REPLACEMENT OR COMPENSATION OF THE PLAINTIFF'S PROPERTY

Because of the distortions brought by dollarization it was never going to be easy for the plaintiff to try and give an accurate value of her property which was unlawfully sold by the defendant.

The plaintiff must, however, be commended for having taken the trouble of trying to find comparable prices or values of her property. The plaintiff visited some departmental shops like Meikles and Barbours collating possible replacement values of her property. In this regard, the plaintiff produced two sets of quotations from Barbours and Meikles Departmental Store whose total value adds up to US$28,454=.

Throughout the proceedings, I did not hear the defendant making the slightest attempt to challenge the quotations or values given by the plaintiff. If anything, the thrust of the defendant's representative was merely to say that his company was justified in selling the plaintiff's property in the manner it did, something which this court finds to have been wrongful, unlawful and distasteful.

The uncontested value of the plaintiff's property adds up to US$28,454= but in her summons she claimed US$25,000=.

I am more inclined to grant to the plaintiff the figure in her summons as a fair estimation of her unlawfully sold property as opposed to the US$28,454= because there was no attempt by her counsel to have her claim amended to accord with her evidence at the close of the proceedings….,.

Consequently, I order as follows:

(1) That judgment be and is hereby granted in favour of the plaintiff in the sum of US$25,000= being the replacement value of her property wrongfully and unlawfully sold by the defendant without the plaintiff's knowledge and/or authorization.

(2) ..,.

(3) That both payments attract interest at the prescribed rate from the date of judgment (18 October 2012) to date of payment in full.

In any event, I should add that the relief sought by the plaintiff is questionable on the further ground that the amount it originally claimed in March 2009 was US$28,690=. This is more than double the amount reflected in the repair quotations that it subsequently obtained in November 2009.

The plaintiff gave evidence which confirmed that he indeed hired a motor vehicle when his was still under repairs. As indicated at pages 7 (the invoice from Glory Car Hire) and 14 (letter from P Chiyangwa, Chairman of Glory Car Hire dated 22 March 2013), of exhibit 1, he confirmed that he paid the sum of US$14,850= for the Mercedes Benz he had hired from Glory Car Hire. The letter from Glory Car Hire read as follows;

“1. We refer to the above matter and Mr Chidawanyika's request for a written confirmation.

2. Please be advised that:

2.1. Mr Ennocent Chidawanyika hired a Mercedes Benz C200 K motor vehicle from Glory Care Hire;

2.2. Pursuant to the car hire he was charged USD10,227= for 30 days but due to excess mileage the Bill became USD15,283=30.

2.3. However, due to the fact that Mr Chidawanyika paid in cash the bill was discounted and reduced to USD14,850=.

3. We confirm that Mr Chidawanyika hired the motor vehicle, we also confirm that Mr Chidawanyika paid the sum USD14,850=.

4. For the avoidance of doubt we put it on record that Glory Car Hire had a contract with Mr Chidawanyika and not any other third party. Further, Mr Chidawanyika and not any third party paid USD14,850= in cash.”

I must hasten to point out that the letter from Glory Car Hire was at the request of the second defendant who indicated before me at the second hearing of this matter on 22 March 2013, that once that letter, confirming payment, was received, the matter would be settled. I duly postponed the matter to allow for the production of that letter. However, the letter did not lead to a settlement of the matter and so the trial proceeded…..,.

The second defendant called one witness, Princess Razaro, a Legal Officer in the employ of the second defendant. I must say I found her to be an honest witness. Her evidence, in my view, was totally truthful and unbiased. Indeed, as summarized by the plaintiff's counsel in the Heads of Argument, the import of her evidence was:-

“It is common cause that there was an accident involving Mr Chidawanyika and an employee of ZETDC. It is also common cause that we never disputed paying for damages to plaintiff's car which we have already done. Only issue for dispute is for damages for an alleged car hire and that is also not in dispute, the payment of the care hire is not in dispute but payment or proof that plaintiff has paid.” 

She went further to state that the second defendant's Internal Auditors were not willing to accept the endorsement of “paid” on the tax invoice as proof of payment. They would, instead, she said, have accepted a proper receipt or an affidavit from Glory Car Hire….,.

I found, to a large extent, that, considered together with Princess Razaro's evidence, the second defendant's closing submissions seemingly supported the plaintiff's case. In its introduction, in the closing submissions, the second defendant states:-

“1. The issue for determination in this matter is narrow, simple and quite straight forward, and this is the issue captured as number 2 in the parties Joint Pre-Trial Conference Minute being;

'Whether or not plaintiff paid the sum of USD14,850= for the hired vehicle'.

2. Issue No.1 naturally fell away after 2^nd defendant's main witness made certain concessions, and issue No.3 is dependent on the finding to be made about issue No.2.”…,.

I fully agree with the above submission and as such there is no point at all in delving into matters already admitted. The second respondent, however, goes on to say:

“The 2^nd defendant's witness, Ms Princess Razaro, was able to highlight to the honourable court the sole paramount reason why the proof of payment furnished did not meet the satisfaction of 2^nd defendant's Finance Department. She indicated to the honourable court that plaintiff's initial proof of payment, namely, the invoice was not credible because it was just an invoice issued out for the purpose of confirming how much would be required from him. The 2^nd proof of payment, namely, Mr Philip Chiyangwa's letter was also not credible because it was not a document made under oath.”…,.

My assessment of the second defendant's position is that, whilst it accepts that payment was made, its Internal Audit Department has its own specific requirements or demands. As already stated, there is no dispute relating to the accident and what happened thereafter - except proof of payment. However, my finding is that through the tax invoice endorsed “paid” and confirmed by P Chiyangwa's letter of 22 March 2013, written at the second defendant's request, the plaintiff has produced enough documentary evidence to support his claim. I do not read the position of the second defendant's Internal Audit Department as saying the plaintiff did not pay.

It is interesting to note that, right up to the time the second defendant closed its case, it was still saying; “If P. Chiyangwa's letter was in the form of an affidavit we would have accepted same as proof of payment.” Surely that cannot be allowed to stand in the way of the plaintiff's claim. The second defendant had ample time from the time of being served with the letter to ask for an affidavit. It was the second defendant that had initially requested for a letter. That ample time continued to exist from the time the trial commenced up to the time closing submissions were made. One sees no reason why P. Chiyangwa would have refused to depose to an affidavit in support of his letter of 22 March 2013 in order to satisfy the second defendant's Internal Audit Department. The second defendant's conduct, or attitude, clearly confirms that, it is, without justification, merely refusing to face its accepted liability. It has no defence to the claim.

In view of the foregoing, my finding is that the plaintiff paid Glory Car Hire the sum of US$14,850=. The plaintiff's claim should therefore succeed. I therefore order as follows:-

IT IS ORDERED THAT:

1. The 2^nd defendant shall pay the plaintiff the sum of US$14,850= with interest at the prescribed rate per annum from 25 March 2011; and

2. The 2^nd defendant shall pay costs of suit.

In preparation for trial, the plaintiff filed a synopsis of evidence in which he said he would lead evidence to show that on the 13^th day of July 2010, at the intersection of 3^rd Avenue and Herbert Chitepo Street, in Bulawayo, the first defendant's haulage truck rammed into the plaintiff's vehicle and that the accident was due to the negligence of the second defendant. He particularized the negligence of the second defendant. He said his vehicle was damaged beyond repair and he suffered loss of income. 

He was claiming ZAR587,500=.

When the trial commenced, the plaintiff's driver was called first. He narrated how the accident occurred at the intersection of Herbert Chitepo and 3^rd Avenue. He said the defendant's vehicle approached from his right side, ignored a Give Way sign and rammed into the plaintiff's vehicle which he was driving. In answer to questions put to him, he said as an employee he was not in a position to give details about the correct identity of the plaintiff in the papers whether it is a company or an individual.

He said he did not know about the value of the vehicle or the possible costs of its repair. He was therefore unable to answer any questions concerning the value of the damages claimed by the plaintiff.

This gap in the evidence of the plaintiff's case required the direct evidence of the plaintiff. 

