The
plaintiff's claim against the defendant was for:-
(a)
The return from the defendant all the property mentioned in paragraph
6 of its declaration;
(b)
In the alternative, payment in the sum of $29,793,200= being the
value of the property that the defendant's employees took
unlawfully;
(c)
Interest a tempore
morae
from the date of service of summons to date of full payment; and
(d)
Costs
of suit.
The
property that allegedly went missing was this:-
1.
1 x Pentium III Compaq D300 computer;
2.
1 x Samsung fax machine;
3.
4 x telephone receivers;
4.
2 x JH visitors' chairs;
5.
2 x swivel chairs;
6.
2 x executive secretary chairs;
7.
12 x lever arch files;
8.
12 x C3906 A toner cartridges;
9.
12 x 92A toner cartridges;
10.
18 x 96A toner cartridges;
11.
2 x 15A toner cartridges;
12.
8 x 26A ink cartridges;
13.
7 x 25A ink cartridges;
14.
14 x 29A ink cartridges;
15.
14 x 29A ink cartridges;
16.
18 x 49A ink cartridges;
17.
10 x A4 bond paper reams;
18.
1 x ceramic toilet pan;
19.
5 x 3 lever lock set;
20.
21 x Genicom ribbons;
21.
2 x boxes Eversharp pens;
22.
1 x Heavy duty paper punch; and
23.
4 x boxes staple pins.
The
parties attended a pre-trial-conference where they formulated the
issues to be determined by the trial court as follows:-
“1.
Whether or not defendant and plaintiff entered into a lease agreement
as alleged by plaintiff;
2.
The terms of the alleged lease agreement;
3.
Whether or not plaintiff took cession of certain lease between AB
Mining and defendant;
4.
The terms of any such cession;
5.
Whether or not plaintiff's occupation of the defendant's premises
was lawful;
6.
Whether or not defendant, through its employees, unlawfully removed
or stole plaintiff's property as set out at paragraph 6 of the
plaintiff's declaration; and
7.
The value of the property referred to above.”
The
plaintiff called one witness in an endeavour to prove its claim. Its
Managing Director, Mr Rodrick Mahachi (herein referred to as Mahachi)
told the court that in 2001 he was looking for office accommodation
when he saw an advert in the newspaper advertising Officer Number 8,
Beverly Building. He proceeded to the premises and saw a Mr Muguti
in Office Number 8, Third Floor. He was advised that office
accommodation was available but that the premises belonged to Beverly
Building Society. However, Mr Muguti told him that he had to pay him
for the partitions, carpets that he himself had fitted into the
premises and other renovations. Rodrick Mahachi was agreeable and
paid for that.
After
he had made the payment the two of then proceeded to Beverly Building
Society to see a Mr Ndlovu who was managing the 15th
Avenue branch of Beverly Building Society. When they were there Mr
Muguti told Mr Ndlovu that Mr Mahachi was going to occupy the place
which had been advertised in the newspaper. Mr Mahachi alleged that
when he requested for a lease agreement from Mr Ndlovu he was told
that it (the lease agreement) would come later since it would be
processed from Harare. He, however, was allegedly given an account
number for Beverly Building Society into which to deposit the
rentals.
Rodrick
Mahachi said the plaintiff immediately took occupation of the
premises and began to sell computers and computer cartridges. He
alleged that he had continued paying rentals for some time.
At
one stage he left to go to Mtshabezi Hospital where he had some work
to do. He then failed to pay his rental for about 2 or 3 months
prompting Beverly Building Society to lock up the premises. He
received a report to that effect from a young man he had left manning
the office. Following that report he returned to Bulawayo and found
that their office had indeed been locked up. The plaintiff's
property had been moved to another room. He attributed his failure to
pay rentals for 3 months to the fact that he had used the money on
the Mtshabezi project which he was anxious to complete.
He
then approached Mr Ndlovu and asked him to return the property. When
he went into where the property had been put he discovered some of
the property missing. Papers, envelopes and receipts were strewn all
over the floor. Some of them had been thrown into the dust bin. When
he confronted Mr Ndlovu about the missing property he (Ndlovu)
allegedly said that would be known by one Tennyson since he had been
present when the property was moved from the plaintiff's office to
another.
He,
in the company of Mr
Ndlovu,
confronted Tennyson who allegedly stated he suspected some employees
of the defendant who had come from Harare to service the defendant's
computers in Bulawayo. The employees were said to have been using the
office in which the plaintiff's property had been put. Tennyson
allegedly suspected them to have stolen the missing property.
