Civil
Trial
MATHONSI
J:
The first plaintiff is a farmer who owns Ziswa Farm (“the farm”)
otherwise known as Farm 23 of Lawrencedale estate in the District of
Makoni, Rusape which farm he prefers to rent out while staying on it,
as he currently rents it out to his neighbour, he having rented it
out to the first defendant prior to that and yet to another person
before the first defendant came in.
The
second plaintiff is his wife who, apart from the fact that she was
cited as a party along with the first defendant in a joint venture
agreement concluded between the couple and the first defendant on 9
January 2009, has been cited in these proceedings in extremely
unclear circumstances.
The
first defendant is a commercial farmer, a tobacco grower of note,
conducting such business generally at Landos Farm, Halfway House in
Headlands and is a director of the second defendant a duly
incorporated company.
The
plaintiffs instituted proceedings against the defendant and in their
summons and declaration they set out an array of claims, 13 in all,
arising out of a lease agreement signed between first plaintiff and
the first defendant on 9 January 2009 on which date a second
agreement titled “Memorandum of Joint Venture Agreement” was also
signed between the first and second plaintiffs on the one hand and
the first defendant on the other hand.
The
plaintiffs averred that sometime in 2008 they had entered into a long
term development lease agreement with the defendants for the use of
the farm and that although the first defendant had signed as the
tenant, the actual farming was done through the second defendant.
In
terms of the lease agreement the defendants were expected to put up
and maintain infrastructure at the farm like the construction of 44
houses for workers, dam and barn construction.
The
relationship between the parties deteriorated over time resulting in
the defendants cancelling the lease agreement on 2 July 2012 before
vacating the farm without notice.
The
plaintiffs averred further that when the defendants vacated the farm
they unlawfully removed certain items of property belonging to the
plaintiffs valued at US$186,701-00 which amount they claimed.
The
defendants badly damaged the plaintiffs property valued at
$15,905-00.
They
removed fences and gates as they vacated whose value is $7,600-00.
During
the tenancy the defendants damaged 4 barns which were falling at the
time they left while 2 barns were badly cracked and supported by
poles. This was in breach of the agreement of the parties requiring
the defendants to keep the barns in good and perfect condition and to
repair them to usable state when vacating.
The
plaintiffs claimed $5,008-00 being the costs of repairing the barns.
In
further breach of the agreement the defendants left the farm without
removing and destroying tobacco stalks from the land and seed beds
which exercise the plaintiffs had to undertake at a cost of $780-00
including a fine paid to the Environmental Management Agency.
The
plaintiffs claimed a sum of $26,313-00 being the value of their
property and machinery including overhead water storage tank and
pipes, workers houses, underground cables, water reservoir, cast iron
pipes, pump unit, electricals at boreholes and at transformers.
The
plaintiff averred further that in terms of the lease agreement the
defendants were obliged to deliver to them certain quantities of
maize but failed to deliver 50 metric tonnes of maize worth
$15,000-00 which amount the plaintiffs claimed.
They
claimed a sum of $45,000-00 damages for loss of income for the
2012-2013 farming season they would have realised if the defendants
had not prematurely terminated the lease agreement and without
notice.
A
sum of $64,160-00 was claimed for arrear rentals for the 2011-2012
tobacco crop being 8% of the gross turnover in respect of crops
produced at the farm in terms of the agreement given that 220,000kgs
of tobacco were produced during that cropping season.
A
sum of $1,980-00 refund, of what the plaintiffs paid for rates and
levies to Makoni Rural District Council was claimed which should have
been paid by the defendants in terms of the lease agreement.
The
plaintiffs claimed $5,500-00 being their share of the hailstorm
insurance claim made by the defendants to their insurers for the
2009-2010 and 2010-2012 seasons.
A
sum of $67,506-00 was claimed as the value of a centre pivot and
generator which although purchased by the defendants, they should
have left at the farm for the plaintiffs benefit as part of the long
term development of the plaintiffs farm.
They
claimed $4,240-00 being 8% of the tobacco seedlings grown on their
farm by the defendants.
The
defendants have contested the claims and in their plea they took
issue with the citation of the second defendant as a party to the
proceedings given that there was no agreement, of whatever nature,
between the plaintiffs and the second defendant.
In
respect of the first defendant, they averred that he complied with
all the terms of his agreement with the plaintiffs and denied owing
the plaintiffs any money.
The
relationship between the parties suffered as a result of the
plaintiff's endless interference with farming operations and
peaceful enjoyment of the property resulting in a court order being
sought and granted interdicting such interference.
The
first defendant had to cancel the lease agreement after the
plaintiffs had preferred false and malicious criminal charges against
him.
The
defendants averred that at the termination of the lease a
verification exercise was conducted by the parties which established
that all the plaintiffs property had been accounted for and as such
none was removed or damaged.
In
addition, the fact that the plaintiffs had forcibly taken possession
of the farm and equipment, meant that the defendants could not be
expected to account for the damage to any property during that
period.
They
denied vacating the farm secretly or removing fences and gates in the
process especially as the parties were aware of the termination and
the defendants vacation of the farm. They denied vandalising any
property and that the plaintiffs were entitled to any damages for
loss of income.
The
parties agreed on the issues for trial at the pretrial conference
which are captured in their joint pretrial conference minute as:
(a)
Whether there was an agreement between the parties as pleaded by the
plaintiffs;
(b)
Whether the defendants fully complied with the terms and conditions
of the agreement;
(c)
Whether some of the plaintiffs claims have prescribed, if so, which
ones specifically; and
(d)
Whether the plaintiffs are entitled to the claims set out in the
summons.
Only
the first plaintiff gave evidence while the second plaintiff chose
not to. They also called witnesses namely, Assistant Inspector Nixon
N'andu, Canaan Nyamombe and Fanuel Phange.
It
was the evidence of the first plaintiff (Ziswa) that prior to the
first defendant (Chadwick) approaching him in 2008 he had been
leasing his farm to someone else and that after Chadwick left
unceremoniously in July 2012, he again let out the farm to a
neighbour of his Mr Coleman of Mersy Farm, who, upon taking over
paired the 8 barns which Chadwick had left in a falling condition.
Himself
and Chadwick negotiated the lease agreement which was reduced to
writing the latter having printed a standard form agreement obtained
from the National Tobacco Association out of his computer.
He
stated that they negotiated every clause and as they did so they
added annotations in long hand, which unfortunately were not
initialled or counter signed by the parties although every page was
initialled at the bottom.
After
signing the lease agreement they also prepared and signed a Joint
Venture Agreement (JVA) at the instance of Chadwick who wanted it to
be signed to protect the parties given that politically leasing farms
was unacceptable while joint venture agreements were tolerated.
As
far as he was concerned the real agreement between the parties was a
lease and not a joint venture which is why the JVA also spoke of a
lease and rentals. He referred to both agreements which are part of
Exh 1.
Although
both agreements were signed with Chadwick the witness insisted that
they were concluded with both Chadwick and the second defendant,
Landos Farm (Pvt) Ltd (Landos), a claim which is difficult to sustain
given that Landos as an incorporation was not cited at all in both
agreements.
He
sought to hold Landos liable because Chadwick introduced himself as
its directors and used its letterhead in correspondence.
Some
payments were made by Landos.
His
claim is based on both agreements.
