KAMOCHA J: The
plaintiff's claim against the defendants was for;
“(a) An order
that the verbal partnership agreement between plaintiff and first defendant be
declared valid and binding on the first defendant;
(b) An
order that second defendant transfer the right, title and interest in the motor vehicle being a Mazda B2000
truck registration number 824-526Y to the joint names of plaintiff and first
defendant;
(c) An
order that the motor vehicle referred to in (b) above be sold to best advantage
and the net proceeds shared between plaintiff and first defendant in the ratio
of 73% to the plaintiff and the balance to first defendant;
(d) Alternatively
to (c) above, in the event that first, second and third defendants would have
disposed of the motor vehicle referred to in (b) above, an order that plaintiff
be compensated 73% of the current value of the motor vehicle;
(e) An
order that the agreement of sale between second and third defendants dated 8
August 2005 be declared void and of no force and effect; and
(f) An
order that first and third defendants pay costs of suit on an attorney-client
scale.”
When the parties attended a
pre-trial conference meeting they formulated the issues that they wanted to be
determined by the trial court thus:-
“(a) whether there was any verbal partnership agreement
between plaintiff and 1st defendant;
(b) If so,
whether such agreement related to the purchase of a Mazda B2000; and
(c) Did 1st
defendant receive any money from plaintiff, if so, how much and for what
purposes?”
At the commencement of the trial Mr Nyathi appearing for the plaintiff
announced that the 2nd and 3rd defendants had been
included in the agreement by the first defendant. Since those two defendants did not file any
opposing papers and did not appear for the hearing the plaintiff would proceed
against the 1st defendant in their absence and seek a default
judgment against the second and third defendants.
Patrick Sikhosana, the plaintiff,
gave viva voce evidence and said the
following. He was in the business of
buying and selling bricks from McDonald Bricks where the defendant was
employed. The plaintiff used to deal
with the 1st defendant in buying bricks and after dealing with him
for a long time there developed some friendship and trust between the two of
them. Plaintiff would give 1st
defendant some money to go and buy bricks for him from his place of employment
while he arranged for transport and paid the costs thereof. He also used to pay the 1st
defendant for his services. Apart from
buying and selling bricks plaintiff also sold cement and other building
materials.
The plaintiff alleged that on a
certain day he received a telephone call from the 1st defendant who
told him about a car which was being sold by someone who was leaving for South
Africa. The seller wanted $325 million
for the car. It was agreed that 1st
defendant should drive the car to plaintiff.
Defendant drove the vehicle to the plaintiff in the company of Sibangani
Ncube who remained sitting in the car as defendant and plaintiff discussed
about the car. The two allegedly agreed
to buy the vehicle. The verbal agreement
was that the two would contribute towards the purchase of the vehicle according
to their capabilities and after the sale of the vehicle they would share the
proceeds in the ratio of their contributions.
The plaintiff immediately
contributed a sum of $182 million which he gave to the 1st defendant
who was expected to come up with his share later. However, later that day 1st
defendant approached the plaintiff and advised him that he had failed to raise
any money. He then asked the plaintiff
to lend him some money which plaintiff did in the sum of $50 million. Plaintiff wrote a cheque in the 1st
defendant's name. The 1st
defendant was still unable to raise any money from anywhere else and returned
to the plaintiff asking for some more money.
The plaintiff wrote him another cheque for $13 million dollars. The 1st defendant later still
approached the plaintiff asking for more money which he alleged was for auction
charges. He later sent one Thabani
Ngwenya to collect the money. Plaintiff
wrote a cheque for $30 million in the name of Thabani Ngwenya. The cheque stubs were produced as exhibits 1,
2 and 3.
The vehicle went for sale at the
auction but found no takers. That being
the case plaintiff impressed it upon the first defendant that he had used money
that was meant for his business.
Therefore, the vehicle had to be sold quickly.
The two allegedly decided to flight
an advert in the Chronicle Newspaper.