Order 46 Rule 408 of the High Court Rules provides that in the absence of any agreement, in writing, between the legal practitioners of all the parties, and subject to these Rules, the witnesses at the trial of any action shall be examined viva voce and in open court, but the court may, at any time, for sufficient reasons, order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the court may think reasonable, or that any witness, whose attendance in court ought for some sufficient cause to be dispensed with, be examined by interrogatories or otherwise before a Commissioner or Examiner.

In this case, no such arrangement was made, and no explanation was given for not calling the plaintiff…..,.

Other documents filed in this case showed that the vehicle was registered in the name of Teddy Mkandla. On seeking the correct identity of the plaintiff counsel for the defendants was unable to get any clarification in the absence of the plaintiff.

When the plaintiff's case was closed the matter could have ended there. However, the defendants submitted that instead of absolution from the instance they preferred to lead their evidence so that the matter is brought to finality. Evidence of the defendant was then led and the first defendant persisted in his denial of liability.

At the end of the hearing, it was clear that the plaintiff, who had undertaken, in his synopsis of evidence filed, to lead evidence to prove his damages, had not led such evidence. No reason was given for not calling him. The plaintiff therefore failed to prosecute his claim as required by the Rules of Court which require that he give viva voce evidence and be cross-examined. He was not present even to explain the query about the correct ownership of the damaged vehicle.

The law requires that a party who is claiming damages must prove his damages in court. A party cannot send documents to court and leave it to the court to determine the claim for him. What he stated in the summons must be substantiated in open court by his viva voce evidence….,.

The plaintiff in a claim for damages has to prove the damages. He cannot leave it to the court to work out damages for him. Only the plaintiff could give evidence as to the value of the vehicle when it was purchased, the value of the vehicle at the time of the accident, or what it would cost him to repair it.

The plaintiff's legal practitioner called two (2) expert witnesses to testify on the reasons why the vehicle could not be repaired. Their evidence concerned the damage to the vehicle and that trying to prepare it for subsequent use as a public service vehicle would render it dangerous to passengers. None of these witnesses could give evidence as to the value of the vehicle prior to the accident and the loss suffered by the plaintiff for the loss of its use. All they could do was to estimate the cost of similar vehicles - evidence which remained unsatisfactory. This evidence could not be relied on as proof of the damages suffered by the plaintiff….,.

In this case, the case ended without the plaintiff's evidence, and, as such, the plaintiff has not proved his case.

I note that the plaintiff alleges that as a result of the assault she now suffers from permanent and recurrent migraine headaches. 

The plaintiff submitted three quotations in support of his estimation of repair costs….,.

The defendant, having focused on trying to prove that it was the plaintiff who was driving the Camry, failed to attend to the issue of the quantum of damages claimed by the plaintiff. There was no challenge to the damages and I do not find the quotations to be exorbitant. 

The papers attached consist mainly of quotations and delivery notes. Most of the invoices attached do not indicate what the materials would be used for. For example, the invoice for tobacco and topsoil. It is not clear how these invoices arise.

This is not proof of what work was quoted or what work was done. The improvements claimed have not been quantified. Most of these improvements were carried out in the Zimbabwe dollar era and were not expressed in US dollars…., It does not appear that the applicant has shown that bit has effected improvements for which he is entitled to compensation.

WAS THE VALUE OF LOSS THE FULL AMOUNT OF APPELLANT'S DAMAGES?

A plaintiff who sues for damages is required to prove his damages. A court will not presume damages in the absence of proof of such damages by a plaintiff.

However, the principle that a plaintiff must prove his damages is not a strict rule; what is required of a plaintiff is to place before the court all the evidence that is reasonably available to him. Before this principle can come into effect it must be established that the plaintiff has suffered some damages and that all that has to be established is the quantum of those damages. This was stated by SELKE J in the following terms:

“But to make such dicta into inflexible rules applicable in every instance without regard to the circumstances of the parties in respect of the availability of the evidence, or to the precise nature of the claim, it seems to me, results not infrequently in injustice. There must be many types of claims due to breaches of contract which do not admit, for various reasons, of strict or detailed proof in terms of so much money. For example, loss of business, especially in relation to the future, cf. Bower v Sparks, Young and Farmers' Meat Industries Ltd 1936 NPD 1 at p 23.” See Bowman v Stanford 1950 (2) SA 210 (D)…,.

In the court a quo, the respondent conceded that the appellant had deposited a sufficient sum to enable the Bank to submit the application to the Reserve Bank of Zimbabwe for the consideration of allocation of foreign currency under the scheme. It was never suggested that the appellant had failed to establish that it had suffered loss or that the amount that had been deposited in local currency was insufficient to qualify for the sum being sought from the Reserve Bank of Zimbabwe under the scheme.

This is not a case where an exact quantification of the damages allegedly suffered by the plaintiff is possible.

In casu, there exists a real chance that if the Bank had submitted the plaintiff's application to the Reserve Bank of Zimbabwe before the expiry of the deadline, then, in the event that the Reserve Bank of Zimbabwe had paid to the claimants monies under the retention scheme the appellant stood to be paid in United States dollars for the sum, or part thereof, deposited by it into the Bank's account and which payment would have been forwarded to the Reserve Bank of Zimbabwe under the scheme.

Recent authorities from the courts in South Africa suggest that there is need to differentiate between the onus imposed on a plaintiff regarding causation and quantum. In De Klerk v Absa Bank Ltd & Ors SALR 2003 (4) 315, SCHULTZ JA quoted with approval the remarks of STUART-SMITH LJ in Allied Maples Group Ltd v Simmons & Simmons (A Firm) [1995] 1WLR 1602 (CA) to the following effect:

“In my judgment, the plaintiff must prove as a matter of causation that he has a real or substantial chance as opposed to a speculative one. If he succeeds in doing so, the evaluation of the chance is part of the assessment of the quantum of damage, the range lying somewhere between something that just qualifies as real or substantial on the one hand and near certainty on the other. I do not think that it is helpful to seek to lay down, in percentage terms, what the lower and upper ends of the bracket should be.”…,.

It is an accepted principle of our law that some types of damage are difficult to estimate and the fact that they cannot be assessed with certainty or precision will not relieve the wrongdoer of the necessity of paying damages for his breach of duty. The principle is not a novel one and decided authorities have gone so far as to state that a court, doing the best it can with insufficient material, may have to form conclusions on matters on which there is no evidence and to make allowance for contingencies - even to the extent of making a pure guess. See Esso Standard SA (Pty) Ltd v Katz 1981 (1) SA 964.

It is also accepted, in principle, that a court will come to a plaintiff's aid in case of uncertainty and make an estimate in his favour provided that he has led the best evidence available to him. See Enslin v Meyer 1960 (4) SA 520. Facts may also be proved not only by direct evidence but by inference, and a man's intentions may be proved through the observations of others. In Arendse v Maher 1936 TPD 162 GREENBERG J made the following pertinent remarks:

“It remains, therefore, for the Court, with the very scanty material at hand, to try and assess the damage. We are asked to make bricks without straw, and if the result is inadequate then it is a disadvantage which the person who should have put proper material before the Court should suffer. The means that I have at hand are extremely unsatisfactory, but I propose to rely, to some extent, on the figures appearing from the decision in Chisholm's case and to be guided by those figures.”

The existence of a contingency which is dependant upon the volition of a third person does not necessarily render the damages for breach of contract incapable of assessment. See Chaplin v Hicks [1911] 2 K.B 786…, per LJ FLETCHER MOULTON.  At p795, he commented further:

“Then the learned counsel takes up a more hopeful position. He says that the damages are difficult to assess because it is impossible to say that the plaintiff would have obtained any prize. This is the only point of importance left for our consideration. Is expulsion from a limited class of competitors an injury? To my mind there can be only one answer to that question; it is an injury and may be a very substantial one. Therefore, the plaintiff starts with an unchallenged case of injury, and the damages given in respect of it should be equivalent to the loss. But it is said that the damages cannot be arrived at because it is impossible to estimate the quantum of the reasonable probability of the plaintiff's being a prize-winner. I think that, where it is clear that there has been an actual loss resulting from the breach of contract, which it is difficult to estimate in money; it is for the jury to do their best to estimate; it is not necessary that there should be an absolute measure of damages in each case. There are, no doubt, well-settled rules as to the measure of damages in certain cases, but such accepted rules are only applicable where the breach is one that frequently occurs.”