He
explained that while the written agreements were signed on 9 January
2009 he had already allowed the defendants to commence farming in
August 2008 and that the written agreements only recorded what the
parties had agreed.
It
is significant that the lease agreement does not necessarily contain
some of the necessary details with the first clause omitting the name
of the farm and its hectarage. It also omits the lease period and the
date of commencement.
It
only has the date of termination entered in pen.
On
the various additions to the document appended in bearly legible ink,
Ziswa said some were entered by himself while some were made by
Chadwick as the two negotiated the terms of the agreement.
The
lease provides in clause 2 that the land was leased for purposes of
growing tobacco on 30 hectares, maize on 40 hectares, 20 hectares of
wheat or another crops agreed between the parties.
Ziswa
said practically, Chadwick only grew maize during the first year and
did not do so for the remainder of the time he was on the farm
electing to concentrate on tobacco farming. He never grew wheat or
any other crop for that matter.
The
payment of rent is provided for in clause 3 which reads:
“The
rent payable by the Lessee to the Lessor shall be 6% on the US$-----
of the gross turnover in respect of the crops produced on the said
land and payment of such rent/lease, shall be secured by means of
direct payment into a FCA given by the lessee in favour of the
Company against proceeds of tobacco sold through the Lessee's
contract and in the case of other such as maize/wheat in equivalue
(sic) it shall be executed and registered as soon as may be after the
signing of this lease. An advance payment shall be discussed if
necessary.”
Despite
this provision, Ziswa testified that his claim was for 8% of the
gross turnover which he justified by reference to a letter written by
Chadwick, on a Landos letterhead, on 22 February 2011 which reads:
“Dear
Mr Ziswa
RE:
JOINT
VENTURE OFFER FOR 2010-2011 SEASON FOLLOWING
I
am writing to present my offer on the subject stated above. I am
hoping my proposal will be acceptable to you and will be effective
for the next three seasons.
I
am proposing that I pay you 8% of the gross realisation from the
tobacco sales as my joint venture offer. This will be for the sole
use of your whole farm.
Please
consider that this is the best that I can do. May I refer you to the
cost of production document that I sent you earlier on. If I go
beyond this offer the whole enterprise ceases to be viable. I believe
this offer presents a win win situation for both parties.
This
really is the best that I can do. May
you please inform me of your decision by or before 15 March so as to
enable me to make preparations for the coming season.
Yours
faithfully
Greame
Chadwick” (the underlining is mine)
Although
Ziswa said he accepted the offer, he did not say when and how this
was done.
He
did not produce any document of acceptance neither did he expand on
where the acceptance was communicated to Chadwick.
This
gives credence to Chadwick's argument that his offer was never
accepted and that the 6% contained in the lease agreement remained in
force.
It
is noteworthy that Chadwick appeared to have been writing in his
personal capacity even though he used Landos's letter head.
Ziswa
said that the lease was to subsist for an initial period of 5 years
but they then “moved to 8 years” and that it was “a
developmental lease agreement” enjoining Chadwick to embark on
improvements of a permanent nature on the farm like the construction
of dams, staff housing, improving barns and other infrastructural
development.
He
never did except for the construction of 11 staff houses out of an
agreed total of 44 houses. Even the 11 constructed were not
completed. He only repaired one barn which had been burnt down prior
to the commencement of the lease. Even in respect of that one, the
parties did it together with Ziswa providing the bricks. Chadwick
however left the barns falling and supported by poles.
He
said the failure to insert the lease period on the agreement was an
oversight. So was the failure to insert the name of the leased farm
and the date of commencement of the lease, but it was 1 September
2008 while termination was at the end of August 2018 at the
completion of 10 years.
It
turns out it was not 5 years, neither was it 8 years but Ziswa did
not explain when the lease period changed to 10 years.
He
stated that at the commencement of the lease, they were to hand over
to Chadwick their assets located at that farm which the latter was to
use for his farming activities.
In
that regard and in the process of identifying and handing over those
assets, they produced an inventory at entry point listing these
assets. He made reference to p20 to 26 of Exh 1 the inventory in
question saying all the listed assets were handed over in good
working order. The inventory has a column with the title “Quantity”
which he says is where they endorsed not only the quantity of the
items involved but also the condition of the items so that if the
item was not in good order that would be stated in that column. The
fact that there would be no comment on an item meant that it was in
good order.
A
look at that inventory shows only a couple of comments.
The
first relates to diesel tanks with the comment “on stand”. The
second relates to an MF tractor with the comments “1 No Wheels.”
Other than the description of the disc harrow as “1 red in colour”
nothing supports Ziswa's claims on the condition of the items whose
state was not given throughout.
Both
parties kept their copy of the inventory.
Ziswa
went on to say that although most of his claims are not based on the
written agreements they had a lot of discussions which resulted in
agreements not reduced to writing. As far as he is concerned a verbal
agreement is also binding. He referred in that regard to the
agreement on the construction of dams.
After
going through the list of items which he said were handed over to
Chadwick including what he said were new “Flue Pipes not fitted to
the barns but kept at the sheds” as well as his own stock of
fertilisers not for use by Chadwick, Ziswa went on to say that the
tenant had taken over the items and grew tobacco for 4 years with him
being paid due rentals for 2009, 2010, and 2011. He was however not
paid anything for the last year the tenant was at the farm which is
2012.
The
claim for arrear rent therefore relates to the 2011 to 2012 tobacco
growing season.
In
arriving at the 8% of the tobacco produced for that season (as
opposed to 6% stated in the agreement), he had to estimate using the
sale sheets of Landos which he obtained.
He
went through those sale sheets stating that he had to resort to
estimation because the tenant did not give him the information.
Based
on the sale sheets and the other information on the tobacco that was
produced they computed that 220,000kgs of tobacco was sold during
that year and his 8% of it is the sum of $64,160-00 being claimed as
arrear rental for the 2011-2012 growing season.
When
the plaintiffs wrote a letter of demand to Chadwick on 23 July 2012
they stated that 205,800kgs of tobacco had been realised at the farm
during that period which had been sold at $4,10 per kg giving a gross
of $843,780-00. They were entitled to 10% of it which is $84,378-00.
It
is not clear where 10% cropped up from but they claimed it all the
same.
In
their summons the claim was reduced to 8% of the gross turnover
estimated at 220,000kgs giving the $64,160-00 being claimed.
Ziswa
stated that in terms of the parties agreement the tenant was obliged
to pay rates and levies due to Makoni Rural District Council which
for the year 2011-2012 was $1,980-00. As the tenant did not pay in
January 2012, he was forced to pay on their behalf. He would like to
be reimbursed that amount.
He
stated that although he received a receipt upon payment, he was
unable to produce it.
In
support of his claim that the tenant was obliged to pay rates, Ziswa
made reference to a letter written by Chadwick, again on the Landos
letterhead, on 9 November 2010 which reads in relevant part as
follows:
“Dear
Mr Ziswa
RE:
RESPONSE TO YOUR LETTER DATED 5/11/10
1.
Landos Farm agrees to make a payment of: $1,440 (that had been paid
for rates); $750 (for 50 cords of wood @ $15); $350 (barn fire);
Total 2,540.
The
money will be paid in on Wednesday the 10th
of November 2010. The proof of payment will be on the farm on
Thursday the 14th
of November 2010 as well as for you to collect.”