Following
the suggestion made by Mr
Ndlovu
the two went to see a Mr Moyo, the General Manager of the defendant,
who promised to investigate the matter after Rodrick
Mahachi
had given him a list of the alleged missing property. The list of the
alleged missing property was filed of record at page 7 to 8 of the
plaintiff's bundle of documents. Rodrick
Mahachi
gave Mr
Moyo
a time frame within which to complete investigations but nothing was
forthcoming within that period prompting him to hand the matter to
his lawyers.
He
went with his lawyer to collect the remaining property which they
signed for. The signatories to the list were his lawyers, Tennyson,
Mr Ndlovu and the witness himself. According to the list filed of
record on page 5 to 6 of plaintiff's bundle of documents the
collection was done on 11 April 2003. Rodrick
Mahachi
claimed that the loss of property caused his Mtshabezi project to
collapse resulting in him failing to pay his employees.
Since
the lease agreement was still between the defendant and AB Mining he
was told to deposit the rentals into the account that AB Mining had
with Beverly Building Society which is what he did and kept copies of
his deposit slips.
Mr
Ndlovu
allegedly assured him that since Tennyson had said the missing items
had been stolen by the defendant's employees full investigations
would be carried out. He went on to say that the matter had been
referred to the defendant's lawyers. He concluded by saying from
then onwards the plaintiff should deal with him (Ndlovu).
In
order to determine the prices of the items that went missing he
obtained three quotations from reputable companies dealing in such
items. Matkan, which was the cheapest of the three, gave a total
value of US$37,810=80; Computer Shop's total value was US$40,497=25
and Bexley gave a total of US$44,378=50. The quotations were filed of
record on pages 7, 8 and 9 of the plaintiff's bundle of documents.
Under
cross-examination, Rodrick
Mahachi
was unable to say how much he had paid as rentals. He agreed that the
arrangement to lease the premises was between him and Muguti. His
lease agreement with the defendant would only be processed at the end
of the AB Mining lease.
The
witness said he did not report the matter to the police because Mr
Ndlovu
and Mr
Moyo
had assured him that full investigations would be carried out and he
would be given a feed-back; which he did not get. When it was put to
him that his quotations were hearsay his reply was that he asked for
three quotations and was given the ones filed of record.
The
court observes that the quotations are indeed inadmissible hearsay as
their compilers were not called to testify in court.
The
plaintiff closed its case after Rodrick Mahachi's testimony.
The
defendant called two witnesses who were its former employees. The
first was Tennyson Ndiweni who was employed as the defendant's
Branch Controller of the 15th
Avenue and Main Street branches in Bulawayo. All communication from
Head Office went through him.
His
evidence was that he was not directly involved in the lease agreement
between the defendant and AB Mining as that was the responsibility of
one Goodness Ndlovu, the valuer, who had since left the defendant and
was in Botswana.
When
A B Mining was unable to pay its rentals it had to look for someone
to occupy its office during the currency of the lease between it and
the defendant. It found the plaintiff. Apart from the arrangement the
plaintiff had made with AB Mining, which was represented by one
Muguti, the plaintiff did not get a lease from the defendant. All it
did was to move into the offices that were being leased by AB mining
and paid rentals into AB Mining account.
The
witness said the plaintiff took occupation of the offices in July
2001, but, by September 2001 was already unable to keep pace with its
payments for rentals. No rentals were paid from October 2001 onwards.
When
the defendant made efforts to find out why rentals were not being
paid, Mr Mahachi, who was described as the proprietor of the
plaintiff, could not be located. The employees of the plaintiff also
professed ignorance of his whereabouts. Their belief was that he had
gone to Botswana since he was not communicating with them.
Faced
with the non-payment of rentals by the plaintiff, whose proprietor
was nowhere to be found, Mr Ndlovu instructed the witness to instruct
the Chief Messenger to remove the plaintiff's property from the
office officially rented by AB Mining. The Chief Messenger, with a
team of other six messengers, did the removal commencing after lunch
to the end of business that same day.
The
witness himself never handled the plaintiff's property. He was
emphatic that he had no chance of stealing the property. He explained
that it was not possible for him to do so as he had no keys to the
building and did not even have the combination to the strong room
door. As far as the witness was concerned that strong-room was a very
secure place. He went so far as stating that it was impossible for
anyone to remove property from there; the reason being that whoever
has the key to the building does not have the key to the strongroom.
When
Mr Mahachi eventually surfaced and approached the witness in
connection with the property, he referred him to Learnad Moyo, the
Administrator.