The first defendant then took it upon himself to put the advert in the
Chronicle and Sunday News classified smalls.
He requested that 5 insertions be made on 9 January 2006, 10 January
2006, 11 January 2006, 12 January 2006 and 13 January 2006. The 1st defendant gave his
residential address as 1094 Old Luveve and his mobile phone number and that of
the plaintiff. The advert read, “B2000
For Sale; Cell 091 704 462/091 718 178”.
The advert in the Chronicle of 9 January 2006 was produced as exhibit
5. Prospective buyers responded to the
advert by phoning plaintiff on his mobile and he referred them to the 1st
defendant. Unbeknown to plaintiff his
partner was not selling the vehicle. He
only discovered that the vehicle was not for sale when he took a prospective
buyer to the 1st defendant.
The plaintiff expressed surprise at
the suggestion by the 1st defendant that he had lent him $190
million so that he could take his mother to hospital for treatment. He said that would have been too much money
for that purpose at that particular time.
Plaintiff told this court that all
in all he had given the first defendant a total of $275 million which
translated to 73% of the total sale price of the vehicle.
The plaintiff was cross-examined at
some length although some of the suggestions during cross-examination did not
make sense. For instance it was
suggested that when the plaintiff saw the 1st defendant driving the
vehicle which belonged to his brother, the plaintiff then suggested that they
should sell it so that they could raise money to buy bags of cement. The plaintiff's reply was that there was
never a stage when he did not have capital for his business. He never made such a suggestion. The suggestion does not make sense because
how could the plaintiff suggest that he and defendant should sell someone's car
to raise money to buy bags of cement unless they would be stealing the vehicle.
The plaintiff was emphatic that 1st
defendant was lying when it was put to him that he had demanded the $190 million
he had allegedly lent him for his mother's hospitalization.
Further, under cross-examination it
was suggested that the defendant was coerced by police to advertise the vehicle
in the press. The plaintiff's response
to the suggestion established that the suggestion was false. The vehicle was advertised in the press from
9 January 2006 to 13 January 2006. The
defendant was only handed over to the police after it was obvious that he was
lying about the sale of the vehicle.
That was only in June 2006 – 6 months after the adverts had been
inserted in the press. Plaintiff made it
clear under cross-examination that McDonald Bricks used to accept his cheques
if he did not have cash.
The plaintiff gave his evidence in a
clear and straight forward manner. He
was worth to be believed.
The defendant's story was that
plaintiff used to buy bricks from his (defendant's) place of work. The two eventually became friends and reposed
trust into each other to the extent that plaintiff would give defendant some money
to buy bricks from his work place.
Defendant testified that on one
occasion he wanted some money for his mother's medical treatment. He then went to borrow $190 million from the
plaintiff. When he asked how soon the
plaintiff wanted the money back he was told not to worry too much about that
since the money was to be used for his mother's medication and hospitalisation.
He said during those days he used to
drive his brother's Mazda B2000 vehicle.
Plaintiff used to see him driving it. And even knew that the vehicle
belonged to defendant's brother.
Despite the full knowledge that the
vehicle did not belong to the defendant, the plaintiff still approached
defendant and suggested that they should sell it so that they could buy two
loads of cement which would be sold at a profit. Part of the profit would be used to replace
the vehicle that was sold. He even
suggested that defendant's brother's vehicle should be sold for $1,2
billion. The defendant said he would not
accede to such a suggestion because the vehicle did not belong to him.
The defendant alleged that that did
not go down well with the plaintiff who immediately changed his attitude
towards him. He there and then demanded
back the $190 million he had lent the defendant. When the defendant allegedly went to give him
back his money he refused to accept it and queried why defendant brought the
capital without any interest. This,
according to the defendant, was the beginning of a lot of trouble for him.