Unfortunately
Ziswa did not see the need to produce the letter of 5 November 2010
which was being responded to.
He
however maintained that the payment of rates was the responsibility
of the tenant even though the lease agreement had no such provision.
In
respect of the claim for $5,500.00, Ziswa stated that the tenant was
obliged to insure the tobacco crop against hailstorm destruction. In
the event that the tobacco crop is destroyed by hailstorm the insurer
would pay for it.
Hailstorm
destroyed the tobacco crop and the tenant claimed from his insurance
and was paid but he did not transmit to him 8% share due in terms of
the lease agreement. He is entitled to a percentage of the gross
turnover and would also be entitled to the same percentage of
insurance payment made for destroyed crops. He is not aware of the
exact amount involved because Chadwick refused to give him the
figures.
He
has had to estimate the figure based on the investigations which he
carried out involving his discussions with the employees of the
insurer who came to the farm for an inspection.
He
did not disclose what those investigations revealed only stating that
he estimated the figure based on his experience and the damage he
observed on the crop, an explanation not helpful at all.
Asked
as to why the claim for hailstorm insurance involving a 2009-2010
crop would be made by summons served on 26 November 2012 outside the
prescriptive period of 3 years, Ziswa dithered.
He
then said that “in the heat of things” there was a typing error
in the summons because his hailstorm claim is for the 2011-2012
cropping season and not 2009-2010 claimed in the summons.
Significantly,
no attempt was made to amend the pleadings.
Pressed
by counsel on how he could possibly justify a claim in which he had
no figure, Ziswa offered to withdraw the hailstorm claim accepting
that it could not be proved.
In
respect of the claim for the replacement value of the centre pivot
and generator Ziswa had a difficult time indeed.
He
said that the tenant had purchased these movable assets and brought
them to the farm for use during the tenure of the lease. He had
however taken them away at the end. As far as he is concerned these
items fall under the long term development provision of the parties
agreement meaning that they should accrue to the farm. As such they
should be returned or their value paid.
As
to how such items should qualify for permanent improvements he could
not explain.
His
problems were compounded by the fact that he had, through a letter
written on his behalf by his legal practitioners on 12 April 2012
written to Chadwick, stated in part that:
“Of
essence, the agreement was that of long term development partnership
in terms of which you are obliged to undertake permanent structural
development on the farm such as construction and other infrastructure
development. We have noted with concern that you have failed to meet
your side of the bargain. You undertook to built (sic)
44 houses for the workers, however, only 11 have been constructed to
date. You have bought a centre pivot for irrigation. However it does
not qualify as long term development because it depreciates in value.
Also there is a huge list of farm equipment that has broken down
which you have not bothered to repair.”
There
you have it.
The
plaintiffs themselves did not regard the centre pivot as a long term
developmental addition and by any stretch of the imagination, the
generator cannot be said to be either.
The
plaintiffs themselves understood long term to apply to construction
of workers houses, dam and barn construction and other
infrastructural development.
Nothing
more needs to be said about that.
On
the value of the property either allegedly removed from the farm and
not returned or those damaged by the tenant and not repaired, Ziswa
reiterated that all the property given to the tenant at commencement
was not only usable but also in good working order.
He
pointed out that at no time did they make life difficult for the
tenant because he had free access to the farm at all times and had
guards looking after the farm.
It
was only after he discovered that they were removing his property
from the farm and refusing to return it and failing to pay to him
what was due in terms of the agreement that he moved in with 3 of his
own guards and closed the barns to prevent the tenant from removing
any tobacco produce.
The
tenant removed an electricity line running from the first to the
second dam, wires and poles were all removed. The implements listed
in the pleadings were also removed including underground pipes.
He
produced Exh 2, an album of photographs showing the state of some of
the items which had been given to the tenant at the commencement of
the lease agreement. The photographs were taken by his wife, the
second plaintiff, and their legal practitioner, in the presence of
police inspector N'andu at the time that the defendants vacated the
farm.
Unfortunately
none of the photographs depicts the appearance of any of the items at
the commencement of the lease agreement and would, naturally be
unhelpful standing on their own, for comparison.
Ziswa
stated that Chadwick had used most of his equipment during the lease
but broke down most of them with some of the damage being inflicted
deliberately.
For
more than 2 years, Chadwick had not repaired the damaged equipment.
He
made reference to a list of items, p15 of Exh 1, which he said was
property stolen, and removed from the farm and another list, p18,
which he said was property removed and returned in a damaged state.
Although
in the summons he was claiming sums of $187,707-00 as the value of
the property removed and not returned, $15,905-00 as the value of
property removed and returned in a damaged state, $7,600-00 as the
value of fences and gates removed or badly damaged by the tenant and
$15,008-00 being the cost of repairing the damaged tobacco barns,
Ziswa said he has since seen the light.
He
now realises that he cannot sustain those claims given that the items
involved were not new at the time the tenant took them. He is
therefore not claiming the values contained in the summons but would
now defer to the testimony of an expert witness, Fanuel Phange an
accountant who penned exhibits 3 and 3a representing the depreciated
values of all the items involved.
He
said that he is the one who gave Phange the list of all the items
involved and their description. He used the original inventory to do
so. He gave Phange the quantities and the quotations for the cost of
each unit, which he had sourced himself.
With
all that information, he instructed Phange to depreciate the values
of the items using international accounting standards. He did and
came up with a grand total of $385,943-00 which he now craves.
On
the claim for $708-00 for labour hired to clear tobacco stalks from
the fields and seed beds as well as the penalty paid to the
Environmental Management Agency, Ziswa said he hired 10 or 15 casual
workers at $4,00 a day for one week. He hired a tractor for $200-00,
bought diesel for $150-00 and paid a fine of $150-00 to EMA.
He
could not properly break it down.
If
he hired 10 workers for 7 days (assuming that is the number of days
as opposed to 5 working days), he would have paid each one of them
$28-00 per week and all of them $280-00. If he hired 15 the figure
would be much higher by $140-00 meaning he paid $420-00. Working on
the lesser figure, he would have paid $780-00 under this head. The
higher the figure would yield a total of $920-00.
Ziswa
said in terms of the parties agreement, which again is not captured
in the written lease and JVA, the tenant owes him 50 metric tonnes of
maize.
They
had agreed that Chadwick would deliver to him 18 tonnes of maize in
the first year, 12 tonnes the 2nd
year and then moving to 18 tonnes annually from the maize he was
required to grow at the farm. He therefore owes 50 metric tonnes
valued at $15,000-00.
In
arriving at the value he inquired from GMB what the value of the
maize was and was told that it was $300-00 per tonne adding to
$15,000-00 he is claiming.
Again
he does not have a quotation to support the claim.
Ziswa
testified that during the final year that the tenant occupied his
farm, he had grown tobacco seedlings at the farm. He used these
seedlings to grow the main crop of tobacco from which he is claiming
a share. Chadwick also took some of the seedlings to his other farms
and sold some to unnamed individuals in unknown quantities.
According
to him seedlings constitute a crop and as the agreement stated that
he was entitled to a percentage of the crop grown at his farm, he was
therefore entitled to 8% of all the seedlings not used to grow the
main crop at the farm.
He
stated that he had established that seedlings were sold for $200-00
during the 2011-2012 cropping season. He counted the number of seed
beds at the farm over and above what was required at the farm to come
up, with a claim that would have turn William Shakespeare's Shylock
“The Merchant of Venice” very green with envy.
