ZHOU
J:
The
plaintiff instituted the summons in
casu claiming
the following relief against the defendant:
“1.
An order compelling the defendant to transfer 167,275 Old Mutual
Public Limited Company shares to the plaintiff within ten (10) days
of the date of the order being shares which the plaintiff transferred
to the defendant in pursuance an asset swap agreement which agreement
was cancelled due to the defendant's breach.
2.
Alternatively and in the event that the defendant no longer has
possession of the 167, 275 Old Mutual Public Limited Company shares,
an order for payment of damages equivalent to the market value of
167,275 Old Mutual Public Limited Company shares at the date of
judgment.
3.
Costs of suit.”
The
claim is contested by the defendant.
The
plaintiff's case as pleaded is as follows;
In
2008 he entered into a verbal agreement in terms of which the
defendant agreed to deliver to him an immovable property at 4 Wroxham
Road, The Grange, Harare. In consideration of that the plaintiff
would transfer to the defendant 167,275 Old Mutual Public Limited
Company shares and 110,000 shares in a company known as PPC. Transfer
of title in the property would be registered in favour of the
plaintiff upon delivery of the Old Mutual shares. The PPC shares
would be transferred to the defendant after the transfer of the
property to the plaintiff.
Pursuant
to the agreement the plaintiff delivered the 167,275 shares to the
defendant.
The
defendant, however, breached the agreement by failing to transfer the
immovable property into the name of the plaintiff. Consequently, the
plaintiff cancelled the agreement and demanded the return of his Old
Mutual shares which demand the defendant failed to comply with hence
the instant proceedings.
The
defendant denies the alleged agreement and states that he only
received the 167,275 shares from the plaintiff in his capacity as
agent for a company known as Zimcor Limited in which he was neither
director nor shareholder. The share certificates were in the name of
Zimcor Limited. Four issues were referred to trial. These are;
(1)
Whether or not the defendant entered into an Asset
Swap
Agreement
with the plaintiff;
(2)
Whether or not the defendant was acting in his personal capacity;
(3)
Whether or not, as a result of the said agreement, the defendant had
167,275 Old Mutual shares transferred to him by the plaintiff; and
(4)
If so, whether or not the defendant is liable to transfer the
aforementioned shares to the plaintiff or, upon failure to do so, the
value of the shares.
The
plaintiff gave evidence in support of his claim. In addition to
stating the facts as stated in his declaration, the plaintiff stated
that he was introduced to the defendant by one Brian Machengo, an
estate agent who was acting as the defendant's agent. The agreement
the terms of which are detailed in the plaintiff's declaration was
then concluded. The defendant advised the plaintiff that he had
purchased the immovable property which he would deliver to the
plaintiff from the Sheriff of the High Court at an auction. The
defendant instructed the plaintiff to transfer the shares into the
name of Zimcor Limited a company which the plaintiff was made to
understand belonged to the defendant.
Having
transferred the shares into the defendant's nominee through his
brokers, New Africa Securities, the plaintiff presented proof of such
transfer to the defendant who duly signed to acknowledge receipt
while Brian Machengo signed as a witness.
Thereafter
attempts were made by the defendant acting through Brian Machengo to
obtain vacant possession of the immovable property which the
defendant had agreed to deliver to the plaintiff. Those efforts
yielded nothing.
The
defendant gave evidence himself. He stated that he did not know the
plaintiff but then said that he had met him two or three times before
in 2008. He categorically denied entering into an agreement in terms
of which he agreed to swap the immovable property referred to above
for shares as alleged by the plaintiff.
His
evidence was that at some point an estate agent advised him that a
potential client wanted to buy the immovable property in question but
the property could not be sold as it was the subject of a dispute and
was not available for disposal.
He
denied ever receiving the Old Mutual shares from the plaintiff or
directing the plaintiff to transfer the shares to Zimcor Limited. His
evidence was that he only received the documents pertaining to the
shares on behalf of the “owners” of Zimcor Limited who had moved
to South Africa at that time.
The
standard of proof required in this case, being a civil matter,
entails a comparative rather than a quantitative test. The onus in
this case is on the plaintiff to prove his case on a balance of
probabilities. The degree of proof is expressed in the following
statement of lord
denning
in the case of Miller
v
Minister
of Pension [1947]
2 All ER 372 at 374:
“It
must carry a reasonable degree of probability but not so high as is
required in a criminal case. If the evidence is such that the
tribunal can say 'we think it more probable than not', the burden
is discharged, but if the probabilities are equal it is not.”
This
test has stood the test of time, and has been consistently applied;
see Ocean
Accident and Guarantee Corporation Ltd v
Koch 1963
(4) SA 147 (A) at 157D; Zimbabwe
Electricity Supply Authority v
Dera 1998
(1) ZLR 500 (S) at 503E-504D.