He was summoned to Luveve Police
Station where he was subjected to painful treatment at the hands of a police
officer called Chikwanha who was a friend of the plaintiff. He was handed the plaintiff's affidavit
wherein he was alleged to have agreed to give plaintiff a sum of $600
million. He was then ordered to pay the
plaintiff the $600 million instead of the $190 million that he had actually
borrowed. He was told that if he was
unable to do so, he should sell the car to raise that money although he had
made it clear that the car did not belong to him. His explanation was not
accepted. Instead he was told to go and
advertise the car in the Chronicle Newspaper, failing which he would
disappear. Through fear defendant went
to put an advert in the press. Defendant
concluded that the plaintiff was bent on stealing his (defendant's) brother's
car.
When people responded to the adverts
he told them that the car was not being sold.
Eventually the plaintiff took a potential buyer to the defendant. It was only then that the defendant told the
plaintiff that the car was not for sale.
This detailed story of the defendant
is highly improbable and is in fact false.
In the first place he does not give details of the painful treatment he
was allegedly subjected to. Unless he
refers to the alleged threats that he would disappear if he did not advertise
the car in the press.
His suggestion that he was forced to
advertise the car in the press is also false because the vehicle was advertised
in the press 6 months before he was handed over to the police. He advertised the car in January 2006 but was
only handed over to the police in June 2006 after the plaintiff had discovered
that he was playing games about the sale of the said motor vehicle.
More importantly his whole story
about being forced to sell the car to raise $600 million to pay plaintiff and
to advertise in the press is a hopeless afterthought. He does not mention such material facts his
plea and synopsis of evidence. It only
features in his evidence in court which has no hesitation in rejecting it as
being palpably false.
The defendant was an unbridled
liar. He is not worth to be
believed. The court prefers the story of
the plaintiff to that of defendant wherever the two stories conflict. The defendant's witness did not take his
story any further. Instead his evidence
established that there was no auction and no auction charges. He confirmed that the $30 million was paid to
the defendant and has not yet been paid back to the plaintiff.
This court finds that plaintiff paid
defendant a total of $275 million representing 73% of the total sale price of
the said vehicle. Further the suggestion
that the plaintiff only gave him $190 million for his mother's hospitilisation
and medication is false and is hereby rejected.
The 1st defendant has caused
the plaintiff to incur unnecessary expenses.
He approached him and told him that the vehicle he was driving was being
sold by a person who was going to be leaving for South Africa. He went on to advertise the vehicle in the
press but when prospective buyers went to him, he, unbeknown to the plaintiff,
told them that the vehicle was in fact not for sale. He did not end there, but went on to attempt
to pull the wool over the court's eyes.
He deserves to pay punitive costs.
The 3rd defendant who was
alleged to have bought the vehicle was served with summons on 24 August 2006
and entered appearance to defend on 29 August 2006. He thereafter did not do anything further
about the matter. The plaintiff moved
that a default judgment against him be granted in favour of the plaintiff. I accede to that request and accordingly
grant a default judgment against him in favour of the plaintiff.
In the light of the foregoing the
order of this court is as follows.
It is ordered that the first and
third defendants jointly and severally the one paying the other to be absolved;
(a) Deliver in good condition to the
plaintiff the Mazda truck registration number 824-526Y at plaintiff's
residential address being number 5178 Emganwini, Bulawayo or to the plaintiff's
legal practitioners at Charter House parking bay, corner Leopold Takawira
Avenue and Fort Street, Bulawayo, so that the motor vehicle is sold to the best
advantage for the plaintiff to receive his share of 73% of the proceeds;
(b) In the event that the said motor vehicle
has been disposed of to a third party the first and third defendants shall pay
the plaintiff 73% of the current value of the motor vehicle;
(c) In the event that the said motor
vehicle has been disposed of and another has been purchased, the Deputy Sheriff,
Bulawayo is hereby authorized to seize such motor vehicle and place it in
plaintiff's custody and be sold to the best advantage so that the plaintiff
receives his share of 73% of the proceeds; and
(d) The first defendant pays the costs of
suit on an attorney and client scale.
Sansole & Senda, plaintiff's legal practitioners
Mashayamombe & Co, 1st
defendant's legal practitioners