And later, at 769:

“Is there any such rule, if it existed, as that where the result of a contract depends on the volition of an independent party, the law shuts its eyes to the wrong and says that there are no damages? Such a rule, if it existed, would work great wrong….,.

…,. Where, by contract, a man has a right to belong to a limited class of competitors, he is possessed of something of value, and it is the duty of the jury to estimate the pecuniary value of that advantage if it is taken from him.”

In Goedhals v Graaff-Reinet Municipality 1955 (3) SA 482, HALL J…, said;

“The general principle upon which damages are to be assessed was laid in Victoria Falls and Transvaal and Power Co. Ltd v Consolidated Langlaate Mines Ltd 1915 A.D. at p 22, where it is stated that, so far as possible, the person injured must be placed in the same position as he would have been if the contract had been performed. On this principle, it appears to me that the question which the trial court would have to decide in order to assess damages in this case is what would the opportunity of finding water be worth to the plaintiff under the circumstances of the case?”

Similar remarks were issued by MASON J in Trichardt v Van der Linde 1916 T.P.D 149…, to the following effect:

“Now, it is quite clear, in this case, that there was a breach of the contract. It is quite clear that the object of the contract was that the horse should be raced and win prizes. It is quite clear that the breach defeated the very object of the contract, and the loss of the chance is the actual and necessary result of the breach. Now, the matter was considered in the case of Watson v Ambergate Railway Co (15 Jur. 448). There, the two judges differ as to whether the value of a chance should be estimated for the purpose of damages, and Mayne on Damages (6^th Ed. P 60), in commenting on the decision, accepted the view of the judge who thought that a chance was not such an element of damages as could be estimated and allowed for in a Court of Justice. But, all these authorities were considered in the case of Chaplin v Hicks (1911, 2 K.B.D. 786), and there it was held that - I think it was in a beauty competition - the loss of such a chance was an element of damage which the jury were entitled to estimate the value of, and the jury in that case awarded BP100= damages, which was upheld on appeal. In that case, the Court said there was no question that the loss of the chance was the necessary result of the breach of the contract, and that though it might be difficult to estimate what the value of a chance may be, it was the duty of the jury to endeavour to do so, and if they awarded some reasonable sum, the Court would not interfere.”

This Court accepts that no detailed evidence was placed before the court a quo on the legal implication attaching to the publication of the list of participating farmers by the Reserve Bank of Zimbabwe. The scheme, from the evidence before the court a quo, was introduced at the instance of the Reserve Bank of Zimbabwe to encourage farmers to grow tobacco as a way of boosting the foreign currency earnings of the country as a whole. It was a scheme under which the country was the major beneficiary, in that following upon the sale of the tobacco crop the farmer would be paid in the local currency with the foreign currency being retained by the Reserve Bank of Zimbabwe. The scheme, however, presented an avenue through which farmers could then obtain a benefit to access foreign currency in cash and kind, the latter through the access to scarce farming inputs. Thus, at the end of it all, the benefit would accrue to the country and the individual farmer.

It is correct that the appellant suffered damages, but, on the facts presented to the court a quo, it is almost an impossible task for a court to make an assessment of the monetary damages due to the appellant. In Ebrahim v Pittman N.O. 1995 (1) ZLR 176 H…, BARTLETT J quoted with approval the remarks of BERMAN J in Aarons Whale Rock Trust v Murray & Roberts Ltd & Anor 1992 (1) SA 652 (C)…, to the following effect:

“Where damages can be assessed with exact mathematical precision, a plaintiff is expected to adduce sufficient evidence to meet this requirement. Where, as is the case here, this cannot be done, the plaintiff must lead such evidence as is available to it (but of adequate sufficiency) so as to enable the court to quantify his damage to make an appropriate award in his favour. The court must not be faced with an exercise in guesswork; what is required of a plaintiff is that he should put before the court enough evidence from which it can, albeit with difficulty, compensate him by an award of money as a fair approximation of his mathematically unquantifiable loss…,.”

The appellant has urged this Court to make the assessment as the evidence presented before the trial court was the best evidence available to the appellant.

The issue, however, is whether the learned judge in the court a quo had sufficient evidence before him to enable him to arrive at a quantification of the amount of damages that the appellant had suffered due to the failure of the respondent to transmit the application to the Reserve Bank of Zimbabwe.

The purpose of delictual damages is to place the injured party, as far as money can do, in the same position he was in had the delict not occurred. It is not the purpose of damages to enrich him. The damages may not be established with mathematical exactitude or precision. In Esso Standard SA (Pty) Ltd v Katz 1981 (1) SA 964 (AD) it was noted that in some types of cases damages are difficult to estimate, but that just because they cannot be assessed with certainty or precision will not relieve the wrongdoer of the obligation to pay for his breach. The plaintiff is entitled, and required, to adduce the best evidence reasonably available to him. In Hersman v Shapiro & Co 1926 TPD 367, STRATFORD J stated as follows….,;

On the quantum of damages, the plaintiff gave her evidence well, supported with documentary proof, where possible. 

The evidence revealed more damage than what she claimed in the summons.

“Allow me a minute”, as Alan Paton would say, while I make the point that I share the indignation of counsel for the defendants about the outrageous amount of damages being claimed.

Quite often, in recent years, litigants of this country have taken to coming up with these outlandish claims for damages, even for the slightest of infractions, which are completely divorced from the economic realities of this country and are detached from existing precedence and legal realities of our jurisdiction. It is the kind of habit which legal practitioners must take responsibility for encouraging as ultimately it is them who advise litigants and draft the processes filed in court. Legal practitioners engaged by litigants to represent them in this court and to draft court processes on their behalf should take care in drafting such court papers and claims and should apply their minds to the task reposed upon them. After all, they are paid to provide such service and it is the height of irresponsibility to come up with outrageous claims which not only fail to ventilate the relief the litigant seeks but also to conform with existing precedence on the subject. Legal practitioners should be taken seriously by the courts for it is serious business that we transact in these courts and not local drama, nor is it the television series “Carson's Law” or “LA Law”….,.

The allowance for future contingencies can never be determined with accuracy. This was well put by MARGO J in Goodall v President Insurance Co Ltd 1978 (1) SA 389 (H)…, when he said:-

“In the assessment of a proper allowance for contingencies, arbitrary considerations must inevitably play a part, for the art of science or foretelling the future, so confidently practiced by ancient prophets and soothsayers and by modern authors of a certain type of almanack is not so numbered among the qualifications for judicial service.”

The invoices making up the plaintiff's claim, as set out in the summons, were produced…,.

The remedial works to the floors, electrics, glassware, doors, locks, and the like, were carried out through Dickie & Kunaka. The contract had been 'supply and fix'. Supporting invoices and receipts for the payments made were produced. They largely matched the plaintiff's claim….,.

The cost of repairs was supported by detailed invoices and receipts. Nothing was shown to have been incurred unnecessarily.

Where a court is being called upon to assess the quantum of monetary damage sustained, sufficient evidence to support the claims should be placed before it. In Hershman v Shapiro & Co 1926 TPD 36…, the court remarked thus;

“…, monetary damage having been suffered, it is necessary for the court to assess the amount and make the best use it can of the evidence before it. There are cases where the assessment by the court is very little more than an estimate; but even so, if it is certain that pecuniary damage has been suffered, the court is bound to award damages.....”

The invoice does not indicate which vehicle was to be repaired, as it does not reflect any registration or other details identifying it as the plaintiff's vehicle….,. The date of the invoice (17 September 2008) predates the day when the search was conducted, and, in any event, does not tally with the date stamped on the invoice (17 November 2008).

The plaintiff was unable to explain these discrepancies….,.

Most importantly, he was unable to produce any receipts to demonstrate that the repairs in question had in fact been paid for. This failure is inexplicable given that the plaintiff's schedule of documents…, specifically lists “invoices and receipts for vehicle repairs.”

The amounts claimed by the plaintiff are not comparable to any decided cases. The case authorities cited by her counsel are not helpful at all.

