BERE J: On 22 July 2008, the plaintiff issued summons
out of this court seeking the following:
(a) an order compelling the defendant to
release to her 16 herd of cattle, plough, scotch cart axle, 2 size 16 tyres
with tubes and rims, 75 litres of petrol and water pump
(b) costs of suit.
The facts as given by the plaintiff
which gave rise to this suit can be summarised as
follows:
The
plaintiff and her husband Isaiah Mucha are married in terms of the Marriage Act
[Cap 5:11] (formerly Cap 37) and they jointly own the property
forming the subject matter of this suit. At the time the plaintiff issued out
summons her husband was critically ill as a result of a serious assault
perpetrated against him by the defendant who happens to be a brother-in-law to
the plaintiff. That relationship stems from the fact that the defendant is a
brother to the plaintiff's husband.
The
plaintiff and her husband stay at house number 7718 Kambuzuma 3, Harare but have their
rural home in Chikomba. Their cattle at their rural home were left in the
custody of the defendant who would look after them and would from time to time
account for them to the plaintiff and her husband. This is a common rural
practice in this country where many families have basically two homes, one
urban and the other a rural one.
In 2000, at the height of the land
reform exercise in this country the defendant was resettled at plot 51 MuGreek
farm in Marondera district and when he relocated to that place he took with him
the plaintiff's cattle
After
he had settled at his new place, the defendant approached the plaintiff and her
husband and asked to be lent a water pump, plough, scotch cart axle, 2 tyres
with tubes and rims both size 16, and he undertook to return these items once
he was on his feet.
In
July 2007 the plaintiff's husband went to the defendant's new place to collect
the items alluded to in the summons. The result was a near fatal assault on him
by the defendant ostensibly to prevent him from getting the family property.
When the plaintiff unceremoniously left the defendant's homestead on this day
he left behind a motor vehicle with 75 litres of petrol.
In
his plea to the plaintiff's claim the defendant flatly denied ever keeping the
plaintiff's cattle and suggested “the cattle in question were in fact kept by the
defendant's parents”.
The
defendant further alleged he only left his original home in Chikomba for
MuGreek farm with his six herd of cattle.
As
for the other items the defendant denied ever getting them in the manner
suggested by the plaintiff or at all. His was a total denial of liability.
At the pre-trial conference held on
16 July 2009 both parties identified basically two issues namely:
(a) whether or not the plaintiff's
cattle were being kept by the defendant if so, whether or not the defendant
took the cattle with him when he
relocated to the resettled area; and
(b) whether or not the defendant was
given a scotch cart axle, two x size 16 tyres with tubes and rims, water pump
and 75 litres of petrol by the plaintiff. If so whether or not the defendant is
supposed to return them to the plaintiff.
THE EVIDENCE
Four people gave evidence in this
case. The plaintiff and her husband testified in favour of the plaintiff's
case. The defendant and his son Evanz Mucha testified in favour of the
defendant's case.
Where closely related family members
are the key witnesses in trial proceedings the court has to exercise extreme
caution because chances of being misled are extremely high. Throughout the
recording of the evidence in this case, I remained alive to this reality.
The plaintiff opened her case by
giving evidence to the effect that prior to his relocation to MuGreek farm in
Marondera, the defendant was looking after the family's cattle that is, (the
plaintiff and her husband's cattle). She testified further that upon his
relocation to Marondera, the defendant took the family cattle with him.
It was the plaintiff's testimony
that prior to the defendant's relocation in Marondera, there appeared to be no
problem at all.
To confirm the fact that the
plaintiff and her husband had cattle in Chikomba the plaintiff produced their
1986 stock card exhibit 5 which showed that the family had nine herd of cattle
in the district of Chivu. The stock card bore the official stamp of the Animal
Health Inspector. On that card the dip tank is given as Mpatsi, a factor which
was confirmed by both the defendant and his son Evanz.
Further to this both the plaintiff
and her husband Isaiah Mucha testified that after the defendant had settled at
MuGreek farm, he paid the family a routine visit at their Kuwadzana home here
in Harare to officially notify them that he had taken the family's cattle with
him to MuGreek farm. It was Isaiah Mucha's evidence under cross-examination
that the defendant had specifically told him that he had taken advantage of the
chaotic situation associated with the movement of resettled farmers in 2000 to
drive the cattle to MuGreek farm without any paper work. The court will take
judicial notice of the fact that indeed, the movement of resettled farmers
which spontaneously occurred in 2000 did not necessarily follow strict laid
down procedures when it came to the movement of cattle and other related
domesticated animals. It was an error of free for all.
