his co-director, a Mr Tafadzwa Chigumbu (Chigumbu), and it was then agreed to
lend the defendant the 1600000 litres of diesel for a period of six weeks. The
defendant, he said, had offered as security for the loan "number 28 Blair Road",
plus some other assets which were various properties in South Africa and a 50%
share in a business in Harare trading as Tile It". Earle said Tile It was owned
by a company called Carmelo Investments in which the defendant had 50% shares.
The other shares in the company, HE SAID, were owned by one Tapiwa Chanakira
(Chanakira). It was his evidence that, contrary to the contents of the letter
at p 1 of exh 1, the Tile It business was never transferred to him. He said
Chanakira was not forthcoming on the transaction because he had financial
issues to settle with the defendant and hence the failure to have the business
transferred to him.
Earle said upon
a verbal agreement the 1600000 litres of diesel were duly supplied to the
defendant's nominated customer. He said the defendant did not, however, settle
the debt as verbally agreed.
Earle said the
failure by the defendant to honour his obligation, led to settlement
discussions which hinged on the securities provided. He said the settlement
discussions revealed that the defendant faced a variety of claims amounting to
US$2 million from other organisations with whom he had done business. He said
meetings with other creditors resulted in the plaintiff clearing some of the defendant's
debts. Earle said this had been done so that in the end the defendant would
then allow the plaintiff to dispose of number 28 Blair Road. He said the
proceeds from the sale of the house would have been adequate to clear the
plaintiff's claim. That arrangement, according to Earle, rendered the issue of
other securities irrelevant. He said it was this arrangement that later led to
the signing of the document at p 3 of exh 1 by both himself and the defendant, (generally,
referred to in the papers filed as "Acknowledgment of Debt)". He said he and
the defendant had put their signatures to the said document which read as
follows:
"TO
WHOM IT MAY CONCERN
This
serves to confirm that Redan Petroleum (Pvt) Ltd is owed an amount of
1, 600,000 Lts of Diesel (in tank Harare
inclusive of costs, duties, levies, transport, storage and handling etc) by
Ashley Muzvidzwa in respect of product loaned in 2008.
In
addition, Redan Petroleum (Pvt) Ltd is owed the sum of US 600, 000-00 in
respect of additional product advanced in 2008. This amount is payable into
Redan/NOCZIM FCA SUB ACCOUNT IN US$ at Stanbic bank.
On
settlement of this debt in full, Redan Petroleum will release the securities
held in terms of this debt to include - 28 Blair Road, Shares in Auxilliary
Services (Pvt) Ltd, and the title deeds to 9, Monte Serino.
Redan
Petroleum (Pvt) Ltd reserves the right to dispose of the securities held at any
time without reference to Ashley Muzvidzwa in order to recover its debt."
Earle said the
defendant had said he wanted the above document for the purposes of raising
funds to clear the plaintiff's claim.
Earle said
despite assurances from the defendant's lawyers that he would honour his
obligations, nothing was ever paid or delivered to the plaintiff as evidenced
by letters from the defendant's lawyers at pp 5 - 7 of exh 1.
Earle went on to say that, apart from this
case, there was another case in this court where the plaintiff was suing the
defendant for cash. He said all the plaintiff wanted in casu was to be granted ownership of No. 28 Blair Road so that they
could sell same to settle the plaintiff's claim.
Lindsay was
called in as the second and last witness of the plaintiff. She said she worked
as personal assistant to Chigumbu, (one of the plaintiff's directors). Her
responsibilities covered human resources, debt collection, and accompanying the
director to meetings. She knew the defendant as her father's friend, namely
Earle. She said Chigumbu and her father had asked her to engage the defendant
in discussions over the outstanding diesel loan. To that end, she had met the
defendant on several occasions to settle the matter. She confirmed that the
defendant had offered certain assets as security and had at one stage agreed
that No. 28 Blair Road should be sold at the highest value in order to meet the
Redan claim. The defendant, she said had later refused to dispose of No. 28
Blair Road, arguing that it was a family home.
Lindsay said the reconciliation at p 18 of exh
1 was prepared by the defendant.