A useful authority on the principles to apply in such claims is the case of Minister of Defence and Another v Jackson 1990 (2) ZLR 1 (SC). In that case GUBBAY JA stated the following…, -

“It must be recognised that translating personal injuries into money is equating the incommensurable; money cannot replace a physical frame that has been permanently injured. The task, therefore, of assessing damages for personal injury is one of the most perplexing a court has to discharge. This notwithstanding, certain broad principles have been laid down which govern the obligation. These are:

(1) General damages are not a penalty but compensation. The award is designed to compensate the victim and not to punish the wrongdoer.

(2) Compensation must be so assessed as to place the injured party, as far as possible, in the position he would have occupied if the wrongful act causing him the injury had not been committed. See Union Government v Warnecke 1911 AD 651 at 665.

(3) Since no scales exist by which pain and suffering can be measured, the quantum of compensation to be awarded can only be determined by the broadest general considerations. See Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 at 199.

(4) The court is entitled, and it has the duty, to heed the effect its decision may have upon the course of awards in the future. See Sigournay v Gillbanks 1960 (2) SA 552 (A) at 555H.

(5) The fall in the value of money is a factor which should be taken into account in terms of purchasing power, 'but not with such an adherence to mathematics as may lead to an unreasonable result', per SCHREINER JA in Sigournay's case, supra, at 556C. See also Southern Insurance Association Ltd v Bailey NO 1984 (1) SA 98 (A) at 116B-D; Ngwenya v Mafuka SC18-89 (not reported) at p8 of the cyclostyled copy.

(6) No regard is to be had to the subjective value of money to the injured person, for the award of damages for pain and suffering cannot depend upon, or vary, according to whether he be a millionaire or a pauper. See Radebe v Hough 1949 (1) SA 380 (A) at 386 E.

(7) Awards must reflect the state of economic development and current economic conditions of the country. See Mair's case, supra, at 29H; Sadomba v Unity Insurance Co Ltd & Anor 1978 RLR 262 (G) at 270F; 1978 (3) SA 1094 (R) at 1097C. Minister of Home Affairs v Allan SC76-86 (not yet reported) at p12 of the cyclostyled copy. They should tend towards conservatism lest some injustice be done to the defendant. See Bay Passenger Transport Ltd v Franzen 1975 (1) SA 269 (A) at 274H.

(8) For that reason, reference to awards made by the English and South African Courts may be an inappropriate guide since conditions in those jurisdictions, both political and economic, are so different.”

As regards the claim for devaluation of the immovable property, I found this astounding as I did not hear the applicant to deny that for about two years after the property came under her administration, the property was vacant and subject to adverse effects associated with a property left un-occupied for such a long time.

In her calculation of the devaluation, the applicant did not seem to take account of her own role. Indeed, even the cause of action for such a claim was not clear. If at all she was seeking damages for any wrongful act it was for her to prove the nature and extent of such damages.

This was not done.

The plaintiff produced three quotations, exhibit(s) 9A, 9B and 9C, in support of the US$100 average price for each tyre.

The plaintiff's claim is in the sum of $238,253= for damages suffered as a result of the defendant's negligence….,.

The defendant also put into issue the quantum of damages suffered by the plaintiff….,.

The plaintiff engaged the Environmental Management Authority which referred him to the Forestry Commission. An official from the Forestry Commission attended on the farm and compiled a report on the extent of the damages. He also brought in Mighty Flow Irrigation Company which produced a report on the cost of replacing the irrigation equipment….,.

It was the plaintiff's evidence that the lemon plantation was on 12 hectares with a total number of 9,360 trees aged between 16 and 17 years. He testified that all trees were destroyed and the only way forward was to remove the old trees and plant new ones. He put the cost of clearing land at $4,680= and the total cost of planting new trees at $3,000=, that is labour only. The trees cost $5= each making a total sum of $46,650=. The price was as provided for in the report by the Forestry Commission. He said that the trees would take up to five years to harvesting and he wanted to be compensated for loss of income for those five years. He put his seasonal yield at 500 tonnes at a selling price of $6= per kg, making a total sum of $30,000= per season. As proof of yield he submitted a packing summary from Citifresh which showed that in 2003 he supplied Citifresh with 379,069.1kgs of lemons. He also produced a receipt from Mazoe Citrus Estate which showed that on 3 July 2009 he supplied Mazoe Citrus with 15,560kgs of lemons.

Under cross-examination he agreed he did not have proof of production for 2009, 2010 and 2011. His explanation was that he had relocated and could not find his papers. He also admitted he was not present when the fire started and only visited the scene the following day. He did not get three quotations for the irrigation equipment and for the replacement of trees. He based his claims on single quotations.

Mrs Chebanga testified that she is employed by the Forest Commission as a District Forest Extension Officer. She knows the plaintiff as a farmer in Mazoe District. She testified that on 11 October 2011 she received a complaint from the plaintiff that his plantation had been burnt by fire. She visited the farm to assess the damage. The plantation was a lemon plantation covering 12 hectares. She established the source of fire as having been caused by the defendant's cables. On being asked how she had come to such a conclusion she testified that she had been informed by the plaintiff.

She established that the whole plantation had been burnt. She counted the number of trees and found 9,360. She prepared a report which was admitted into evidence as exhibit 6.

In the report she put the number of trees destroyed at 9,360 with a replacement value of $46,800= at $5 each. The plantation was producing 500 tonnes per season sold at 6c per kg a total value of $30,000=.

She said she got the price of $5 from the Forest Commission nursery. It was her testimony that the Forest Commission Nursery is the cheapest on the market as it is a non-profit making organisation whose aim is to encourage farmers to grow trees. She also said in terms of section 78(b) of the Forestry Act [Chapter 19:05] she is regarded as a fire expert.

However, this witness did not fare well under cross-examination.

She was rude and evasive. If she was not biased her testimony would have greatly assisted the court. I was convinced her report was a duplication of the plaintiff's story as narrated to her. She even put the yield at 500 tonnes per hectare without any formula of arriving at the figure. I do not therefore intend to place much reliance on her testimony. She failed to answer reasonably to questions posed to her under cross-examination; for example, she was told that the plaintiff had admitted that he was not present on the day in question and she refused to accept that. Her unreasonableness led me to discard her evidence as invaluable.

The last witness for the plaintiff was David Bvunzawabaya from Mighty Flow Irrigation (Pvt) Ltd. He testified that he visited the farm to assess the irrigation equipment damaged by the fire. He testified that the cost of replacing the irrigation equipment was $33,773=. Under cross-examination he admitted that he did not prepare the quotation submitted in court. He produced his own report that he prepared after visiting the farm which said he observed that some trees were burnt whilst others were not burnt. He failed to defend the quotation of $33,773=....,.

The plaintiff…, admitted he did not get three quotations for the irrigation equipment and for the replacement of trees. He based his claims on single quotations….,.

Under the common law, and as a protection against loss of value of a judgment, where a litigant has suffered a loss that can properly be expressed in foreign currency the court can enter judgment in foreign currency - but payment must be made in local currency converted as at the date of payment.

See Makwindi Oil Procurement (Pvt) Ltd v National Oil Company of Zimbabwe 1988 (2) ZLR 482 (SC)…, where the court said that:

“Fluctuations in world currencies justify the acceptance of the rule not only that a court order may be expressed in units of foreign currency, but also that the amount of the foreign currency is to be converted into local currency at the date when leave is given to enforce the judgment. Justice requires that a plaintiff should not suffer by reason of devaluation in the value of the currency between the date on which the defendant should have met his obligation and the date of actual payment or the date of enforcement of the judgment. Since execution cannot be levied in foreign currency, there must be a conversion into local currency for this limited purpose and the rate to be applied is that obtaining at the date of enforcement.”

See also Standard Chartered Bank of Canada v Nedperm Bank Ltd 1994 (4) SA 747 (A)…, where it was stated that;

“…, the damages to be awarded in this case should be expressed in US dollars. It is implicit in any order to this effect that the judgment debt may be satisfied in South Africa by payment in the foreign currency or by payment of its equivalent in Rand when paid.”

The applicant filed a court application before this court on 8 May 2011 seeking an order for the amendment of the judgment handed down by this court on 23 January 2008 under case number HC4252/2001. The order of January 2008 reads as follows:

“Judgment is entered in favor of the plaintiff as follows:

That Defendant pays;

(a) BP63,750 as replacement value for his damaged vehicle.