Regrettably
he did not tell us what amount of seedlings were required at the
farm, how many seed beds were there, how the figure claimed is
arrived at and more importantly how “the young one” of a tobacco
crop could qualify for a crop and found a basis for a monetary claim.
He however conceded that prior to the 2011-2012 season he had not
been paid for seedlings and had not submitted a claim stating that in
previous seasons he had not asked for payment for seedlings because
relations had not soured.
It
is therefore a claim not based on the agreement, but clearly actuated
by malice and a strong desire to claim virtually everything
especially considering that the initial claim under this head was
$10,200-00 made in the letter of demand which was pruned down to the
$4,240-00 now being claimed.
The
final claim of $45,000-00 for loss of income and damages allegedly
sustained as a result of the premature termination of the lease, was
withdrawn by Ziswa in his evidence in chief. He said after
consultation with his lawyers, he has decided to abandon that claim
because he “wants this claim to be clean on things damaged and
money not paid”.
It
is a concession properly made in light of the abundance of evidence,
including a court order granted by this court by consent, pointing to
interference with farming activities by the plaintiffs which led to
the termination of the lease.
Under
crosss examination, Ziswa conceded that the lease agreement that he
relies upon contains a non variation clause. Clause 9 reads:
“This
agreement constitutes the entire agreement between the parties and no
representation or undertakings given by one of them to the other of
them prior to the execution hereof, and no variation of the
conditions hereof, shall have any force or effect unless recorded in
writing and executed by the parties hereof.”
The
provision itself admits of no other interpretation but what it states
and Ziswa conceded as much.
He
also admitted that he tried hard to get Chadwick to sign an improved
lease agreement during the tenure of the lease without success and
that the one signed on 9 January 2009 remained effectual throughout
governing the relationship between the parties.
He
also conceded that he was paid a sum of about $21,000-00 in 2012
being rent due to him although he was of the view that such payment
was for arrears that had accrued during the 2010/11 cropping season
forgetting of course that in his evidence in chief he had said that
he had been paid all his dues for all the years except the 2011-12
season.
Ziswa
also admitted under cross examination that Chadwick had brought his
own equipment which he used at the farm and that he repaired a barn
that had been burnt down among other improvements at the farm.
When
confronted about other improvements effected by Chadwick he became
evasive only saying he could not remember some of them.
Valentine
Ziswa did not make a good witness at all. His demeanour was extremely
bad and he was given to wild exaggerations of his claims. He struck
me as someone actuated by an improper motive and determined to
maximise on what he can recover from the tenant at all costs thereby
reducing the claim to ridiculous levels. He just tried too hard.
A
few examples should suffice.
He
prevaricated a lot on the duration of the lease agreement and the
level of his percentage share of the gross turnover. He is the same
witness who testified that the lease agreement was for 5 years, he
changed to say it was for 8 years and then for 10 years. At the end
one is left without a determinable duration period.
He
produced an agreement providing for rentals of 6% of the gross
turnover. Although admitting that the initial agreement remained as
the governing covenant of the parties, he claimed 8% of the gross
turnover but failed to justify the basis of it. He also produced a
letters of demand wherein he fixed his share at 10% all the time
suggesting that he had this fixation about extracting more and more
from the defendants which he could not justify.
There
is also the question of the tonnage of maize that he claims. It was
not enough that the claim for delivery of the maize could not be
found in the agreement, he premising it on the remote reference to
production of maize at the farm (maize which was not even produced
except during the first year); he claimed 12 tonnes per year, then 18
tonnes, then 18 tonnes succeeding in creating confusion and giving
substance to the allegation that his claim were always changing every
year.
The
same acquisitive tendency is exhibited in his claim for the center
pivot and generator. As to how these items could be classified as
constituting permanent long term development projects even when he
himself stated earlier that one of them did not, remains a mystery of
gigantic proportions.
His
problems were also compounded by the poorly drafted lease agreement
with endless un-initialled annotations as well as blank portions of
important clauses.
He
was then reduced to basis claims on alleged verbal agreements not
contained in the lease which he said constituted the basing of his
claim, a lease with a provision excluding anything agreed but not
reduced to writing and executed by the parties.
It
is therefore difficult to impute the existence or incorporation of
such alleged provisions negotiated outside the written agreement.
While
relying on a document signed with Chadwick, Ziswa insisted that the
second defendant, a separate legal person from Chadwick, was also
liable to him. This is because Chadwick had introduced himself as its
director, had used its letterhead in correspondence, he knew him
before as being a director, several payments were made by Landos and
he personally made visits to Landos.
None
of these would make a company liable for the debts of its director
contracting in his person capacity.
Regarding
the claim for arrear rentals, his summons claims rent for 2011/12. In
his evidence he admitted being paid for 2009, 2010 and 2011 and not
being paid for 2012. When his attention was drawn to the payment of
$21,000-00 made in 2012 which he admitted, he found himself in
trouble. He swiftly changed to say the payment related to arrears,
which arrears when he had been paid for the years before 2012?
Ziswa
claimed the tenant had free access to the farm to conduct activities
and had the keys. When his attention was drawn to the court order
which he consented to on 24 May 2012, it became clear that he was not
telling the truth. He was forced to admit that he had closed the
barns, brought in his own guards and generally resorted to self-help.
His
claim for hailstorm insurance, apart from confirming fears that he
would claim anything, is comical to say the least. Here is a person
claiming a percentage (which is exaggerated) of a crop allegedly
destroyed by hail and covered by insurance. He does not even begin to
set out the particulars of the claim but still insists on an order
being granted to him in respect of an arbitrary figure. The amount of
tobacco destroyed is not known, so is the value of the insurance and
the gross amount paid to the defendant is also not known.
I
have already commented on the claim for seedlings which again
confirms my conclusion on Ziswa's attitude which is inclined
towards enrichment at all costs. He never received or claimed for
seed production until at the end of the lease. It is a claim that is
laughable by all accounts.
In
respect of the repairs to a barn by the tenant. He initially agreed
that indeed one burnt down barn was repaired. He then changed to say
that he provided the tenant with material to repair the barn. The
question is why he would do that?
He
initially agreed that Mr Coleman the new tenant had re-constructed
the barns damaged by the defendants. Realising that this would impact
negatively on his claim, he again changed to say he had to pay the
new tenant for those repairs.
A
clear pattern emerges here, of an unreliable witness intent on
claiming even that which he is not entitled to.
Assistant
Inspector N'andu was a police sergeant at Headlands police station
when he received a docket of theft in contravention of section 113 of
the Criminal Law (Codification and Reform) Act [Chapter
9:23]
on 10 June 2012 following a report made by Ziswa on the same date
accusing Chadwick of stealing property from the farm.
The
allegedly stolen property was listed on the police Form 162, a list
that was to change significantly as the dispute between the parties
simmered.
As
the investigating officer, he conducted the investigations in the
matter.
He
testified that in the course of his investigations he had visited the
farm and compiled a list of the property allegedly stolen from it by
Chadwick as well as a list of that which he allegedly removed and
returned later in a damaged state. He made reference to the various
inventories in exhibit 1 stating that he had inquired from Ziswa and
Chadwick's representative Richard Banda, when he visited the farm
at the instance of the public prosecutor for Rusape, if both of them
had an inventory prepared at the time of commencement of the lease
and ascertained that they had.