The said
reconciliation reads as follows:
"RECONCILIATION
OF AMOUNT OWING TO REDAN BY ASHLEY MUZVIDZWA
Diesel
ex noczim 1 100 000 0.6 660,000.00
Diesel
ex bp 500 000 0.7
350,000.00
Cash
due 413,000.00
___________
Amount
due to Redan before sale of assets 1,423,000.00
Less:
Monte Sereno flat
(100,000.00)
: Tile it shares
(420,000.00)
___________
Amount due after sale of assets 903,000.00
___________
NOTE: Blair road house to remain as
security against the remaining debt due to Redan
Blair
road house title deeds to be used to get mortgage to settle remainder of debt
due to Redan.
Lindsay
to sign off assets given."
Lindsay went
further to testify that the defendant had not surrendered to the plaintiff any
of the securities offered and the plaintiff's claim remained unsettled.
After Lyndsay's
evidence, the plaintiff formally closed its case and the defendant then gave
evidence.
The defendant
said he was a truck and fuel dealer. He said as from 2010 his company, Haul It,
has been buying fuel from Mozambique for resale in Zimbabwe. Prior to that
(i.e. from 2004) he was a shareholder in a company called Megabeck Investments
where he owned 50% shares and also had 100% ownership of a company called
Coppleridge Oils.
The defendant
said he did not personally borrow 1.6 million litres of diesel from the
plaintiff. He said he used to supply Cotton Company of Zimbabwe Limited
(COTTCO) with fuel and that in 2007 COTTCO required 3.4 million litres of
diesel. He said supplies to COTTCO were done through Megadeck (Private) Limited
(Megadeck). He said Megadeck had two
sources of supply namely BP (Beira) and Xaton (Mauritius)). He said, after
delivery, Megadeck would be paid cash in Zimbabwe dollars.
The defendant
said that when he received the order for 3.4 million litres of diesel, he
approached Earle and one Tom Sopper ("Sopper") of the plaintiff with a view to
having them join him in the supply arrangements. He said at that stage of the
transaction Lindsay was not involved (the fact also confirmed by Lindsay in her
evidence). He said Sopper was the plaintiff's Finance Director who also, on a
part time basis, controlled the Xaton account in Zimbabwe.
The defendant
said Megadeck and Cottco had entered into a written supply agreement for the
3.4 million litres of diesel as indicated at pp 12 - 16 of exh 2 (i.e the
supply agreement). He said he used to supply big fuel orders jointly with the
plaintiff and hence his approach to Earle and Tom Sopper (Sopper) in July 2007
for supplies to cover the 2008 cotton season.
It was the
defendant's evidence that the plaintiff had indicated that of the 3.4 million
litres of diesel, in the supply contract, it could only supply 1.6 million
litres. The balance, he said, would be supplied the defendant's his company called
Coppleridge Oils. The defendant said in agreeing to supply the 1.6 million
litres of diesel, Messrs Earle and Sopper were fully aware that they were
dealing with Megadeck and not with him in his personal capacity. The witness
went further to state that Sopper, with the help of a lawyer called Florence,
was involved in the drafting of the agreement signed in September 2007.
The defendant
said the arrangement was that upon being paid by Cottco in Zimbabwe dollars the
plaintiff would then change the money into foreign currency for onward
transmission to Xaton, the foreign supplier of fuel. He referred to pp 25 - 26
of exh 2 where money transactions were signed for. He also referred to Xaton
invoices at pp 7 - 11 of exh 2. The defendant said due to fast and
unpredictable changes in the rate of exchange, the plaintiff was not able to
buy foreign currency as per arrangement from the parallel market for transfer
to Xaton. He said an attempt to pay the plaintiff in Zimbabwe dollars had
failed because the plaintiff refused to accept payment in Zimbabwe dollars,
preferring payment in foreign currency. That had led to a three months
arrangement where the defendant surrendered his customers to the plaintiff. That
arrangement, however, collapsed because the plaintiff was not crediting the
defendant with any profits from the deal. The witness said the supply agreement
was a joint venture transaction between the plaintiff and the defendant (i.e.
joint venture to supply Cottco with diesel).
The witness said
No. 28 Blair Road was owned by a family Trust (Capsopolus Enterprises) and that
the title deeds of the property had been taken by the plaintiff from his
Accountants as security for the money owed by Megadeck. He said no mortgage
bond had, however, been registered against the property.