(b) 83,717=09 for medical expenses.

(c) BP1,800,000 for loss of income.

(d) $3.50 for towing charges.

(e) BP12,000,000 for car hire charges.

(f) $2,000,000 for pain and suffering.

(g) $850,000 for disability.

(h) $1,000,000 for future medical expenses.

(i) Costs of suit.”

The order sought by the applicant in this matter relates to the Zimbabwe dollar component of that order. The applicant seeks an order that the judgment of this Honorable Court, in case number HC4252/2001, dated 23 January 2008 be amended as follows:-

“That the Defendant pays to the Plaintiff:

1. USD$2,790=60 for medical expenses.

2. USD$116=66 for towing charges.

3. USD$66,666=67 for pain and suffering.

4. USD$28,333=30 for disability.

5. USD$66,666=67 for future medical expenses.

6. Interest at the prescribed rate of 5% per annum calculated from the date of judgment to the date of payment.

7. Costs of suit.”…,.

The 'once and for all rule' is a common law rule that stipulates that a plaintiff must claim, in a single action, compensation for the damage he has already suffered and the prospective loss which he reasonably expects to suffer in future. See Oslo Land Co Ltd v Union Government 1938 AD 584…,.; and Custom Credit Corporation (Pty) Ltd v Shembe 1972 (3) SA 462 (A)…,.

In his book, The Law of Delict, PROFESSOR BOBERG sums up the common law position as follows:

“A single wrongful act gives rise to a cause of action for all damage, past and future, that it causes. This means that a plaintiff cannot claim compensation piecemeal for his various losses as they occur: he must sue 'once and for all' for the whole of his damage, seeking redress not only for the harm he has already suffered (actual or accrued loss) but also for the harm he expects to suffer in the future (prospective loss). And if he succeeds he will generally be awarded damages in a lump sum, payable immediately, in respect of both past and future losses.”

See also Elvins v Shield Insurance Co Ltd 1980 (2) SA 814 (A)…, where the court said:

“The 'once and for all' rule applies especially to common law actions for damages in delict, though it has also been applied to claims for damages for breach of contract….,. Expressed in relation to delictual claims, the rule is to the effect that in general a plaintiff must claim, in one action, all damages…,. This rule appears to have been introduced into our practice from English Law. Its introduction and the manner of its application by our courts have been subject to criticism…, but it is a well entrenched rule. Its purpose is to prevent a multiplicity of actions based upon a single cause of action to ensure that there is an end to litigation.”

In Dube v Banana 1998 (2) ZLR 92 (HC)…, the law in Zimbabwe was stated in the following terms:

“Our law recognizes the 'once and for all rule' which states that a plaintiff, when suing for damages, must sue for all his damages in a single action, both for loss suffered and for prospective loss…,. In my opinion, the once and for all rule should be modified. I consider this can best be done by an Act of Parliament rather than by 'judge made law', which is, by its very nature, haphazard and piecemeal. The Law Development Commission of Zimbabwe issued a report entitled Report No.43: 'Once and for all rule in claims for damages', in which, as the title suggests, it examined the rule and in which it made recommendations for its reform.”

Parliament has not intervened to change the law.

This court accepts as a correct application of the law to the circumstances of this case that the applicant has had his once and for all right to claim damages for the injuries which he sustained in the accident. He elected to litigate for those damages in 2008. He claimed those damages partly in Zimbabwe currency and partly in Botswana Pula. He received the awards he sought. He had a further opportunity to recast his case before the Supreme Court, in October 2010, when the appeal was heard, which was after dollarization. He chose not to do so, or to seek the leave of the Supreme Court to have the Zimbabwe dollar component of the judgment 'converted' to a currency that he could use. The Supreme Court, on application for its leave, would have had an opportunity for 'judge-made law' to decide whether to remit the matter back to this court for evidence to be adduced on the question of the 'conversion' of the Zimbabwe dollar component of the judgment to a currency of the applicant's choice.

The applicant cannot now come back to this court seeking to change the judgment given to him. The applicant has already had his day in court he cannot now come for a second judgment arising out of the same circumstances as the first.

Res judicata is a rule that matters which have already been adjudicated upon between the same parties cannot be adjudicated again. It is a consequence of the 'once and for all rule'.

In Union Wine Ltd v Snell and Co Ltd 1990 (2) SA 189 (C)…, the Judge said:

“Although it is not clear from the cases whether the 'once and for all' rule is just a manifestation of the exceptio rei judicatae or whether it has a wider range than the latter, it is settled practice in South Africa that where a cause of action gives rise to more than one remedy a plaintiff who pursues one of those remedies and has obtained a judgment thereupon can be met with a plea of res judicata if he should institute a second action to pursue one of the other remedies.”

It is common cause that the parties before this court are the same as those before the court in 2008. It is common cause that the cause of action is the same and that damages are being sought pursuant to that cause of action. In the January 2008 judgment this court decided that the applicant had suffered damages which required to be redressed by the payment of Zimbabwe currency. This court accepts that all those issues are now res judicata and cannot be re-opened….,.

In the circumstances of this case, where 'accident damages' were assessed and awarded as special damages and general damages, under the law of delict, it is my view that there is no factual or legal basis, in the papers filed of record, on which this court can 'convert' a 2008 judgment made in Zimbabwe currency to United States dollars.

On 21 December 1999 at the 12km peg along the Rusape to Nyanga road a horrific collision involving the respondent and an employee of the appellant occurred. The former sustained frightful injuries. Sadly, the appellant's employee succumbed to injuries occasioned from the collision.

The following facts are common cause.

The respondent sued for and was awarded damages by the High Court on 23 January 2008. The damages so awarded were the following:

(i) BP (Botswana Pula) 63,750 for the cost of replacement of a vehicle;

(ii) BP83,717=90 in respect of medical expenses.

(iii) BP1,800,000 for loss of income.

(iv) Z$3,500 towing charges.

(v) BP12,000,000 car hire charges.

(vi) Z$2,000,000 shock, pain and suffering.

(vii) Z$850,000 disability damages.

(viii) Z$1,000,000 future medical expenses.

The appellant was dissatisfied with the judgment and appealed to this Court against the finding of vicarious liability as well as the amounts awarded in Botswana Pula (BP). There was no appeal against the amounts denominated in the Zimbabwe dollar. On 28 February 2012 this Court, in the case of The Cold Chain (Pvt) Ltd v Robson Makoni SC09-12, issued an order in the following terms:

“IT IS ORDERED THAT:

1. The application to adduce further evidence is dismissed with costs.

2. The appeal against the finding of vicarious liability is dismissed.

3. The appeals in respect of the value of the replacement motor vehicle, vehicle hire charges, and lost income are allowed and the order of the court a quo is altered in the following respects:

(i) In paragraph (a), Botswana Pula 40,000 is substituted for BP63,000;

(ii) In paragraph (c), Botswana Pula 616,200 is substituted for BP1,800,000;

(iii) In paragraph (e), Botswana Pula 6,000 is substituted for BP12,000,000.

4. There will be no order as to costs of appeal.

It is common cause that the appellant paid the amounts denominated in Botswana Pula. In respect of the other sums it tendered payment in Zimbabwe dollar. The respondent rejected the tender. He contended that due to the erosion of the currency it had become moribund due to disuse, and, as such, he had no use for it. He could not tender the same for payment to anyone.

An impasse ensued which resulted in the respondent filing an application with the High Court for the conversion to United States Dollars of the sums awarded to him in the local currency.

The High Court found that it had no jurisdiction to convert the amounts thus awarded to United States dollars. It said:

“In conclusion, this Court's opinion on the issue of currency nominalism, in the circumstances of this case, is that, while on the whole this Court has inherent jurisdiction to ensure that the process of execution is neither abused nor unfair, it does not have jurisdiction to rewrite an order in the manner sought by the applicant. I hold the considered view that this Court cannot revalue an order for purpose of execution.”

In short, it declined jurisdiction.

