KAMOCHA J : The respondent who was the plaintiff in the court a quo
issued summons claiming the following :
"(a) an order that
defendant fulfils his part of the contract by handing 4 heifers to the
plaintiff;
Alternatively,
that defendant pays to plaintiff the sum of $16 000 000,00 being the
current market value of four (4) 2-3 year old heifers;
(b)
An order that in the event that
defendant opts to pay money, then he be ordered to pay interest a tempore
morae calculated from the date of issue of summons to date of payment; and
(c)
An order that defendant pays
costs of suit in this matter."
The
matter went to trial before a provincial magistrate in Gwanda, who in a
judgment delivered on 4 September 2006, ordered that the defendant handover 4
herd of cattle to the plaintiff within 14 days of the judgment. In the alternative, defendant was ordered to
pay plaintiff an amount of money equivalent to the current market value of the
4 cattle. The valuation was to be done
by a mutually accepted third party. The
defendant was to bear the costs of suit.
Aggrieved
by the court a quo's ruling the defendant lodged this appeal on the
following grounds:-
"(1) It is contended that
the learned trial magistrate erred in making a finding that the appellant
should handover the four cattle to the respondent when in fact it is the
respondent who breached the contract.
(2)
It is contended that the
cancellation of the contract by the appellant was lawful and the trial
magistrate erred in not giving effect to the cancellation.
(3)
It is contended that the trial
magistrate erred in failing to address the issue of the $2 400 000,00 (old
currency) refunded by the appellant to the respondent.
(4) It is contended that
the judgment of the trial magistrate is fundamentally flawed as it seeks to
give the respondent both the four herd of cattle and the purchase price
amounting to $2 400 00,00 (old currency); and
(5) The trial magistrate failed to give
reasons for his judgment."
The last ground of appeal can be
disposed of quickly as it is clearly devoid of any merit. The learned provincial magistrate gave his
detailed reasons for judgment on receipt of the appellant's notice of
appeal. What the appellant should have
done when an appeal was being contemplated was to request for the trial court's
detailed written reasons for judgment. He
did not do that. His complaint is
therefore unjustified.
Similarly the third and fourth
grounds of appeal are unjustified. This
is so, firstly because when the parties drew up a joint pre-trial memorandum
the appellant never raised the question of the refund of the $2 400 000,00 as
an issue and he now raises it for the first time as a ground of appeal.
The respondent's evidence on that
point was that when the appellant decided to purportedly cancel the agreement
he took the $2 400 000,00 to the respondent's home and left it with the
respondent's teenage son to pass it over to his father. When the son was trying to hand it over to
the respondent, he (respondent) refused to accept it and immediately telephoned
the appellant. The two had a long
discussion about the matter over the phone.
He finally told the appellant that he was not accepting the money from
his son and told the appellant to go and collect it from him. He reiterated and emphasized that the money
was where appellant had left it. Respondent
said he never even touched it because as far as he was concerned the agreement
was still existant. It was his evidence
that the appellant knew very well where to collect his money.
In the light of the above evidence
it is preposterous to suggest that the court a quo gave respondent both
the 4 herd of cattle and the purchase price when appellant was told to go and
collect his money but did not want to do so because he was bent on wanting to
cancel the agreement. Be that as it may, the respondent still tendered the
money at the hearing of the appeal.
I now turn to deal with the first
two grounds of appeal. It is common
ground that the respondent purchased four herd of cattle from the appellant.
Each beast was being sold for $600 000,00 making a total of $2 400 000,00 for
the four animals. The total purchase
price was paid in full. However, the
respondent did not immediately collect the beasts as he preferred to do so in
the presence of the appellant as the cattle were being kept at a farm belonging
to the appellant's brother. It is common
ground that the beasts were bought during the month of January 2004 and the
respondent selected four animals.
The parties' versions differ on the ages, sizes and colour
of the animals. The respondent's case
was that he had selected four brown heifers which the appellant had allegedly
said were 12 months old. While the
appellant alleged that no selection of beasts was ever done. He said the respondent bought calves which
were 6 months old. He was, however,
silent on the colours of the alleged calves.
The appellant's story changed as the trial progressed as he then began
to allege that he had sold young animals which had just been weaned off. He said they were weaners.
The parties dwelt at some length on
the issue of whether the beasts were weaners or heifers. The respondent and his witness Mr Andrew
Ndlovu were categoric on the animals they bought from the appellant. They said in all their dealings with the
appellant the Sindebele word used as "ithokazi or amathokazi" meaning heifer or
heifers. They did not use any English
words like "weaner or heifer".
I pause to observe that if the
parties had been talking about a weaner or weaners they would have said "iguqa
or amaguqa". The appellant appeared to
be confused about the beasts he sold. He
started off saying he had sold calves and then changed to weaners. On the other hand the respondent and his
witness were clear on what they bought from the appellant. The court a quo preferred their story
to that of the appellant. In my view,
the trial court's finding is unassailable and this court finds that the
respondent bought four heifers. The
heifers had been mounted at the time of the trial.
By December 2004 the appellant had
moved the cattle to his own farm in West Nicholson. During the first week of December the
parties made arrangements for respondent
to collect his four cattle.
On arrival at the farm the appellant
attempted to hand over to respondent four cattle that were different from the
ones he had chosen. The four were
smaller (younger) than the ones he had chosen and included a black one yet the
beasts he had chosen had no such black beast.
Respondent said he told the
appellant that whilst he accepted the four cattle selected by appellant, he was
not happy that those were different beasts.
Nevertheless, he asked the appellant
to give him time to arrange that his herdboys come and drive the cattle
away. Appellant was in agreement with
that and told his herdboys to expect respondent anytime to come and collect the
beasts. This is, in fact, common cause.
Apart from expressing his
disappointment about the new lot of beasts the appellant had selected for him
the respondent did nothing to suggest that he had breached the agreement. As can be seen immediately above the parties
still arranged that the respondent's herdboys would collect the cattle even if
the appellant was not present. The
appellant instructed his manager to expect the respondent's herdboys.
When the appellant purported to
cancel the agreement the respondent refused to accept the purported
cancellation. The appellant tried to
return the purchase price but the respondent refused to accept it and held him
to the agreement. It is therefore not
true to suggest that the respondent breached the contract. In fact it was appellant who should be
accused of breaching the agreement by offering respondent different cattle from
the ones he had selected in terms of the agreement. He, however, attempted to shift the blame
onto the respondent until he was reminded in cross-examination that it was his
plea that he himself had in fact purported to cancel the agreement. Because the appellant was confused on this
issue as well the court a quo was entirely correct in holding that it
was him who in fact attempted to cancel the agreement. Similarly, the learned magistrate was equally
correct in finding that the purported unilaterally cancellation was unlawful
and of no force or effect.
In the result this court holds that
this appeal is without merit and is hereby dismissed with costs.
Ndou J ............. I
agree
Sansole and Senda, appellant's legal practitioners
Mabhikwa, Hikwa and Nyathi respondent's legal practitioners