The defendant
agreed that the exhibit ("acknowledgement of debt") at p 3 of exh 1 was signed
by himself and Earle. He said the document was intended for one Rezanna Brahim (Rezanna)
who owned a company called Ravens Court. He said Rezanna wanted to help him in
stopping a threatened sale of No. 28 Blair Road by Lindsay who was acting on
behalf of the plaintiff. He said Rezanna was willing to assist with finances
which would extinguish the Megadeck debt. He maintained that the loan of 1.6
million litres of diesel was never extended to him in his personal capacity.
The defendant's case
was closed after his testimony..
The agreed
issues agreed for determination in casu
on 10 December 2010 are listed as follows:
"1. Whether
the defendant borrowed 1 600 000 litres of diesel from the plaintiff or whether
the plaintiff entered into an agreement with Megadeck (Private) Limited.
2. Whether the agreement was tainted with
illegality.
3. Whether
the debt was secured by immovable property known as No. 28 Blair Road, Ballantyne
Park, Harare and shares in Auxilliary (Private) Limited and title deeds in
respect of immovable property situated in Johannesburg, South Africa known as
No 9 Monte Serino.
4. Whether
the defendant freely and voluntarily signed an acknowledgement of debt in
respect of the 1 600 000 litres of diesel.
5. Whether
the plaintiff should refund to the defendant all payments made to the
plaintiff.
6. Whether the defendant has a valid
counter-claim against the plaintiff."
In his
submissions Mr Mamvura, for the
plaintiff, argued that there were only two issues for determination in casu, namely:
"1. Whether the defendant borrowed 1 600 000 litres
of diesel from the plaintiff; and
2. Whether
the debt was secured by immovable property known as No. 28 Blair Road,
Ballantyne Park, Harare and shares in Auxilliary (Private) Limited trading as
Tile it and title deeds in respect of immovable property situated in Johannesburg,
South Africa known as No. 9 Monthe Serino."
In support of
his submissions, Mr Mamvura relied
largely on two major documents. The first document is the undated document quoted
in full at p 3 of this judgment, which document the plaintiff has referred to
as "an acknowledgement of debt."
The second
document is a reconciliation prepared by the defendant's accountant on the
defendant's instructions. The document is quoted in full at p 4 of this
judgment.
Mr Mamvura submitted that in his plea and
summary of evidence and claim in reconvention, the defendant referred to the
first document as "an acknowledgement of debt." He said there was no evidence
to support the allegation by the defendant that the said document was signed
under duress. The document in question, he said, confirmed the loan to the
defendant of 1.6 million litres of diesel and the security offered for the
loan, namely No. 28 Blair Road, Auxiliary Services shares and title deeds to No.
9 Monte Serino.
Mr Mamvura said the acknowledgment of debt
made no mention of Megadeck. The document, he argued, specified the defendant
as the debtor. He further noted that the parties to the supply agreement relied
upon by the defendant were Cottco and Megadeck. There was no reference in the
agreement to joint obligations (i.e. the plaintiff and the defendant acting
jointly) and, furthermore, the personal security given by the defendant under
that agreement was in favour of Xaton. He argued that the Megadeck debt had
nothing to do with the plaintiff and as such all the documents relied on in exh
2 were irrelevant to the plaintiff's claim.
Mr Mamvura
pointed out that the supply agreement was signed on 7 September 2007 and yet
the loan was granted in October 2008. He said, even the defendants' lawyers
were fully aware that the plaintiff had no joint arrangement with Megadeck for
the supply of diesel to Cottco and hence the defendant's willingness to
personally and individually settle the debt.
Mr Mamvura also noted that, in his evidence
under oath, the defendant told the court that he does not own No. 28 Blair Road
whereas correspondence from his lawyers indicated that the property was his.
On the issue of
the reconciliation (i.e. second document appearing at p 4 of this judgment), Mr Mamvura
submitted that the document confirmed the defendant as the debtor. The
reconciliation made no reference to Megadeck. The reconciliation also gave a
breakdown of the figures and thus revealing that the 1.6 million litres of
diesel were delivered to Cottco by the plaintiff as follows:
"a) 1000 000 litres from NOCZIM
b) 500
000 litres from BP"
The above information, he said,
confirmed Earle's evidence. He said the cash amount appearing in the
reconciliation was subject of a pending case (i.e. HC 2344/10) in which the
defendant was being sued.