The respondent was aggrieved and appealed to this Court and was successful. In Robson Makoni v The Cold Chain t/a Sea Harvest SC55-16, this Court said the following:

“The principles enunciated in the case of Dube (supra) demonstrate that the once and for all rule is not applicable to the facts of this case because the applicant is not seeking further damages for the injuries he sustained in the accident. He is seeking the conversion of the damages he was awarded by the High Court in 2008 in Zimbabwean dollars to United States dollars. The appellant's application is intended to facilitate the enforcement of the order of damages in Zimbabwean dollars. The once and for all rule prevents a plaintiff from seeking further damages from a cause of action previously sued on. It does not prevent him from seeking the currency adjustment of an order already granted by the court.

Courts have authority to adjust their orders but under prescribed circumstances. Those circumstances depend mainly on whether or not the court will be functus officio.

The court a quo erred by relying on the once and for all rule to hold that it had no jurisdiction to hear the appellant's application. The application was for the conversion of already granted Zimbabwean dollar awards to United States dollars, which both parties agree have not yet been paid as there is a dispute as to how payment should be made. It was thus premised on a subsequent dispute over how damages awarded by the High Court in 2008 should be enforced.

The court's awards had been made uncertain by the dollarization of the Zimbabwean economy.

The appellant could not have reasonably foreseen that the Zimbabwe currency was going to be rendered moribund by the introduction of the United States dollar as usable currency in Zimbabwe.”

The court therefore allowed the appeal and issued an order in the following terms:

“Accordingly, it is ordered as follows;

1. The appeal is allowed with costs.

2. The decision of the court a quo is set aside.

3. The matter is remitted back to the court a quo for a hearing and determination on the merits.”

The defendant has applied for absolution from the instance at the close of the plaintiff's case.

The brief background facts of this matter are the following.

On 20 May 2004, the plaintiff caused summons and declaration to be issued out against the defendant claiming:

(1) Z$248,292=38 past medical expenses.

(2) Z$1,292,460= for future medical expenses.

(3) Z$6,000,000= for psychological injury, loss of general health and loss of amenities of life.

(4) Z$5,000,000= contumelia, humiliation and defamation.

(5) Z$115,136,000= for loss of pension benefit.

(6) Z$411,300,774= for loss of earning.

(7) Interest on all the above at the prescribed rate from the date of service of summons to date of full payment.

(8) Costs of suit.

According to the plaintiff, the claims arose from an incident which had occurred in about September 2000 where it was alleged that the plaintiff, as a train conductor, had charged a passenger an incorrect and lesser figure and converted the sum of Z$108= to his own use. The plaintiff was charged with misconduct and initially dismissed. The dismissal was later reversed and the plaintiff was retired on medical grounds.

The plaintiff then claimed damages under the heads referred to above.

The trial took a chequered route characterised by delays in prosecuting the plaintiff's claim, change of legal practitioners, and attempts at amendments. On 20 April 2015, after calling two witnesses, the plaintiff closed his case prompting the above-mentioned application by the defendant.

The application is premised on the provisions of Order 49 Rule 437(1) of the High Court Rules, 1971.

The requirements of granting of the absolution from the instance at the close of the plaintiff's case are now settled. The application is granted where the plaintiff's evidence is insufficient for a finding to be made against the defendant. The defendant must show that after the plaintiff has led all evidence in his case, the plaintiff's burden of proof has not been discharged. In other words, the defendant must show that there is no prospect that the plaintiff's case might succeed.

Sibanda v Chikumba HH92-14; Manyange v Mpofu & Ors HH162-11; and HERBSTEIN and Van WINSEN, The Civil Practice of the Supreme Court of South Africa (4^th Ed)…,.

The test on whether the court will grant absolution from the instance at the close of the plaintiff's case was laid down in Gascoyne v Paul Hunter 1917 TPD 170 and was accepted as a proper formulation of the test in our law in Supreme Service Station (1969) (Pvt) Ltd v Goodridge 1971 (1) RLR (A) and its thus:

“Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff?”

See also Dube v Dube 2008 (1) ZLR (H); Delta Beverages v Rusito SC42-13; Standard Chartered Finance (Zimbabwe) Ltd v Georgias & Anor 1998 (2) ZLR 547; and Bailey N.O. v Trinity Engineering (Pvt) Ltd 2002 (2) ZLR 484.

In Supreme Service Station (1969) (Pvt) Ltd v Goodridge 1971 (1) RLR (A)…, BEADLE CJ stated:

“I must stress that the rules of procedure are meant to ensue justice is done between the parties, and, so far as it is possible, court should not allow rules of procedure to be used to cause an injustice. If the defence is something peculiarly within the knowledge of a defendant…, the plaintiff should not lightly be deprived of his remedy without first hearing what the defendant has to say. A defendant who might be afraid to go into the witness box should not be permitted to shelter behind the procedure of absolution from the instance.”

This formulation has been accepted in Dube v Dube 2008 (1) ZLR (H); Standard Chartered Finance (Zimbabwe) Ltd v Georgias & Anor 1998 (2) ZLR 547; Delta Beverages v Rutsito SC42-13; and Bailey N.O. v Trinity Engineering (Pvt) Ltd 2002 (2) ZLR 484.

Though used in a different context, the observation by MALABA DCJ in Mawarire v Mugabe & Ors CC01-13 is apposite when he said;

“…,. It is better to let people have access to the fountain of justice where they fail for reasons of their folly than have them blame the gatekeepers.”

In order to defeat an application for absolution from the instance at this stage of the trial, the threshold the plaintiff must cross is low. In Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403…, it was set out as follows:

“When absolution from the instance is sought at the close of the plaintiff's case, the test to be applied is not whether the evidence led by the plaintiff establishes what would be required to be established, but whether there is evidence upon which a court, applying its mind reasonably to such evidence, could or might find for the plaintiff.”

Explaining this in ATW De Klerk v ABSA Bank Ltd & Ors SCA 176-02 SCHULTZ JA said:

“This implies that a plaintiff has to make out a prima facie case…, in the sense that there is evidence relating to all the elements of the claim…,.”

The defendant attacks the plaintiff's case on the ground that the plaintiff's claim was denominated in Zimbabwe Dollars and argues that the plaintiff has not shown the relationship between the Zimbabwe dollar and the United States dollar. Further, the defendant argues that a comparison of the original claims filed 20 May 2004 and the amendment granted on 23 January 2014 show that the original claims bear no relationship to the amended claims as evinced in the following table:

In other words, the plaintiff's latest amendment to United States dollars was not a conversion of his original claims in Zimbabwe dollars to United States dollars. The amendment was a complete substitution of the original claims by new claims, claims which bore no relationship to the original ones.

It is trite law that an application for absolution from the instance, at the close of the plaintiff's case, if successful, must have the effect of terminating the case completely. The procedure is not intended for the court to determine issues piecemeal – see Dube v Dube 2008 (1) ZLR (H).

Further, damages are either general or special, and different rules apply to general as opposed to special damages: The Quantum of Damages in Bodily and Injury Cases (3^rd Ed) by CORBETT, BUCHNAN and GAUNTLETT. At page 99, the learned authors correctly observed:

“In the case of damages which are capable of exact mathematical computation…, proper evidence establishing the loss…, must be tendered. Where, on the other hand, mathematical proof…, is in the nature of thing impossible, then provided that there is evidence that, pecuniary damages, in this regard has been suffered, the court must estimate the amount of the damages as best it can on the evidence available and the plaintiff cannot be non-suited because the damages cannot be exactly computed.”

In Minister of Defence and Anor v Jackson 1990 (2) ZLR 708 (SC), GUBBAY JA…, said the following on the daunting task confronting a judicial officer is assessing damages in personal injury cases;

“It must be recognized that translating personal injuries into money is equating the incommensurable; money cannot replace a physical frame that has been permanently injured. The task, therefore, of assessing damages in personal injury is one of the most perplexing a court has to decide.”

See also Mbundire v Buttress SC13-11.

In casu, damages of psychological injury, loss of general health, loss of amenities of wife, contumelia, humiliation and defamation do not lend themselves to mathematical calculation. They are arrived at as a value of judgment and the issue of the currency does not come into it.

One cannot say that those damages, if proven to have been suffered, were only claimable in Zimbabwe dollars.

The plaintiff led evidence that he was imputed a thief and fraudster by the defendant. Such imputations, according to the plaintiff, have even been maintained after this court quashed the proceedings of the lower court and the imputations are repeated in the pleadings.

The plaintiff led evidence of a specialist on his mental stress.