N'andu
said he stood in between them confirming if the equipment listed on
Ziswa's list was the same as that on Chadwick's list. As he did
so he was ticking on the list to confirm that. According to him the
ticks on the inventory at p20 of exhibit 1 and p92 of exhibit
represent what was agreed by both sides as having been present when
Chadwick moved in and not what was confirmed as being in existence at
the end.
After
that verification exercise they then went through the second stage,
that of inspecting the equipment one by one and Ziswa had complained
that some of the property had been damaged. He obtained comments on
the state of each item from Ziswa and recorded such comments as Ziswa
made them. He did not record anything from Richard Banda who remained
quiet throughout. He also refused to sign in acknowledgment of
Ziswa's comments relating to the state of the items.
He
took the comments as they were for production in court as they were
part of the docket. N'andu identified the list at p18 of Exh 1 as
containing the comments on the condition of each item he recorded
from Ziswa during the inspection exercise as Mrs Ziswa took
photographs.
Considering
that the comments were in respect of the state of the items at
termination of the lease and were elicited from Ziswa only, we still
have the difficulty that we do not know the exact state of the items
at commencement to be able to determine that Chadwick indeed damaged
the equipment.
To
the extent that the comments came from a very interested party given
to exaggerations, we have to treat them with caution.
N'andu
did produce the police docket of the criminal investigation that came
to naught after the public prosecutor stood his ground and declined
to prosecute.
The
result of N'andu's industry was captured by the public prosecutor
on 5 September 2012 as:
“Prosecution
declined. I agree with the opinion of the Regional Prosecutor in the
docket. This matter must (be) solved civilly”.
The
opinion of the Regional Prosecutor referred to contains very
significant findings. At p1–2 of that opinion, he stated:
“When
the docket was brought to my attention I gave instructions to the IO
to make further investigations. For my instructions see entry 8 and
the IO complied with 8 and 12 and referred the docket back and
brought the parties. I interviewed the IO in detail and he indicated
that it is very difficult to say the accused person stole the
property listed. The complainant, I interviewed him, and his wife.
The wife of the complainant is materially agreeing with the evidence
of the IO whereas the complainant is not consistent in his evidence.
Some of the property have been used up, some of the property is now
old, some have been repaired some are (sic) now in the scrap yard”.
If
only Mrs Ziswa had been called to testify. She would have been of
much assistance to the court than her husband.
I
am not the only one who found Ziswa's evidence inconsistent and
contradictory.
On
the crime of theft itself the Regional Prosecutor stated at p3 that:
“The
IO confirms that the property is still there.”
Little
wonder he drew the conclusion that:
“From
the evidence at the State's disposal it is clear that the
complainant is trying to use the criminal justice system to settle
contractual breaches between him and the lessee (accused). I suggest
that the complainant should approach the civil court for remedy. To
prosecute such a matter in my view would amount to abuse of the
criminal justice system. After all there is no way the State can
prove all the elements of theft here”.
That
sealed the fate of the criminal charges preferred by Ziswa against
Chadwick forcing him to revert to this court.
It
is important to note that independent investigations by the police
concluded that property belonging to the plaintiff was still firmly
located at the farm and not removed.
From
the very beginning of the investigation N'andu recorded that fact
in entry 2 on 12 June 2012 that:
“This
date I went out to attend the scene of crime at Ziswa farm.
Observations made at the scene were that farm equipment were (sic)
not taken away as whole but some crucial parts were being removed
from each and every equipment e.g on Boom Sprayer only nozzles and
pump were removed and the other part was left behind. Almost all farm
equipment and electrical gadgets were left like that. It was pure
'vandalism'. Taking it from the accused's version that he as
'taking' out his properties, leaves a lot to be desired
considering the way he was removing the parts from equipment”.
Canaan
Nyamombe is a builder by profession who, notwithstanding his lofty
profession, agreed to perform security duties for Ziswa in July 2012.
His
brief was to ensure that no tobacco was sold without Ziswa's
knowledge and that all his property was secure.
Together
with two other men hired for the same purpose they secured tobacco
bales stocked in the sheds and barns to ensure that none of them
would leave the farm without Ziswa's knowledge. Although he says
they were tasked with looking after property, he still insists that
property was being removed and damaged in their presence during the
time that the lease subsisted, a situation very difficult to
reconcile.
The
last witness to testify on behalf of the plaintiff was Fanuel Phange,
the managing partner at Mazhande & Co Chartered Accountants of
Harare, who holds a Bachelor of Accountancy degree obtained from the
University of Zimbabwe in 2001. He attained his articles at Price
Waterhouse in 2004 and is an affiliate of the Institute of Chartered
Accountants. He has worked overseas and South Africa.
He
stated that he has vast experience in asset valuation although this
was his first valuation of farming equipment.
He
testified that asset valuation entails coming up with the dollar
amount at which an asset should be carried at a given date. He stated
that there are different ways of doing so. The gross replacement cost
of an asset is in essence the cost of acquiring a new one while
deprecation is the demortisation or writing down of an asset. It is
the taking away of a percentage from the original value of an asset.
He
was consulted by the plaintiffs to come up with the depreciated value
of all the assets whose value is being claimed from the defendants.
He was told that the assets were not new when they were given to
Chadwick. He was given the list of items involved and quotations the
plaintiffs had obtained to replace them from which he extracted the
prices of the various items and depreciated them.
After
undertaking the exercise he generated exhibits 3 and 3a showing that
the depreciated values of tractors and related equipment being
claimed is $64,170-00; building improvements $62,179-00; building,
irrigation, curing and water pumping equipment $203,890-00; and tools
$34,490-00 giving a grand total of $364,729-00 being claimed by the
plaintiffs.
In
light of the fact that the bulk of the assets were used, he advised
his client that in estimating their value it would be best to use the
depreciation replacement cost as it would be unfair to expect someone
to replace a used item with a new one.
That
is accepted in accounting and covered by International Standard No.
16.
He
however did not depreciate the 4 flat tractor tyres because the
client advised him that they were replacing new and unused tyres.
There were also used items which could only be replaced with new ones
which were not depreciated. He had given different items different
life spans depending on their nature in order to determine their
depreciated value.
Under
cross examination Phange conceded that he had not bothered to inspect
the terms he was asked to depreciate.
In
fact he did not visit the farm but undertook the exercise from the
comfort of his office, yet generally it is necessary to inspect.
He
conceded it was his first time to depreciate farm equipment although
the concept is the same in respect of all assets.
Although
it had been necessary to examine the items in question, he had relied
on Ziswa's 'say so' who is the same person who gave him the
quotations he had obtained from various suppliers. He had not even
interviewed the suppliers on their prices but accepted everything as
given to him by Ziswa. He had relied on single quotes and not the
usual 3 quotes. He relied on detailed descriptions of items given to
him by Ziswa and also conducted an online research on items.
He
did not explain why he had not gone to inspect or examine the items.
He
conceded that it was possible that Ziswa could have supplied him with
manufactured information about the equipment and created dates of
purchase and that exhibits 3 and are not factual but based on
assumptions made by Ziswa and that given different quotations for the
items he would come up with different values. It is Ziswa who gave
him the background of when he had purchased each item and how much he
had expected to use each one of them.