Mr Mamvura, said all the securities under
the loan (i.e. diesel loan of 1.6 million litres to the defendant) were never
realised despite the fact that delivery of diesel was made to Cottco as
directed by the defendant.
In the main, Mr Mamvura submitted that both Earle and
Lindsay were credible witnesses whose evidence was not challenged. However, Mr Mamvura went on, the defendant's
evidence could not be relied on because he was not honest regarding the
acknowledgment of debt, the supply contract and the reconciliation which was
prepared by his accountant under his instruction. He said the defendant could also
not satisfactorily explain why he did not call Sopper in order to bring out the
truth about the supply contract.
Notwithstanding
the plaintiff's claim and prayer in the summons, at pp 1 and 2 of his reply,
filed on 20 October 2010, Mr Mamvura
submits as follows:
"1. In Trotman
and Anor v Edwick 1951 (1) SA 443 VAN DEN HEEVER, J.A. said at p 449 B
'A Litigant who sues on contact sues
to have his bargain or its equivalent in money and kind. The Litigant who sues
on delict sues to recover the loss which he has sustained because of the
wrongful conduct of another, in other words that the amount by which his
patrimony has been diminished by such conduct should be restored to him; and
2. In Sommer
v Widong 1984 (3) SA 647 (A) it was
held that in a claim for damages arising from a breach of contract the
plaintiff should be placed in the same position as if the contract had been
properly performed.
3. By the same token the plaintiff
approaches this honourable court seeking to have his bargain or its equivalent
in money and kind. Should this be granted it is respectfully submitted that a
period of 14 days from the date of the order of the court is a reasonable
period within which the defendant should be ordered to deliver to the
plaintiff, the 1 600 000 litres of diesel, failing which immovable property
known as No. 28 Blair Road Ballantyne Park, Harare in terms of which the loan
was securitized be declared executable in settlement of the debt in
accordance with the terms of the loan and security arrangements concluded by
the parties." (My own underlining)
Mr Mamvura submitted that the plaintiff had
made out its case and was entitled to the relief it was seeking. Furthermore,
he submitted, the defendant had failed to offer a defence to the claim and had
also failed to lead evidence to prove his counterclaim. He said there was
nothing to support the counterclaim.
Advocate Zhou, for the defendant, submitted that,
contrary to the plaintiff's claim, there were six issues for determination and
not two. He therefore urged the court to find in favour of the defendant in
respect of the other four issues not referred to by the plaintiff.
Advocate Zhou
said it was fatal on the part of the plaintiff not to call Sopper who handled
all the documentation. He said it was the plaintiff's obligation to call Sopper
who was its employee. The failure to call Sopper had resulted in the court
being asked to rely on improbable evidence regarding the Megadeck transaction. He said it was improbable that a company like
the plaintiff would loan such a large quantity of diesel to an individual like
the defendant on a verbal basis.
Advocate Zhou submitted that the plaintiff's
submissions indicated that the cause of action was based on two doubtful documents,
namely the document said to be an acknowledgement of debt and a reconciliation
statement. He noted that, in the main, the plaintiff's particulars of claim read,
in part as follows:
"Sometime
in October, 2008 in Harare the defendant borrowed from the plaintiff 1 6 00 000
litres in tank, Harare. As security for the debt the defendant provided
property known as No. 28 Blair Road, Ballantyne Park, Harare, shares in
Auxiliary Services (Private) Limited and title deeds to 9, Monte Seriro."
He also noted
that the plaintiff in his summons and declaration made no claim to the security
offered and as such reference to same was superfluous. He argued that the onus
to prove the existence of a loan was on the plaintiff but the plaintiff had,
however, failed to discharge that onus.
Advocate Zhou said evidence indicated that the
parties were to jointly supply Cottco because Megadeck had failed to supply the
full quantity of diesel.
Advocate Zhou said there was no proof from the
plaintiff that the fuel was delivered in October 2008 instead of 2007 as
indicated by the defendant. Furthermore the acknowledgement of debt relied on
by the plaintiff was not dated and so was the affidavit at p4 of exh 1.
