The
first respondent is the registered owner of a motor vehicle Isuzu KB
250, registration number 524-884G. The applicant prays for an order
that the vehicle be released to him on the basis of an Agreement of
Sale he alleges was concluded in respect of the vehicle on 29 August
2008.
The
background to the dispute is as follows:
On
29 August 2008, the applicant visited the second respondent's
showroom and observed an Isuzu KB250 on display. It was apparently on
sale. Since he liked the vehicle he made enquiries regarding the
purchase price and other conditions attaching to the agreement. The
applicant avers that he dealt with Harris Kufunga and Shadreck
Dzapasi. The applicant avers in the founding affidavit that they are
directors of the second respondent. The price was agreed and settled
at $112,000= which had to be paid by RTGS. The applicant avers
further that he was informed by Harris Kufunga that he would have the
registration book and the number plates once payment had been
effected. An Agreement of Sale was then concluded. The applicant then
paid the purchase price and subsequently took delivery of the
vehicle.
On
14 November 2008 police officers from the Vehicle Theft Section
attended on him and advised him that the vehicle had been reported
stolen. He surrendered the vehicle to the police. Thereafter,
attempts to follow up the vehicle with the police raised his
suspicions as the vehicle was not parked at the police station as
would be expected. It was subsequently returned to the police station
after the intervention of his legal practitioners. He avers that he
is a bona
fide
purchaser and should not be inconvenienced by a dispute between the
first and second respondents.
I
find that the vehicle was indeed displayed in the second respondent's
showroom.
The
circumstances under which the vehicle came to be displayed in the
showroom, viewed from the explanation by the first respondent, raises
question marks. The first respondent's explanation is that one
Dzapasi had come to his residence on the evening of 29 August 2008
and had begged that the first respondent give him his vehicle as he
had a client who required an Isuzu. The first respondent avers that
he had been reluctant, initially, to surrender the vehicle to him;
firstly, because of the manner in which Dzapasi's uncle Shadreck
and Harris had treated him in the past. He did not elaborate on what
this treatment related to. Secondly, he averred that he had pointed
out to Dzapasi that it was night time and it would have been proper
if the transaction were conducted during the day. He states that had
had relented when Dzapasi gave him an assurance that the client
seeking the vehicle was Dzapasi's, and, further, that the second
respondent was not going to play a part in the sale. The first
respondent had been assured by Dzapasi that if the client was
satisfied with the vehicle, then the former would arrange for a
meeting to discuss the purchase price. He had therefore retained the
registration book and number plates on the understanding that the
purchase price and payment arrangements would be negotiated by
himself. They had not agreed on a purchase price with Dzapasi.
The
first respondent denied that he had authorized Harris Kufunga or
Shadreck Dzapasi to sell his vehicle. He further denied that Dzapasi
had authority to sell the vehicle. He stated that if he had
authorized the second respondent to sell the vehicle, he would have
been given a mandate form to sign signifying the agreement between
himself and the company for the disposal of the vehicle. This is the
procedure they had adopted when they sold a Toyota Hilux on his
behalf. He stated that the second respondent had defrauded him in
respect of the sale of the Hilux and he would not have been so naïve
as to take another vehicle to the second respondent to sell on his
behalf.
Whilst
he does not dispute the contention by the applicant that he may have
seen the vehicle in the second respondent's showroom he, the first
respondent, contends that if the applicant saw the vehicle on 29
August 2009 it must have been after 20:30 hours when he gave the
vehicle to Dzapasi. The first respondent states that the vehicle must
have been given to the applicant that night because when he visited
the second respondent's showroom the following day, the vehicle was
not there. He was not unduly worried by its absence because Dzapasi
had told him that he would not involve the second respondent or its
directors in the deal. He subsequently met Dzapasi and asked about
the whereabouts of the vehicle, which is/when Dzapasi asked if Harris
or Shadreck had not phoned him. That is when he heard about the
alleged sale.
He
reported the matter to the police, and, as a result, charges of theft
of motor vehicle were preferred against Harris and Shadreck on 14
November 2008. They persuaded him to drop the charges. When the
applicant refused to surrender the vehicle, he then made a report at
the vehicle theft in Southerton. He said he used to see the applicant
at the showroom when he was following up the issue of his vehicle but
the latter never let on that he had purchased the vehicle until the
first respondent had caused the arrest of Harris and Shadreck and it
then came to light that the applicant was the purported buyer of the
vehicle.
The
first respondent denies having sold the vehicle or authorized its
sale. The applicant has not filed an answering affidavit.
The
first issue that falls for determination is whether or not the first
respondent authorized the second respondent to sell the vehicle on
his behalf.