It was also the plaintiff's
husband's unchallenged testimony that following the visit by the defendant to
Kuwadzana, the plaintiff's husband himself made a follow up at MuGreek farm
whereupon arrival, he was shown 19 herd of cattle by the defendant's daughter
Linda (as directed by the defendant) who further revealed to him that the 20th
animal had died and part of its remains were stacked in 2 x 50 kg bags in the
form of dried meat which the witness was supposed to take to Harare for family
relish.
It was his evidence that on this
occasion the defendant was not there but whatever Linda told her was in fact
instructions coming from the defendant.
This witness further testified that
after this visit he went back again to MuGreek farm and arranged with the
defendant about the collection of the cattle and at that stage there appeared
to be no problem at all.
The witness further gave evidence
under cross-examination to the effect that when he last saw the family cattle
in 2007 he was shown 41 fully grown animals and 7 calves and that it was his
intention when he finally went to collect the animals that he would discuss
with the defendant the number of cattle he would leave for the defendant in
appreciation of the work that he had done in looking after the cattle.
Both the plaintiff and her husband
gave a flawless account of how the defendant paid them a visit at Kuwadzana and
asked for and was given a water pump, tubes, scotch cart, axle and the other
items mentioned in the summons. It was Isaiah Mucha's evidence that he actually
took these items from his car pot and handed them over to the defendant and
loaded them into his motor vehicle and drove the defendant to Mbare Musika from
where he boarded public transport to MuGreek farm with the items. The
arrangement was that these items would be returned once the defendant had
settled down at his newly found home.
According to the plaintiff and her
husband, things fell apart when the later went to muGreek farm on a Saturday to
collect some of the family cattle. The plaintiff's husband had driven alone and
on this day he was subjected to a severe assault by the defendant having been
hog-tied. The reason for the assault was to prevent the plaintiff's husband
from taking the family cattle as well as the other property mentioned in the
summons.
Although the plaintiff's declaration
gives the impression that she had gone to MuGreek farm with her husband on this
fateful day, the court makes a specific finding that the plaintiff only
followed her husband on a Sunday the very day she rescued him from the vicious assault by the defendant.
This clarification was provided by
both the plaintiff and the defendant in their evidence in chief and in evidence
given under cross examination.
It is also the court's finding that
the assault that took place when the
plaintiff's husband went to collect the family's property, occurred on 8 July
2007 and not 28 July 2007 which the plaintiff explained must have been a
typographical error by her erstwhile legal practitioners.
As for the claim for seventy five
litres of petrol allegedly drained by the defendant, the claim arose from the
fact that when the plaintiff's husband drove to MuGreek farm to collect the
family cattle and the other property he had filled up his motor vehicle with
seventy six litres of petrol. In addition he had carried twenty litres of fuel
in a container. The plaintiff's husband's uncontroverted testimony was that he
must have used fifteen litres or so from Harare
to MuGreek farm.
The result of the plaintiff's
husband's unexpected assault was that the plaintiff and her husband
unceremoniously left MuGreek farm and when they did so the defendant remained
with both the motor vehicle and the unused fuel.
The plaintiff produced exhibits
numbers I and II to show that she needed a court order and a warrant of arrest
to compel the defendant to release the motor vehicle. It was the unchallenged
evidence of the plaintiff that when the car was eventually recovered it had no fuel.
The court therefore finds no hesitation in concluding by inference that the
defendant must have used the fuel and the plaintiff's claim under this heading
is therefore justifiable.
In denying the claim by the
plaintiff, the defendant denied ever keeping the plaintiff and her husband's
cattle and denied ever receiving the other family items.
The defendant argued that the cattle
he took from Chikomba to MuGreek farm were his as the plaintiff and her husband
did not have any cattle.
The defendant produced his own stock
card exhibit 7, and exhibit 6 the movement of animal permit.
The plaintiff's position was that
the stock card was a fake document as it bore no official stamp. It referred to
Munyati Kraal whereas the correct kraal ought to have been Madyangove, so her
argument went. Above all, the plaintiff drew the court's attention to the
defaced name of the card holder as well as the identity number of the card holder
which had been interfered with.
In addition, the stock card made reference
to the dip tank as Honeyspruit instead of Mpatsi which was the communal dip
tank for both the plaintiff and the defendant in Chikomba district.
The reservations raised by the plaintiff
are quite evident on exhibit 7. The stock card has no official date stamp from
the Animal Health Inspector and there is overwhelming evidence of interference
both on the name of the card holder and the identity number.
It was quite curious that both the
defendant and his witness did not know Honeysprint as their dip tank. Not only that
but both concurred that Munyati was not the name of their kraal head.