The
witness averred that he next saw Mr Mahachi on the day he was handed
the plaintiff's property from the strong room. The property was
listed as it came out of the strong room. The original list was filed
of record at pages 10 to 12 of the defendant's bundle of documents
and Rodrick
Mahachi
signed it. Mr
Mahachi
complained that a lot of the plaintiff's property was missing and
he was going to seek legal recourse. The witness, however, did not
believe that whatever was missing, if any, could have gone missing
from the strong room.
The
witness revealed that Mr
Mahachi
had attempted to inflate the number of items that he claimed had gone
missing. He alleged that 8 chairs had gone missing but a search in
the building conducted in his presence established that he in fact
had sold 4 chairs to two companies that used to share office space
with him. The witness held a view that the list of items that
allegedly went missing was far shorter than what Mr
Mahachi
wanted the court to believe.
Under
cross-examination, the witness was emphatic that there was no lease
agreement between the plaintiff and the defendant and reiterated that
the plaintiff paid rentals into AB Mining account during the currency
of its lease.
His
story was supported by Learnad Nkonzo Moyo, a former employee of the
defendant who used to be the Administrative Manager for Matabeleland.
When outlining the procedure of how the defendant leases out premises
he said when premises fall vacant the practice was to advertise them.
Interested parties would submit their applications. The successful
applicant would be recommended for a lease agreement in writing. The
proposed lease agreement would then be forwarded to Head Office in
Harare where the final agreement was prepared within three or four
days; hence, the successful applicant would get his lease agreement
immediately after that.
The
above procedure did not take place in respect of the plaintiff. Mr
Moyo first learnt about the plaintiff's presence in the defendant's
premises when it had already taken occupation. He also learnt that
the plaintiff was occupying the office with the blessing of AB Mining
whose lease with the defendant was still extant. He was emphatic that
the plaintiff itself never went into a lease agreement with the
defendant.
The
witness said he did not think that the plaintiff's claim was of any
significance. He thought the claim involved little items. He did not
get any report about the defendant's employees stealing the
property. Disciplinary action would have been taken if that had
happened.
Under
cross-examination, it was suggested to the witness that the defendant
should have warned the plaintiff that the office would be locked due
to its non-payment of rentals. His reply was to the effect that Mr
Mahachi was regrettably nowhere to be found and there were reports
that he could have been somewhere in Botswana. He gave the same
answer when it was put to him that the defendant should have taken
legal action on discovering that the plaintiff was an illegal tenant.
What
comes out clearly from the evidence adduced by the defendant is that
the plaintiff had no lease agreement with the defendant. This much
was accepted by Mr Mahachi. Consequently, the defendant had no legal
relationship with the defendant and its occupation of the premises
was merely tolerated on the basis that it would fulfill a role
previously fulfilled by AB Mining and Equipment Supplies (Private)
Limited.
The
plaintiff dismally failed to fulfill that role by failing to pay the
rentals.
Further,
no formal cession of the rights and obligations of AB Mining and
Equipment Supplies (Private) Limited was effected.
The
evidence also established that despite the fact that Mr Mahachi tried
to inflate the list of the items that he claimed to have gone missing
Tennyson's report, on page 14 of the defendant's bundle of
documents,
shows only four items could not be found on collection from the
strong room i.e;
(1)
Compaq CPU only;
(2)
Samsung fax machine;
(3)
Telephone receiver x 2; and
(4)
Ceramic toilet pan (broken).
The
plaintiff failed to prove the values of the above items. It attempted
to do so through inadmissible hearsay evidence of quotations whose
compilers did not testify in court.
Although
the court has found that the plaintiff failed to prove the value of
the four items supra
it, however, finds that the defendant's employees were responsible
for their going missing. The employees, who were a team of the
defendant's messengers, were specifically instructed to remove the
items from the office used by the
plaintiff to the strong room. They were certainly acting within the
scope of their employment. Tennyson's report reflects that they had
been removed from upstairs the previous year but had been found
missing on collection from the strong room. See report on page 14 of
the defendant's bundle of documents. Regrettably, the value of the
missing items has not been established. The items were no longer in
the possession of the defendant. It would therefore be unable to
return them to the
plaintiff.
In
the alternative, the plaintiff claimed payment of the sum of
$29,793,200= being the value of the property that allegedly went
missing. That value, however, is inclusive of items of property for
which the plaintiff failed to adduce evidence specifying such items.
In any event, the change of the Zimbabwe currency, as published in
Statutory Instruments 199/2006 to 6/2009, S.I.199 of 2006 to S.I.6 of
2009, renders the amount claimed non-existent. No attempt was made by
the plaintiff to amend its claim in any way.
In
the light of the foregoing findings I would dismiss the plaintiff's
claim with costs.