On the claim of loss of earnings, the plaintiff wanted to call the defendant's Human Resources Manager. The testimony of this witness is necessary to determine the issue of the loss of earnings, if any. The defendant opposed the calling of this witness and indicated that it intended to call this witness as its own should this application fail. It is beyond dispute that evidence of the loss of earning is peculiarly within the knowledge of the defendant and the Human Resources Manager would readily have such information.

In Supreme Service Station (1969) (Pvt) Ltd v Goodridge 1971 (1) RLR (A) it was stated;

“Courts should not allow rules of procedure to be used to cause an injustice. If the defence is something peculiarly within the knowledge of a defendant…, the plaintiff should not lightly be deprived at his remedy without first hearing what the defendant has to say. A defendant who might be afraid to go into the witness box must not be permitted to shelter behind the procedure of absolution from the instance.”

On account this fact alone, it would be difficult for the defendant to establish that the plaintiff failed to prove loss of earnings. The defendant denied the plaintiff access to the witness he intended to call who is in the employ of the defendant. The defendant's conduct amounts to using rules of procedure to cause an injustice. I cannot, therefore, lightly deprive the plaintiff the remedy he seeks without first hearing what the defendant has to say.

Further, on general damages sought, I do not wish to make findings on the credibility of the plaintiff's witnesses at this stage. What is important is that the plaintiff led evidence on the alleged wrongful conduct by the defendant. He has led evidence that he suffered damages as a result of such wrongful conduct by the defendant. As far as general damages are concerned, as alluded to above, the court will award such damages as in its estimation justified. There may be merit in the defendant's attack in so far as special damages are concerned, but, this procedure is not intended for the court to determine issues piecemeal -Dube v Dube 2008 (1) ZLR (H).

In light of the foregoing, the application must fail.

Accordingly, the defendant's application for absolution from the instance at the close of the plaintiff's case is dismissed with costs being costs in the cause.

The plaintiff issued summons against the defendants, on 11 September 2012, claiming:

(a) Payment of the sum of US$3,700= being the cost of repairs to his Toyota sprinter motor vehicle registration number AAQ 5021 negligently damaged by the first defendant on 17 December 2011 who was at the time driving a Toyota Land Cruiser registration number AAX 3378 which vehicle, at the material time, was insured by the second defendant in terms of Part (IV) of the Road Traffic Act [Chapter 13:11].

(b) Payment of consequential damages in the sum of US$9,750= being the cost of hiring a replacement vehicle during the period 18 December 2011 to 30 June 2012 while the plaintiff's vehicle was being repaired.

(c) Interest on the sum of US$13,450= at the prescribed rate from the date of summons to date of final payment.

(d) Costs of suit.

In his declaration, the plaintiff averred that a road accident occurred along Alpes Road, between Cambridge and Borrowdale West Harare, on 17 December 2011, between his vehicle and that belonging to the first defendant. He averred, further, that the accident was caused solely by the first defendant's negligence, based on the fact that;

(i) She was driving at excessive speed.

(ii) She made a right turn in the face of oncoming traffic when it was dangerous to do so.

(iii) She failed to keep a proper lookout.

(iv) She drove too fast given the prevailing traffic conditions.

(v) She failed to apply brakes to her vehicle timeously or at all.

(vi) She was driving without due care and attention.

(vii) She failed to keep her vehicle under proper control.

The plaintiff alleged that the defendant paid an admission of guilt fine.

The plaintiff averred that as a result of the accident his motor vehicle sustained damage to the gear box, radiator, bonnet, headlamps and the windscreen. He averred, further, that the vehicle was repaired by H & J Panel Beaters, of Bluff Hill, Harare, at the second defendant's instance. When he took delivery of the vehicle, the plaintiff was not satisfied with the repairs done to his vehicle.

He then procured quotations for sums in excess of US$3,700= from different panel beaters, with a view to restoring his vehicle to the condition it had been in prior to the accident with the first defendant. He obtained a report from the Automobile Association of Zimbabwe (Private) Limited which confirmed that the repairs done to his motor vehicle were not satisfactory. The plaintiff alleged that the second defendant subsequently advised him to surrender his vehicle in return for an amount of US$3,500= which it claimed was the market value of the plaintiff's vehicle.

The plaintiff disputed this and insisted that the value of his vehicle was US$6,300=.

The plaintiff averred that he expected his loss to be mitigated by June 2012, and, because he was deprived of his car he rented a vehicle at US$50= per day from 18 December 2011 to 30 June 2012, when his vehicle was satisfactorily repaired.

The defendants filed their plea to the plaintiff's claim on 18 October 2012. The first defendant admitted to driving without due care and attention but denied any form of negligence.

The defendants put the plaintiff to the proof of the damages allegedly incurred.

The defendants averred that, on 20 January 2012, the plaintiff signed a satisfaction note on completion of the repairs, after signing a release form on 19 January 2012, in which he authorized the second defendant to pay directly to the panel beaters, for the cost of repairs. The defendants averred, further, that on 19 January 2012, the plaintiff signed a release form in which he released the defendants from any further actions or suit emanating from the accident.

On the issue of inadequate repairs to the plaintiff's vehicle, the defendants averred that the plaintiff's concerns had been noted, but, due to the fact that his vehicle had sustained damage from a previous accident, he was asked to contribute to the repairs of his vehicle.

The defendants denied that the plaintiff's motor vehicle was valued at US$6,300= and put him to the proof thereof.

In his replication to the defendants' plea dated 11 December 2012, the plaintiff denied each and every allegation of fact and of law and put the defendants to the proof thereof and joined issue with the defendants.

At the pre-trial conference, on 4 September 2013, the matter was referred to trial on the following issues:

1.Whether or not the plaintiff is entitled to disbursement, the same claim having been settled, and, if so, in what amount?

2.Whether or not the plaintiff was entitled to hire a vehicle, and, if so, the quantum of the hire charges.

Admissions were made by both parties:

1. The defendant admitted liability for the accident.

2. The plaintiff admitted that his vehicle had been involved in another accident prior to the accident in question.

At the hearing of the matter, the plaintiff, a self actor, testified and told the court that: “his vehicle was taken to the panel beaters for repairs on the day of the accident, 17 December 2012, at the first defendant's instance, and a promise was made to him that the vehicle would be repaired the same day. He told the first defendant that he needed his vehicle as a matter of urgency because he intended to travel and she promised him that, because she knew the manager at H & J Panel Beaters, the vehicle would be repaired that very day. He arranged for cover quotations to be done with the assistance of the manager at the panel-beaters.”

The plaintiff then referred to copies of the quotations which he wanted to show the court.

Counsel for the defendants objected to the production of the quotations on the basis that they had not been discovered in terms of the Rules and that the defendants were hearing of the quotations for the first time.

The court sustained the defendants' objection after referring to the schedule of documents discovered and explaining to the plaintiff, who was not legally represented, the reason why it could not admit his quotations into evidence.

The plaintiff continued to testify. He told the court that: “After the cover quotations were done the vehicle was assessed by Mr. Chiunda, an assessor, who wrote a report indicating that plaintiff's vehicle was valued at US$5,000=.”

The report was not tendered into evidence.

The plaintiff told the court that, two days after the accident, his vehicle had not been repaired, and that, on contacting the first defendant she referred him to the second defendant, the insurer of her vehicle.

The plaintiff asked the court if he was allowed to show it text messages exchanged between him and the first defendant at the material time. He applied to have a printout of his phone admitted into evidence. The printout was admitted as exhibit 1. It was dated Friday December 23, 2011, 11:07pm, from the first defendant to the plaintiff, and it read as follows:

“I have no input on that one, Mr. Sibanda. Everything to do with your car is with the insurers and JMC.”

The plaintiff told the court that he was aggrieved by the first defendant's attitude because she had previously assured him that his vehicle would be repaired in one day. He proceeded to hire a motor vehicle to use, and, in his words “…, with the first defendant's knowledge and consent.”

The plaintiff told the court that his vehicle took a month to be repaired, and, consequently, extended the car hire period because he needed a car to go to his rural home that Christmas. After that, he signed some papers at the second defendant's offices which were allegedly explained to him as documents to enable him to collect his motor vehicle from the panel-beaters'. He testified that he signed the documents provisionally, because he had not yet seen the car, and, to demonstrate this, he alleged that the documents he signed were not witnessed, and therefore invalid because he told the second defendant that he would come back after he got his vehicle for the witnessing of the documents.