Phange
may be an accomplished professional but I have serious difficulties
with his evidence. He appears to have been an armchair expert if not
a disinterested witness content with only flaunting his professional
qualifications and expecting the court to accept his testimony hook
line and sinker without justification. He relied entirely on
information fed to him by an unreliable witness, Ziswa, who has been
shown to have a perchant for inconsistencies and wanting to
exaggerate claims.
Phange
accepted that ordinarily it would be necessary to examine items being
subjected to evaluation. He did not bother to do so.
From
where I am standing, the entire valuation process, except perhaps for
the formula gleaned from international standards, was fictitious and
extremely unreliable.
At
the end of the plaintiff's case, Ms
Magundani,
who had taken over from Mr Rutanhira,
made an application for absolution from the instance.
The
application was based essentially on 2 grounds namely;
(i)
that the plaintiffs rely on 2 agreements signed by the parties which
do not establish the plaintiffs case at all; and
(ii)
that the plaintiffs case as pleaded had not been established as the
evidence led was inconsistent, Ziswa having changed his case as he
went along. He now relies on evidence pointing to lessor figures
submitted by an otherwise unreliable accountant.
The
test to be applied in an application for absolution was stated by
GUBBAY CJ in United
Air Charterers v Jarman
1994 (2) ZLR 341 (S) 343B–C as:
“The
test in deciding an application for absolution from the instance is
well settled in this jurisdiction. A plaintiff will successfully
withstand such an application if, at the close of his case, there is
evidence upon which a court directing its mind reasonably to such
evidence, could or might (not should or ought to) find for him. See
Supreme
Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971
(1)
RLR (A) at 5D–E; Lourenco
v Raja Dry Cleaners & Steam Laundry (Pvt) Ltd 1984
(2) ZLR 151 (S) at 158B–E.”
The
plaintiff led evidence in this court that the parties entered into an
agreement in terms of which the defendants moved onto their farm on
certain terms. The evidence given is that, while in occupation the
defendants did not pay certain rentals due. They also unlawfully
removed some equipment and damaged some of it.
We
have been shown certain pictures of property allegedly damaged by the
defendants during the tenure of the lease. They would therefore want
to be paid damages.
In
addition we have taken evidence to the effect that the values of this
equipment have been depreciated to give rise to claims much less than
what is claimed in the summons.
Ms
Magundani
submitted that as the claim was not formally amended, absolution must
be granted.
It
is trite that pleadings, and in particular, a claim, may be amended
by evidence and that the court will make a finding based on that
evidence regarding the quantum of damages. The same applies to the
quantum of rental as being either 6 percent, 8 percent or 10 percent
of the gross turnover.
The
point was made by BEADLE CJ in Supreme
Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd
1971 (1) RLR (A) at 5H–I that:
“….rules
of procedure are made to ensure that justice is done between the
parties, and, so far as possible, courts should not allow rules of
procedure to be used to cause an injustice. If the defence is
something peculiarly within the knowledge of a defendant, and the
plaintiff has made out some case to answer, the plaintiff should not
lightly be deprived of his remedy without first hearing what
defendant has to say. A defendant who might be afraid to go into the
witness box should not be permitted to shelter behind the procedure
of absolution from the instance.”
See
also Munhuwa
v Mhukahuru Bus Services 1994
(2) ZLR 382 (H) 387B–C.
In
my view what was said in support of the application for absolution
may well succeed in discrediting the case for the plaintiff. It
however, cannot succeed in grounding an application for absolution.
For
these reasons I dismissed the application.
The
first defendant, Graeme Shaun Chadwick gave evidence. So did Richard
Banda. Chadwick has been growing tobacco for 20 years, has sat on the
Zimbabwe Tobacco Association board for six years, two years of which
he was its chairperson.
At
the material time he was growing tobacco on four farms namely Landos,
Ziswa, Kelvin and Gijima farms while residing at Landos Farm in
Headlands.
He
is an accomplished farmer indeed with loads of experience in that
field.
He
agreed that he took occupation of the farm in terms of a lease
agreement concluded with Ziswa and that a second JVA was also signed.
He
confirmed that the lease agreement signed on 9 January 2009 together
with its annotations contains the terms agreed upon by the parties
and governed their relationship.
In
particular he was liable to pay 6 percent of the gross turnover as
rent and although he later offered to increase that to 8 percent
following endless pressure from Ziswa who, at the time, was claiming
rent of $120,000-00 per year, that offer was not accepted. Therefore
no contract came into effect on it leaving the parties firmly bound
by the original agreement.
For
the 2011–12 cropping year, he had paid $21,000-00 to Ziswa as rent
although he realised about 135,000kgs of tobacco which were sold at
$3,67 per kg giving a gross turnover whose six percent is therefore
$29,808-00 of which only $21,000-000 was paid to Ziswa leaving a
balance of $8,808-00.
He
said that was eaten away by payments he made to Makoni Rural District
Council and Zimra which he was not obliged to pay.
He
did not elaborate and did not even give specific figures of those
payments, leaving us with a balance for the 2011-12 year of $7,315-20
still due if we accept his figures for that year.
Chadwick
confirmed that at the time of commencement of the lease an inventory
had been prepared, p92 of Exh 4, recording all the equipment found at
the farm. The inventory did not contain a description of the state of
the equipment at the time, most of which was badly worn out it would
not have made sense to obtain its value, given that it was almost
valueless.
The
inventory did not mean that he was taking over the equipment but was
a mere record of what was on the farm. In fact, Ziswa barred him and
his employees from touching some of his equipment like tractors
limiting them to only a few.
As
Ziswa remained residing at the farm throughout the tenure of the
lease, he had access to his equipment, used some of it like the
tractor, and would have known what was happening to it as opposed to
him who lived elsewhere.
Chadwick
stated that during the lease, he used mostly his own equipment. Of
Ziswa's equipment he only used a trailer (which he had to repair
and fit with his own wheels as it had none), a water cart, irrigation
equipment like pipes which again he had to repair and barns. The
barns were in an atrocious state when he took over with one of them
burnt to the ground. The sheds were dark and dingy and he had to
effect a lot of repairs including electrifying the barns.
He
denied damaging the barns as, in his view, they could not have been
in any worse condition when he took over.
By
the time that he left, although he had repaired the barns, they had
deteriorated again over the four years and one of them was supported
by only three poles as opposed to the eight poles shown on one of the
pictures in Exh 2.
When
he came, the reservoir had not been used for a very long time with no
water pump or any form of water generation. He had to repair it and
put it in a usable condition before use.
Chadwick
stated that before he came in Ziswa had another tenant at the farm
who left abruptly after contentious issues arose between them.
He
himself also rented a farm next to Ziswa's and remained his
neighbour even after termination, among other farms he operated.
He
would use some of his equipment from those other farms at Ziswa's
farm and would also move some equipment for use at these other farms
depending on activities and need throughout the year and vice versa.
There was never an intention to permanently remove any equipment.
He
outrightly denied vandalising any of Ziswa's equipment as he had no
reason to especially as he was to remain Ziswa's neighbour after
termination. Most of the equipment was in a terrible state, if it had
not been he would have used it.
Chadwick
denied being liable to pay rates to the local authority asserting
that the written lease agreement governing their relationship did not
provide for that. In any event he would have no reason to pay rates
for Ziswa's farm.