Advocate Zhou went further to submit that initially Earle had denied
knowledge of Megadeck and it was only under cross examination that he admitted
having dealt with the company. He said the plaintiff had not refuted the
evidence that Sopper had caused the defendant to sign a deed of suretyship for
Megadeck's obligations to it. He said in the absence of a registered mortgage
bond, no real security existed. The debt, he argued was not proved.
Advocate Zhou urged the court to either declare
the agreement illegal or that the debt is owed by Megadeck and not the
defendant. The court would then proceed to grant the defendant the relief he
seeks in his counter claim.
Having carefully
considered all the evidence in this matter and the submissions by both counsel,
I am persuaded to narrow the issues for determination to two as submitted by
the plaintiff. The plaintiff, in my
view, correctly submits that the issues for determination can be reduced to
two, namely:
"1. Whether the defendant borrowed 1 600 000
litres of diesel from the plaintiff.
2. Whether the debt was secured by immovable
property known as No. 28 Blair Road, Ballantyne Park, Harare and shares in
Auxilliary (Private Limited trading as Tile it and title deeds in respect of
immovable property situated in Johannesburg, South Africa known as No. 9 Monte
Serino.
I believe that a finding on the above
two issues will properly address the plaintiff's
claim and the defendant's counterclaim. I do not read the plaintiff's
submission to mean that the other four issues are admitted. Instead, what I make
of the plaintiff's submission is that the sum total of the evidence led in
court reveals only two issues for determination. That therefore means that, in
its view, which view I agree with, the other four issues are rendered
non-issues in terms of the evidence now before the court.
In
the main there was no evidence to show that:
1) it
was illegal to lend 1 600 000 litres of diesel to the defendant or that the
lending was for illegal purposes;
2) The
acknowledgement of debt was not signed voluntarily;
3) The
defendant ever made any payments to the plaintiff; and
4) The
plaintiff benefitted from the securities offered.
Having
said the above, I shall now proceed to determine the two remaining issues.
1. Whether
or not the defendant borrowed 1 600 000 litres of diesel from the plaintiff
The
evidence before the Court indicates that the diesel was loaned in October 2008
on
the basis of a verbal agreement. Earle said the defendant was a trusted friend
who also dealt in fuels. That, it was said, was the basis upon which the loan
was granted under the security of No. 28 Blair Road, Auxiliary Services shares
and title deeds for flat No. 9 Monte Serino, Johannesburg.
The defendant, however, produced, under exh 2,
an agreement signed between Cottco and Megadeck on 7 September 2007. He said
the diesel was borrowed under that agreement and the plaintiff and him were
operating as joint suppliers. There was, however, no evidence to support joint
obligations under the supply agreement.
Although
initially Earle denied any knowledge of Megadeck, he later admitted that the
defendant had told him about that company. I did not put much value in the
witness' "change of mind". I formed the impression that the witness was clear
in his mind as regard the actual detail relating to the loan of 1.6 million
litres of diesel to the defendant. That was a direct transaction between the
plaintiff and the defendant. There was no third party involvement. The
defendant did not deny that his discussions with Lindsay were centred on the
1.6 million litres of diesel and during those discussions the defendant never
raised the issue of joint supply to Cottco. That, in my view, would have
been a legitimate defence in favour of the defendant. Added to his silence on
the plaintiff's alleged involvement with Megadeck, the defendant did not find
it necessary to call Sopper to the witness's stand. I believe exposing Sopper
to cross examination would have been necessary. The defendant alleged that
Sopper drafted the September 2007 agreement. It was therefore necessary for the
defendant to call Sopper as a witness. The fear of bias, on the part of Sopper,
would have been tested under cross examination. It was not proper to make
conclusions without having spoken to Sopper.
Further, the defendant
merely said any reference in his papers to the year 2008 would have been a
typographical error. That, unfortunately, was not convincing at all. There is
evidence that the supply contract was signed in 2007 but there is nothing
linking the plaintiff to the contract.
We have, in casu, apart from the supply contract,
other important documents which cannot just be thrown away. These as we have
already seen are:
1. the
document quoted in full at p 3 of this judgment signed by the defendant
acknowledging the loan to him of 1.6 million litres of diesel and the
securities he gave for the loan; and
2. the
reconciliation quoted in full at p 4 of
this judgment and prepared by the defendant's accountant on the defendant's
instructions. The reconciliation also confirms the loan and the remaining
security.