In the court's view, the
authenticity of the plaintiff's stock card is beyond reproach but the same
cannot be said of the defendant's stock card. That document is a fake document
which was brought in in a stout effort to confuse issues in order to mislead
the court.
Exhibit 6 did not in any way advance
the defendant's position because it makes specific reference to plot 49 Munyati
when in fact it is common knowledge that the defendant was a resident of Madyangove
kraal (not a plot holder then) in Chivu district before resettling at MuGreek
farm in Marondera.
Secondly, the movement of the
animals reflected on exhibit 6 is restricted to the district of Chivu and yet
the cattle were supposed to be moved to the district of Marondera.
It is not surprising that even the
classification of the animals on both the permit and the stock card was not
confirmed by the defendant's witness, Evanz.
What is clear from both exhibits 6
and 7 is an unmistakable determination by the defendant to lie to this court.
Not only did the defendant lie in
this regard, but he made a feeble attempt to deny the existence of exhibits 1
and 2. Not only that but he took his dishonesty a gear up by trying to deny
that he is currently facing the charge of assault
It was only the production of form
53 by the plaintiff which silenced both the defendant and his counsel in this
regard.
The credibility of both the
plaintiff and the plaintiff's husband cannot be doubted in this case.
For the plaintiff, almost everything
she referred to was backed up by documentary evidence. Exhibits 1 to 5 confirm
the observations made by the court, when the plaintiff's husband said he was
assaulted, exhibit 4 confirmed that.
The genuiness of the plaintiff's
stock card was largely confirmed by the defendant himself and Evanz
particularly their confirmation of the name of the kraal head and the name of
the dip tank.
When the plaintiff testified that the
defendant was keeping their family cattle that must be accepted. This position
is further confirmed by none other than the defendant when he gave conflicting
views on this issue. In his evidence in chief the defendant tried very hard to
convince the court that the plaintiff and her husband had no cattle under his
custody. In his summary of evidence the defendant says, these cattle were being
kept by the plaintiff's father in-law. In one breath he said the cattle were in
fact being kept by their mother. Lies know no boundary and the defendant was
caught up in a web of his own lies.
It was equally amazing that when the
defendant through his counsel was given an opportunity to cross-examine both
the plaintiff and the defendant, the cross-examination did not focus on the
many issues that the defendant raised in his evidence in-chief. Such issues
like who accompanied the plaintiff's husband when he went to collect his cattle
at MuGreek farm, the wild allegations that the plaintiff's husband was
displaying signs of insanity and the further allegations that he was trying to
take their mother as a wife were never tested under the cross-examination of
both the plaintiff and her husband. It is doubtful that if the defendant had told
his counsel about all these details, his counsel would not have cross-examined
the witnesses on these very important issues. One can only conclude that the
defendant was trying to make up his case as the evidence unfolded.
Evanz was of virtually no assistance
to the defendant because by his own admission, he did not have an independent
knowledge of what he told the court. He tried to feed the court with purely
hearsay evidence.
His testimony was quite limping. He
could hardly remember when his father the defendant purchased cattle, neither
could he remember the classification of his father's cattle at the time the
family went to settle at MuGreek farm.
The plaintiff's husband testified
that at one stage he was shown nineteen herd of cattle and in 2007 he saw forty
one herd of cattle and seven calves. If out of these animals the plaintiff
makes a conservative claim of only sixteen cattle, surely she cannot be
penalised for that.
In the end I am satisfied that the
plaintiff's claim is a legitimate one and she has been able to establish it on
a balance of probabilities.
Before I conclude this matter I must
comment on the lackadaisical conduct of the defendant's counsel.
Upon concluding, the recording of
evidence in this matter I implored both the unrepresented plaintiff and the
defendant's counsel to submit their written submissions on or before 5 October
2009.
The unrepresented plaintiff
submitted her written submissions in time but as I write this judgment now (8
October 2009) the defendant's counsel has not bothered to submit his
submissions. Such conduct is deplorable particularly if it is coming from an
officer of this court.
Everything said, I am inclined to
make the following order:
(a)
That
the defendant be and is hereby ordered to release to the plaintiff within ten
working days of the granting of this order, sixteen herd of cattle, one plough,
scotchcart axle, 2 x 2 size 16 tyres with tubes and rims, water pump and
seventy five litres of petrol.
(b)
That
in the event of the defendant failing to comply with ( a supra), the deputy sheriff be and is hereby ordered to enforce this
order.
(c)
That
the defendant pays costs of suit.
Plaintiff In person
Coghlan,
Welsh and Guest, defendant's legal
practitioners