There
was a time when he paid the rates on Ziswa's behalf but this was to
bail him out after the RDC had attached his Isuzu motor vehicle for
sale in execution after Ziswa had failed to pay rates. Even then it
was agreed he would offset that from rent at the end of the year.
This explains the contents of his letter to Ziswa, p31 of Exh 1.
In
respect of the hailstorm claim, Chadwick agreed that they had a hail
strike during that year but stated that it was so minor that the
insurer advised him against making a claim as what would have been
paid was so insignificant it was not worth the trouble. He therefore
did not make a claim and did not receive anything meaning that there
was unfortunately nothing for Ziswa either.
He
stated that Ziswa was not entitled to claim the Centre Pivot and
generator because they are simply movable assets which he was
entitled to move with upon termination. In any event, Ziswa had
confirmed in a letter from his lawyers that he did not want the
Centre Pivot as it was not a long term development.
In
respect of fences and gates, he denied removing or damaging any
pointing out that although he did not regularly travel the perimeter
of the farm he was aware that the fences were in a bad state when he
moved in.
Most
of the fence had been stolen and what was left of it was on the
ground.
He
had taken the trouble to repair the fences when he briefly moved his
cattle onto the farm to an extent that Ziswa had thanked him at the
end for a job well done after inspecting the fence.
Chadwick
readily admitted failing to clear tobacco stalks before he left
although he insisted that seed beds were cleared. He said this was
caused by the acrimonious manner in which he was kicked out of the
farm which meant that there was no time to do so.
The
situation at the farm had been rendered untenable and dangerous after
Ziswa's son had pointed a firearm at his employees forcing them to
beat a hasty retreat without clearing the stalks.
He
did send a tractor to the farm to perform that exercise much later
but it was again denied entry.
We
are therefore left with the plaintiff's claim of $780-00 for hired
labour to remove the stalks and the EMA penalty, which although not
adding up, the defendant has to refund in some way.
On
the pictures showing openings on the barn walls with no cables and
dug out underground cables, he stated that every year he and his
workers would put the cables there when required for use. They would
remove them after use for safe storage to save them from being
stolen. He however does not know if they remained in storage at
termination.
He
rubbished the claim for maize saying it is not provided for in the
agreement which only required him to grow 40ha of maize.
Instead of doing so, he had increased tobacco production from 30ha to
40ha which meant that Ziswa would get more income from the proceeds
of the tobacco. However, out of the goodness of his heart and at
times after duress, he had given Ziswa maize the first and second
years at the farm. He had no obligation to do so but understood that
as a traditional man he needed it for his home.
On
seedlings, Chadwick said that he produced them on both Ziswa farm and
Kelvin farm and it is advisable to rotate seedlings between farms. He
had used seedlings from Ziswa farm at Kelvin farm and vice versa. As
is customary he would give away to neighbours seedlings that were
surplus to requirement for free. He never sold any seedlings. In all
his 20 years as a tobacco farmer he has never heard of a claim for
seedlings. It's simply untenable because it amounts to a double
claim. One would claim seedlings and then crop of it. The agreement
provided for payment of rent from the sale of the final product not
seedlings.
Under
cross examination, Chadwick admitted that there was an understanding
for maize which he said was merely an expression of gratitude not
enforceable by the plaintiffs.
He
admitted that he was not involved in the verification of assets
exercise carried out at termination preferring to leave that to his
employee who was to testify after him. He however asserted that all
the property that had been removed like trailer, water carts and
water pipes for use on another farms had been returned.
Chadwick
again readily admitted removing the electricity line stating that he
was happy to replace that line. He had obtained a quotation from ZESA
for the line in the sum of $36,000-00 (which he did not produce) as
opposed to the plaintiffs claim of $84,000-00.
Chadwick
was clearly a good and reliable witness. His demeanour was always
good. He readily made concessions where such was called for and
admitted liability where clearly he was liable. He struck me as one
who exudes confidence with a lot of knowledge in tobacco farming and
with a willingness to compensate fairly for what he benefited. Where
his evidence is to be contrasted with that of Ziswa, I would prefer
his.
Chadwick's
biggest undoing is that he appears to have run his activities at the
farm by remote control and was clearly not hands on. He left most of
the activities to his employees including the very important task of
verifying equipment at termination.
Richard
Banda was clearly unreliable. This is because he saw it fit to deny
even that which his employer had admitted. While Chadwick admitted
removing electricity cables from the barns and underground pipes,
Banda denied this insisting that all of them were left intact even
when there are pictures showing gapping holes.
While
Chadwick was quick to admit that at the time of termination there was
a barn being supported by three or four poles to prevent the wall
from falling, Banda was surprised to see poles in the picture. As far
as he was concerned, when they left the farm, there were no poles at
all.
He
however, agreed with Chadwick that at commencement of the lease most
of the equipment was not usable and that the parties had overlooked
to record the state of all the equipment and that most of it was
never used except for a few like water cart and irrigation pipes.
I
have stated that the first plaintiff maintains that their claim is
based on the 2 written agreements complementing each other which
contain a non-variation clause.
Writing
about the subject of restriction and non-variation clauses, the
learned author K.H. Christe, in his book Business
Law in Zimbabwe, ed 2, Juta & Co Ltd
at
p 107 said:
“The
parties may restrict their own power to vary or discharge their
contract by subsequent, and some such restriction is very desirable
in any contract between the parties, such as companies, that may be
represented by any one of a number of authorised agents, in order to
reduce the scope for argument about whether a formal written contract
has been subsequently varied or discharged. The restriction may be in
the form of a restriction clause providing that no subsequent
agreement between the parties on a specified topic (e.g. subletting,
cancellation) shall be valid unless it is in writing, or it may be in
the form of a non-variation clause providing that no variation of any
of the terms of the contract including the restriction clause, if
any, and the non-variation clause itself shall be valid unless it is
in writing.
After
some years of controversy the effect of such clauses was settled by
the South African Appellate Division in 1964 (SA
Centrale Ko-op Graanmaats Chappy Bpk v Shifren
1964 (4) SA 760 (A)). In the result effect will be given to a
restriction clause, but it may be cancelled or varied by express
agreement, formal or informal, unless entrenched by a non-variation
clause which may be cancelled or varied only by the formal method it
specifies.”
The
SA
Centrale Ko-op judgment (supra)
is in Afrikaans but its ratio
that
a non-variation clause could not be altered verbally was adopted by
this court in Fillanion
v Esat & Anor
HB
106/03.
In
my view the moment the plaintiffs decided to rely on the written
agreements of the parties, they brought themselves under the
provisions of those agreements including the non-variation clauses.
They
could not, in the same breath, seek to import further intricate
provisions, imagined or real not contained in the written agreement
which were purportedly conclude in breach of the formal method of
doing so contained in the non-variation clause.
They
simply cannot have it both ways or have their cake and eat it at the
same time.
I
therefore agree with Mr Rutanhira
for the defendants that any claim which is not provided for or is not
in terms of the written agreement should of necessity fail.
I
have already stated that there is no basis for holding a company
liable for the obligations of its director in terms of a written
agreement in which the company is not a party. It is certainly not
enough to say that the company is liable because it paid some of its
director's debts, or that it is the one which carried out farming
activities or that its letter head was used in correspondence.