There
is, as matters stand, nothing in the evidence before me that can, in any way,
compel me to accept that:-
(a) the
acknowledgment of debt was not voluntarily signed; and
(b) the
reconciliation was a "making" of Lindsay without the defendant's in-put.
The
documents, in my view, reflect the true position regarding the diesel loan and
that true position is indeed confirmed by the defendant himself through his own
actions. He signed the acknowledgement of debt and directed the preparation of
the reconciliation.
The defendant
himself testified that he wanted to use the acknowledgment of debt for purposes
of obtaining funds from Rezanna and that the reconciliation was prepared by his
accountant under his instruction. That evidence supports the plaintiff's case.
The defendant is an educated and experienced
businessman who, I believe, knows his rights.
Accordingly,
taking into account all the evidence given in this case and the submissions
made, I find, on a balance of probabilities, that the plaintiff did indeed, in
October 2008, loan to the plaintiff a quantity of diesel amounting to 1.6
million litres and that to date the defendant has not given back to the
plaintiff the said quantity litres of diesel.
I
now move to determine the second issue, namely:
2. Whether
the debt was secured by immovable property known as No. 28 Blair Road,
Ballantyne Park, Harare and Shares in Auxiliary (Private) Limited trading as
Tile and title deeds in respect of immovable property situated in Johannesburg,
South Africa known as No. 9 Monte Serino
Apart from alleging that title deeds for
No. 28 Blair Road were not properly taken
away from the custody of his
Auditors/Accountants, the defendant, in his discussions with Lindsay does not
deny the entire basis upon which the 1.6 million litres of diesel were loaned
to him. The loan according to the plaintiff's evidence was granted on the basis
of friendship in business and the securities offered by the defendant. Earle
pointed out that once the arrangement to pay some of the defendant's debts was
put in place, the earlier arrangements regarding security for the loan fell
away except for holding onto No 28 Blair Road. That was not denied and the
reconciliation confirms that position. Furthermore, the discussion between the
defendant and Lindsay confirmed that position.
There
is nothing in the evidence adduced that suggests that the plaintiff ever
benefited from the securities offered by the defendant. There is also no
evidence of any cash payments that were made to the plaintiff by the defendant. That being the case, the
defendant's counter claim has no basis and falls away.
In view of the
foregoing, my finding is that the plaintiff's claim must succeed. The defendant
should not be allowed to resile from a clear contract. He ought to be prepared
to meet his obligations under the contract. In that vein I associate myself
with the Late ROBINSON J, who, in Intercontinental
Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1998 (1) ZLR (H) said:
"I
would wind up by saying that if the right of specific performance is to be
shown to have real meaning to businessmen, then the loud and clear message to
go out from the courts is: businessmen beware. If you fail to honour your
contracts, then don't start crying if, because of your failure, the other party
comes to court and obtains an order compelling you to perform what you
undertook to do under your contract. In other words, businessmen who wrongfully
break their contracts must not think they can count on the courts, when the
matter eventually comes before them, simply to make an award of damages in
money, the value of which has probably fallen drastically compared to its value
at the time of the breach. Businessmen at fault will therefore, in the absence
of good grounds showing why specific performance should not be decreed, find
themselves ordered to perform their side of the bargain, no matter how costly
that may turn out to be for them .".
I
note that in its submissions the plaintiff sought to have No 28 Blair
executable. That request is not in line with the plaintiff's claim in the
summons. That amendment cannot, in my view, be accepted at this stage. The
request cannot therefore be granted.
Accordingly, I now order as follows:
1. The
defendant's claim in reconvention be and is hereby dismissed.
2. The
defendant be and is hereby ordered to deliver 1 600 000 litres of diesel to the
plaintiff or alternatively pay the plaintiff a sum of money in United States
Dollars sufficient to purchase the said 1 600 000 litres of diesel in Zimbabwe,
and
3. The
defendant be and is hereby ordered to pay costs of suit.
Scanlen
& Holderness, plaintiff's legal practitioners
Manase & Manase defendant's legal
practitioners