This
is a case in which the versions of the plaintiff and the defendant
are mutually destructive. The approach of the court in the face of
such a scenario is as stated by sandura
JA
in Matiza
v
Pswarayi
1999
(1) ZLR 140 (S) at 143A-C:
“Commenting
on mutually destructive stories, wessels
JA (as he then was) had this to say in National
Employers Mutual General Insurance Asociation v
Gany 1931
AD 187 at 199:
'Where
there are two stories mutually destructive, before the onus
is
discharged, the court must be satisfied upon adequate grounds that
the story of the litigant upon whom the onus
rests
is true and the other false. It is not enough to say that the story
told by Clark is not satisfactory in every respect. It must be clear
to the court of first instance that the version of the litigant upon
which the onus
rests
is the true version, and that in this case absolute reliance can be
placed upon the story as told by A Gany . . .'
I
entirely agree with the learned JUDGE OF APPEAL.”
The
plaintiff's evidence is simple and supports the averments in his
declaration. He tendered proof of transfer of the Old Mutual shares.
He also explained why the shares were transferred into the name of
Zimcor Limited rather than in the defendant's name. The company was
the defendant's nominee for the purpose of receiving the payment.
The plaintiff owed no obligation to that company which would have
underpinned transfer of shares into its name.
The
link between the transfer of shares and the existence of an immovable
property which the defendant had purchased from the Sheriff's
auction is established by evidence.
There
is no way that the plaintiff would have known that the defendant had
purchased that property from an auction.
The
plaintiff also testified on the efforts which were made to recover
the immovable property from the judgment debtor who was the owner of
the property.
The
documents on record show the involvement of a firm of attorneys,
Ziumbe & Mtambanengwe, in the efforts to get the property from
the judgment debtor. From the documentary evidence adduced by the
plaintiff, the defendant gave written authority to Brian Machengo to
recover possession of the property from the owner of it.
The
plaintiff was not only a credible witness; his evidence accords with
the probabilities.
The
defendant presented himself as an evasive and in some instances
deliberately mendacious witness. When he was asked if he knew the
plaintiff his initial response was: “I don't know him.” A
moment later he said that he had met the plaintiff two or three times
way back in 2008. When he was asked if he had entered into the
agreement in terms of which the plaintiff would transfer shares to
him in return for the immovable property his response was:
“Absolutely no.” When his attention was drawn to his affidavit
in Case Number HC14089/12 in which he stated that in 2008 he extended
an offer to the plaintiff to purchase the property, the defendant
sought to disown the contents of the affidavit.
In
his evidence in this court he denied ever attempting to sell the
property to the plaintiff. He denied that he was at some point
represented by a Mr Ndoro of Ziumbe & Mtambanengwe even in the
face of an affidavit in Case No. HC2560/09 in which he was
represented by that attorney, and he states so in the affidavit.
The
defendant's statement that he received the proof of share transfers
as agent of Zimcor Limited cannot be accepted.
He
conveniently endorsed on one of the documents that he was receiving
on behalf of Zimcor Limited so that he would point to that
endorsement as a ground to wriggle out of his contractual
obligations.
Defendant
did not call any witness from that company to support his story.
He
inadvertently admitted that he is in the habit of not registering
assets in his own name which would explain why he directed the
plaintiff to transfer the shares into the name
of Zimcor Limited.
The
defendant made inconsistent statements about whether he had appointed
Brian Machengo to be his agent.
In
one instance he disputed that fact before he admitted it with some
qualification. This was so notwithstanding the availability of a
handwritten document which he authored and signed appointing Brian
Machengo to be his agent and the fact that when the plaintiff gave
evidence on the appointment of Brian Machengo to be the defendant's
agent he was never challenged.
The
defendant's demeanour, punctuated by evasiveness and the use of
impertinent language whenever he was confronted with facts presented
him as a witness who was seeking to mislead the court.
This
court is convinced that the plaintiff has established on a balance of
probabilities that he entered into an agreement with the defendant
and that pursuant to that agreement he transferred his Old Mutual
shares to the defendant. The defendant failed to perform in terms of
the agreement. The plaintiff, as he was entitled to do, cancelled the
agreement.
He
is entitled to the return of his shares or payment of the value of
the shares.
It
was submitted, on behalf of the defendant, that Old Mutual PLC is no
longer listed on the Zimbabwe Stock Exchange.
That
fact is not a bar to an order that the value of the shares be
calculated as at the last day that that company traded in Zimbabwe.
In
the result, IT IS ORDERED THAT:
1.
Judgment be and is hereby given in favour of the plaintiff and
against the defendant for:
(a)
Delivery
to the plaintiff of 167,275 Old Mutual Public Limited Company shares
within ten days of the date of this order; or, alternatively;
(b)
Payment
of damages equivalent to the value of 167,275 Old Mutual Public
Limited Company shares calculated using the rate determined by the
Zimbabwe Stock Exchange as at the close of trading on the last date
that that company traded in Zimbabwe.
2.
Defendant shall pay the costs of suit.
Kantor
& Immerman,
plaintiff's legal practitioners
Mushoriwa
Pasi,
defendant's legal practitiopners