Public
policy demands that men of full age and competent understanding
should have the liberty to contract and when they have so contracted
freely and voluntarily their contracts should be sacred and enforced
by courts of law; Printing
Registering Co v Sampson
19 EQ 462 at 465.
That
is the whole essence of the concept of sanctity of contract.
When
a party has so contracted with one party he cannot be allowed to drag
others with whom he has no contract into the contract merely because
they associate themselves with a party to it.
There
was simply no privity of contract between the plaintiffs and the
second defendant. It is a registered company with limited liability.
It
is a celebrated principle of our company law that upon registration a
company acquires a fictitious legal personality of its own and exists
separate from its members. Except in very limited circumstances the
liability of its members and directors cannot be visited upon it and
vice
versa.
Such
limited circumstances have not been shown to exist in the present
matter. Accordingly, I will not hesitate to dismiss all claims made
against the second defendant.
Coming
back to the claims against the first defendant, the plaintiffs on
their own abandoned claim (m) in the prayer namely, the sum of
$45,000-00 for loss of income and damages allegedly suffered as a
result of the termination for the agreement.
Of
the remaining claims, claim (b) for a refund of $1,980-00 paid to
Makoni Rural District Council, claim (c) for $5,500-00 hailstorm
insurance, claim (k) being $15,000-00 value of 50 metric tonnes of
maize, and claim (l) being $4,240-00 value of tobacco seedlings, are
based on alleged agreements falling outside of the letter of the
written covenant of the parties and are therefore hit by the
non-variation clause.
In
addition, I have already expressed my views about the evidence led to
try and prove those claims. It is woefully inadequate, unreliable and
at times contrived and clearly cannot on a balance of probabilities
sustain the claims.
They
will have to be dismissed.
The
plaintiffs have made a claim for rent arrears in the sum of
$64,160-00 for the 2011/12 farming season.
On
the evidence that has been led that claim has not been proved either,
except for what is apparently admitted by the first defendant, whose
evidence I have embraced as truthful.
Mr
Rutanhira
has also conceded that as the first defendant produced 135,000kgs of
tobacco during that season, taking into account the $21,000-00 paid
for that year, a sum of $8,808-00 remains outstanding.
It
should be paid.
Claim
(d) is for the sum of $67,506-00 as the replacement value of the
centre pivot and generator.
While
the written agreement provided for long term development to be
undertaken by the first defendant, I have pointed out that these
items did not fall under long term development. The claim cannot
succeed.
The
plaintiffs have also proved, on a balance of probabilities claim (i)
the $780-00 expended on clearing tobacco stalks which the first
defendant should have cleared before vacating the farm and ancillary
expenditure related thereto. My reservations about the failure to
balance the figures do not tip the scales against the plaintiffs.
That
claim should succeed.
The
claim for $187,707-00 as value of the property allegedly removed from
the farm and not returned (claim (e)), cannot succeed either.
This
is because the evidence that any property was removed and not
returned is either not there or unreliable.
The
same goes for claim (g) $7,600-00 for removed and/or damaged fences
and gates.
I
have cited the evidence of the investigating officer which is
contained in the crime docket (Exh 5) pointing to the fact that even
at a criminal level, there was nothing suggesting that any property
was removed and not returned.
That
claim cannot succeed.
That
leaves claims (f), $15,905-00 being value of damaged property, claim
(h), $15,008-00 to repair barns, and claim (j), $26,313-00 for
allegedly vandalised items.
In
respect of those claims we have an admission made by the first
defendant that he did remove the powerline from dam 1 to the other.
He offered to replace it insisting that it is valued at $36,000-00 in
terms of a quotation which he obtained from ZESA. He did not produce
the quotation in order to effectively refute the plaintiff's claim
for $84,000-00 to replace it.
If
the first defendant could have replaced it at less than that amount,
one wonders what was stopping him from doing so before the matter
came to court.
What
is clear is that the first defendant is liable in that regard and he
has failed in disproving the reduced value of $84,000-00 when there
is a quotation for $87,016-00.
The
claim must therefore succeed.
Regarding
the rest of the items allegedly damaged I am not satisfied that the
plaintiffs have proved the claims. In fact vandalism has not been
established at all.
The
police officer suggested in the crime docket that parts were being
removed on certain items. These were not specified and no value was
attached. The first plaintiff's evidence was unreliable while the
first defendant denied the allegations. More importantly there is no
evidence whatsoever of the condition and state of the equipment at
the time that the tenant moved leaving me with absolutely nothing to
gauge the extent of damage, if any, the value that could be attached
to it and if the plaintiffs suffered any loss given the evidence of
the first defendant which I have accepted that the bulk of the
equipment was in atrocious state and of little value.
It
had to be because Ziswa had been renting his farm prior to that and
not engaging in any farming. As to how long that property had been
lying there we are not told. If indeed it was in good condition an
expression which Ziswa was careful not to use preferring the
non-committal word; “usable” surely Ziswa would have been farming
instead of giving away the farm to others as he continues to do.
It
is one thing to list items located at the farm. It is quite another
for value to be attached to those items.
In
the end I am left with nothing with which I can find in favour of the
plaintiffs.
Mr
Uriri
for
the plaintiff conceded that the plaintiffs have not made a case for
the relief sought in 3 of the plaintiffs claims namely claim (c) for
$5,500-00 hailstorm insurance; claim (b) the refund of rates and
levies paid to Makoni Rural District Council in the sum of $1,980-00;
and claim (i) $780-00 for the removal of stalks.
I
have stated that claims (b) and (c) must fail along with others while
I am prepared to accept the evidence led on the removal of stalks on
a balance of probability.
In
my view absolution can only be granted in respect of claim (f)
relating to property that was damaged or had certain parts removed as
well as claim (h) for the repairs of tobacco barns. This is because I
have accepted the evidence of the investigating officer as contained
in the crime docket that some parts were removed. The evidence I have
accepted is insufficient to prove the plaintiffs claim on a balance
of probabilities simply because, it does not identify the property
that had parts removed, the value of those parts has not been proved
and the condition of the property at the time of hand over is
unknown.
If
the plaintiff were to patch up on that maybe he may live to fight
another day.
The
plaintiff s have only succeeded to the extent of a claim of
$92,808-00 out of a total claim of $456,699-00 which translates to a
20 per cent success. The costs to be awarded to them must therefore
reflect that ratio.
In
the result it is ordered that:
1.
The plaintiffs claims against the second defendant are hereby
dismissed with costs.
2.
The plaintiffs claim (a) against the first defendant succeeds only in
the sum of $8,808-00 which the first defendant is directed to pay to
the plaintiffs.
3.(a)
The plaintiffs claim (e) partially succeeds to the extent of the 4km
LTC electric cable while the rest is hereby dismissed.
(b)
The first defendant shall pay to the plaintiffs the sum of $84,000-00
being the replacement value of the 4km LTC electric cable removed
from the plaintiffs farm.
4.
The first defendant shall pay the plaintiffs the sum of $780-00 being
value of labour hired to clear tobacco stalks and related expenses.
5.
The plaintiffs claims (b), (c), (d), (f), (g), (j) and (l) are hereby
dismissed.
6.
Absolution from the instance is granted in respect of plaintiffs
claims (h) and (k).
7.
The plaintiffs shall pay 20 percent of the first defendant's costs
of suit.
Gasa
Nyamadzawo & Associates,
plaintiffs legal practitioners
Scanlen
& Holderness,
defendants legal practitioners