Earlier,
I commented that the explanation by the first respondent as to how
the vehicle was displayed raised eyebrows. I am fortified in this
belief by the contents of a letter attached to the opposing
affidavit. The letter was written by the legal practitioners of the
first respondent
and is dated 29 August 2008 and demand is made for payment in respect
of a Toyota Hilux allegedly sold by the second respondent on behalf
of the first respondent as far back as May 2008.
It
is too much of a coincidence that the letter is written on the same
day that the applicant alleges he obtained possession of the vehicle.
However, he who avers must prove.
The
applicant has not filed an answering affidavit and the averments in
the opposing affidavit, no matter how ridiculous they appear, have
not been denied by the applicant. They are therefore taken as having
been accepted as the truth of the events which transpired between the
applicant and the persons who allegedly sold him the vehicle.
The
first respondent, in opposing the application, questioned the lack of
a purchase price on the Agreement of Sale.
The
authority quoted by the applicant cannot be faulted in terms of the
principle as regards the price of an item being sold.
What
we have here, however, is that the applicant has cited the first
respondent and sought an order for specific performance against the
first respondent when he is not alleging an Agreement of Sale between
himself and the first respondent. He is bringing this action as the
owner of the vehicle when he did not get a transfer of the rights qua
owner from any of the parties he allegedly dealt.
Although
the first respondent has produced a registration book which shows
that the vehicle is registered in the name of the first respondent
the applicant has decided to ignore this factor. It needed an
explanation as the applicant does not state that he purchased the
vehicle from the first respondent.
The
applicant has omitted to cite the persons he purchased the vehicle
from as parties to this action. He has, instead, cited the first
respondent and yet he never at any stage dealt with him. He seeks
that the Agreement of Sale of 29 August 2009 be declared valid but
has failed to cite the alleged parties to the sale in this
application.
The
agreement is on the letter head of Leo Chris Auto but the seller in
the agreement is described as G R Chikoto. Chikoto is not the owner
nor has he been cited. In citing the first respondent he is therefore
non-suited as is clearly shown in his affidavit. He never dealt with
the first respondent as regards the sale of the vehicle.
In
the heads of argument filed on behalf of the applicant it is alleged,
for the first time, that the second respondent was acting as an agent
for the first respondent.
It
is argued, in the heads of argument, that he entered into the
agreement 'on the basis of agency'.
I
have not been educated on the precise meaning of that cryptic phrase.
I assume, however, that it is meant to convey that the second
respondent was the first respondent's agent in the sale of the
vehicle. If that was the basis of the claim by the applicant it
should have been pleaded from the outset and been averred in the
founding affidavit.
It
is trite that an applicant must make his case in the founding
affidavit and not in subsequent pleadings. This averment is not even
in an affidavit but in heads of argument.
Whether
or not the second respondent acted as an agent of the first
respondent would be a factual issue which can then be subjected to
scrutiny in accordance with established principles.
In
the instant case no factual basis was laid to allege that there was
in existence an agency relationship between the first and second
respondents. Thus, the contract that the applicant argues that he
entered into with the first respondent through the agency of the
second respondent has not been established. If the applicant's case
had been that he had entered into an agreement with the first
respondent, my view is that in the draft order he would have sought a
declaration as to the validity and enforceability of the alleged
agreement. Instead, in the draft order he seeks an order declaring
him to be the owner of the vehicle.
The
allegations of agency contained in the heads of argument appear to be
an after thought when it must have dawned on the applicant and his
legal practitioners that the only basis upon which an agreement could
be alleged against the first respondent was through agency.
I
am unable to find that there ever was a contract between the
applicant and the first respondent.
I
turn next to the payment of the purchase price.
According
to the applicant, the price had been agreed at $112,000= which had to
be paid through a Real Time Gross Settlement System. The applicant
averred that he had paid the money on 29 August 2008 and has attached
what he states is proof of such payment.
An
examination of the document in question shows that it is not an
extract from a Bank.
It
appears to be a computer generated entry from a company called
Laryscope Healt. It bears a date at the top of either 6 November 2008
or 11 June 2008. In addition, the payment allegedly made to the
second respondent was, according to the corresponding entry being
referred to by the applicant, paid to Broadstars. This is not payment
to the second respondent, and, if it was, the applicant has not seen
fit to explain how the payment effected to a different entity meant
that it was payment to the second respondent. The reality, therefore,
is that even if the applicant was given the benefit of doubt with
regards the Agreement of Sale, he has failed to prove that he paid
the purchase price in respect of the alleged sale.
Without
alleging, and proving, an Agreement of Sale between himself and the
first respondent the applicant cannot have any basis for claiming the
relief that he seeks from this court. The first respondent cannot be
made to surrender the registration book, number plates and spare keys
to the vehicle unless the applicant has averred, and proved, a
contract between himself and the first respondent in terms of which
the latter would have those obligations. No contract has been
alleged, or proved, on the papers before me, and, in my view, the
applicant is non suited.
In
the result I find that there is no merit in the application and I
therefore dismiss it with costs.
