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HB106-09 - CHURCHVILLE TRADING vs BEVERLY BUILDING SOCIETY

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Procedural Law-viz rules of evidence re evidence on behalf of a corporate entity iro institutional memory.
Procedural Law-viz rules of evidence re documentary evidence.
Damages-viz assessment and evidence of damages re quantification.
Procedural Law-viz rules of evidence re hearsay evidence.
Procedural Law-viz rules of evidence re heresy evidence.
Law of Property-viz lease agreement re damages to property of lessee.
Law of Property-viz agreement of lease re loss of lessee property. 
Procedural Law-viz rules of evidence re corroborative evidence.
Damages-viz assessment and evidence of damages re proof of claim.
Procedural Law-viz rules of evidence re findings of fact iro assessment of evidence.
Procedural Law-viz rules of evidence re onus iro burden of proof.
Procedural Law-viz rules of evidence re onus iro standard of proof.
Law of Delict-viz vicarious liability.
Damages-viz currency nominalism re functional currency iro S.I.199 of 2006.
Damages-viz currency nominalism re functional currency iro SI 199 of 2006.
Damages-viz currency nominalism re functional currency iro S.I.199/2006.
Damages-viz currency nominalism re functional currency iro SI 199/2006.
Damages-viz currency nominalism re functional currency iro S.I.199/06.
Damages-viz currency nominalism re functional currency iro SI 199/06.
Damages-viz currency nominalism re functional currency iro Statutory Instrument 199 of 2006.
Damages-viz currency nominalism re operational currency iro S.I.6 of 2009.
Banking Law-viz legal tender re S.I.199 of 2006.
Banking Law-viz official trading currency re S.I.6 of 2009.
Banking Law-viz official trading currency re SI 6 of 2009.
Banking Law-viz official trading currency re S.I.6/2009.
Banking Law-viz official trading currency re SI 6/2009.
Banking Law-viz official trading currency re S.I.6/09.
Banking Law-viz official trading currency re SI 6/09.
Banking Law-viz official trading currency re Statutory Instrument 6 of 2009.
Law of Contract-viz essential elements re intent iro tacit agreement.
Law of Contract-viz essential elements re animus contrahendi iro implied agreement.

Intent or Animus Contrahendi re: Deemed, Implied, Tacit, Unsigned Agreements or Informal Contracts

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.

Negligence or Dolus re: Liability iro Loss Arising from Commercial and Professional Negligence

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.

Lease Agreements re: Damages, Maintenance, Improvements, Negotiorum Gestio & Ownership of Fixtures and Fittings

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.

Damages re: Assessment and Evidence of Damages iro Proof of Claim and Quantification


In order to determine the prices of the items that went missing Rodrick Mahachi 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….,.

When it was put to Rodrick Mahachi 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 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….,.

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.

Hearsay Evidence, Res Gestae and Informants Not Presenting Corroborative Oral Evidence or Statements on Oath


In order to determine the prices of the items that went missing Rodrick Mahachi 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….,.

When it was put to Rodrick Mahachi 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.

Negligence or Dolus re: Liability iro Vicarious Liability

Although the court has found that the plaintiff failed to prove the value of the four items, 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.

Damages re: Currency Nominalism, Economic Inflationary Trends and the Revalorization of Damages, Claims or Court Orders

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.

Legal Tender, Effect of Demonetization of Currency and the Statutory Revalorization of Loans, Obligations or Deposits

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.


KAMOCHA J: The plaintiff's claim against the defendant was for:-

(a) The return from defendant all the property mentioned in paragraph 6 of its declaration;

(b) In the alternative, payment in the sum of $29,793,200,00 being the value of the property that 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, Muguti told him that he had to pay him for the partitions, carpets that he himself had fitted into the premises and other renovations. 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 Muguti told Ndlovu that Mahachi was going to occupy the place which had been advertised in the newspaper. Mahachi alleged that when he requested for a lease agreement from 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.

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 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 Ndlovu, confronted Tennyson who allegedly stated he suspected some employees of the defendant who had come from Harare to service 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 Ndlovu the two went to see a Mr Moyo the general manager of the defendant who promised to investigate the matter after 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. Mahachi gave 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. 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.

Ndlovu allegedly assured him that since Tennyson had said the missing items had been stolen by 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 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 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 Ndlovu and 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 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 plaintiff had made with A B 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 A B mining and paid rentals into A B 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, 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 plaintiff's property from the office officially rented by A B 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 strong room.

When 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 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 defendant's bundle of documents and Mahachi signed it. Mahachi complained that a lot of 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 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 Mahachi wanted the court to believe.

Under cross-examination the witness was emphatic that there was no lease agreement between plaintiff and defendant and reiterated that plaintiff paid rentals into A B 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 recommend 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 A B Mining whose lease with the defendant was still extant. He was emphatic that the plaintiff itself never went into a lease agreement with 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 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 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 defendant is that the plaintiff had no lease agreement with the defendant. This much was accepted by Mahachi. Consequently 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 A B 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 A B Mining and Equipment Supplies (Private) Limited was effected.

The evidence also established that despite the fact that 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 document 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 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 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 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 renders the amount claimed non-existent. No attempt was made by plaintiff to amend its claim in any way.

In the light of the foregoing findings I would dismiss the plaintiff's claim with costs.





Messrs Moyo & Nyoni plaintiff's legal practitioners

Gill Godlonton & Gerrans respondent's legal practitioners

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