The plaintiff collected his vehicle on 20 January 2013 and signed a release note at the panel-beaters. He took a ten minute video of the release process.

Next morning, on his way to work, he discovered that the gearbox on his vehicle was not functioning properly, the windscreen wipers were not working, and that the vehicle had a lot of other defects.

Around 22 January 2013, the plaintiff brought his complaints to the second defendant, where he was told that the panel-beaters had already been paid, on his instructions, when he signed the form authorizing the defendant to pay. The plaintiff's letter of complaint to the second defendant, dated 23 January 2012, was admitted into evidence as exhibit 2. In the letter, he asked the second defendant to delay payment to H & J Panel Beaters until the matter was resolved. The second defendant promised to have the vehicle assessed and Mr. Chiunda assessed the vehicle but gave his report to the second defendant. The second defendant then indicated that the vehicle was a write off and offered US$3,500= in full and final settlement.

The plaintiff alleged that he refused this offer because he had valuation reports which showed that his vehicle was valued at US$6,300=.

No application was made to tender the alleged valuation reports into evidence.

In the spirit of assisting an unrepresented litigant the court asked the plaintiff whether he wished to tender the valuation reports in its evidence. The plaintiff replied that the reports had not been discovered.

The plaintiff admitted that his vehicle had been damaged in a previous accident. Under cross examination, the plaintiff told the court that his level of education was Ordinary Level and that he is a self employed freelancer who analyses chemicals for a living. On being asked to provide proof that he communicated to the first defendant his intention to hire a vehicle to use at her expense, he replied that he had no proof, their communication was verbal. He denied that it was a luxury on his part to hire the vehicle and averred that a vehicle was essential to his business.

The plaintiff admitted that his vehicle went to the panel beaters at 3pm on the day of the accident. On being questioned as to how the first defendant could assure him that the vehicle would be repaired the same day given the lateness of the hour, he told the court that although the damage to his vehicle was extensive, it was feasible that repairs could take a short period of time.

He admitted signing the form that authorized the second defendant to release payment to the panel beaters on 19 January 2013 but stated that the signature was provisional because it was not witnessed. He admitted that he had signed a clearance note in which he acknowledged receiving his vehicle in good condition order and repaired to his complete satisfaction but stated that the form was subject to his findings after checking the vehicle.

He reiterated that his vehicle was valued at US$6,300=.

Finally, he told the court that, to mitigate his loss, he hired the cheapest vehicle that was available at the time.

He admitted that his letter of complaint, dated 23 January 2013, came three days after he authorized the second defendant to pay the panel beaters on 20 January 2013. The plaintiff then closed his case.

The defendants applied for absolution from the instance on the basis that the plaintiff had failed to prove a prima facie case, and, that the plaintiff had failed to prove its entitlement to payment of hire charges of a replacement vehicle, and, that, after the second defendant had paid for the repairs, there was no continuing legal liability on it to advance more money to the plaintiff for further repairs or for any other reason.

The issues for determination at trial were whether the plaintiff was entitled to a further disbursement after the second defendant had paid for the repairs to his vehicle, and, if so, in what sum, and whether the plaintiff was entitled to hire a vehicle, and, if so, whether he ought to be reimbursed for the cost of the car hire.

The onus was on the plaintiff to prove his claim on all the trial issues by adducing sufficient evidence to meet the standard of proof in civil cases, proof on a balance of probabilities.

The question that the court must ask itself, in an application for absolution from the instance, in the circumstances of this case, is this: Did the plaintiff place sufficient evidence before the court to show that he was entitled to be paid more money by the defendants after the cost of repairs to his vehicle were paid in full. Secondly, was the plaintiff entitled to hire a vehicle for his use from the date when he expected his vehicle to be repaired to the date when it was repaired?

After a party has closed its case, the defendant, before commencing his own case, may apply for the dismissal of the plaintiff's claim. Should the court accede to this, the judgment will be one of absolution from the instance. See HERBSTEIN & Van WINSEN, The Civil Practice of the Supreme Court of South Africa, 4th ed…,.

The term 'absolution from the instance' is used to describe the finding that may be made at either of two distinct phases of the trial. In both cases, it means that the evidence is insufficient for a finding to be made against the defendant.

At the close of the plaintiff's case, when both parties have had opportunity to present whatever they consider to be relevant, the defendant will be 'absolved from the instance, if, upon an evaluation of the evidence as a whole, the plaintiff's burden of proof has not been discharged'. See SCHWIKKARD Van Der MERWE, Principles of Evidence 3rd ed…,.

In the case of Machewane v Road Accident Fund 2005 (6) SA 72 (T), absolution from the instance was defined as follows:

“It means that the plaintiff has not proved her case against the defendant. It is not a bar to the plaintiff re-instituting the action (provided the claim has not by then prescribed), and, in that respect, it is to be distinguished from a positive finding that no claim exists against the defendant. Absolution is the proper order when, after all the evidence, the plaintiff has failed to discharge the normal burden of proof. Absolution from the instance, in effect, brings the proceedings to an end at that stage because there is no prospect that the plaintiff's claim might succeed, and, in those circumstances, the defendant should be spared the trouble and expense of continuing to mount a defence to a hopeless claim.”

In LH HOFFMAN, DT ZEFFERT, The South African Law of Evidence 4th ed…, it is stated that:

“A decree of absolution from the instance is derived from Dutch Law…,. It is the appropriate order when after all the evidence the plaintiff has not discharged the ordinary burden of proof. Its procedural advantage is that it enables the plaintiff to bring another action on the same facts, a privilege which is denied to the defendant if he fails in an action in which the burden of proof is on him. Its other use is an extension to civil actions of the rules for withdrawing a case. If, at the end of the plaintiff's case, there is not sufficient evidence upon which a reasonable man could find for him, the defendant is entitled to absolution.”

In Gascoyne v Paul & Hunter 1917 TPD 170…, the court stated that:

“The question therefore is, at the close of the case…, was there a prima facie case against the defendant…, in other words, and, was there such evidence before the court upon which a reasonable man might, not should, give judgment against Hunter?”

In the case of United Air Charters v Jarman 1994 (2) ZLR 341 (S) it was held that:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought (to) find for him. See Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A) at 5D-E; Lourenco v Raja Dry Cleaners & Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) at 158B-E.”

In more recent times, in this jurisdiction, in the case of Delta Beverages v Onismo Rutsito SC42-13, an appeal against a High Court judgment dismissing with costs an application for absolution from the instance, the respondent sued the appellant for damages in the sum of US$20,051= and costs of suit on the basis that he had consumed a contaminated coca-cola beverage, and, that further inspection of the bottle had revealed a 'rusting iron nail and brackish foreign substances.'

The appellant was the manufacturer of the beverage in question and the question for determination by the court a quo was 'whether the appellant owed the respondent a duty of care to ensure that the product is safe, clean, healthy and fit for human consumption', or, alternatively, 'whether the appellant had negligently allowed the production and selling of contaminated coke.'

The court was satisfied that 'the respondent did not prove any damage such as would have founded a cause of action under the Law of Delict, and that, 'clearly, whatever distress or anxiety or nervous shock he may have experienced was transitory…, and, in the circumstances, the appellant had no case to answer and that should have been the end of the matter and absolution from the instance ought to have been granted.

At page12 of the judgment, on the alternative claim based on negligence, the court said:

“I am satisfied that for the additional reason that negligence was not proved and a causal link shown between the beverage in question and the appellant, absolution should have been granted.”

See also Mining Industry Pension Fund v DAB Marketing (Private) Limited SC10-11.

Could this court find for the plaintiff on the basis of the evidence which he led?

The test established in terms of the numerous decided cases necessitates an analysis of the evidence led by the plaintiff before he closed his case, and a determination of whether, on the basis of that evidence, the court could give judgment in favor of the plaintiff. In other words, was the evidence enough? Was it sufficient? Did it support the plaintiff's averments with sufficient clarity and particularity?

The degree of proof required is 'proof on a preponderance of probability'.

The plaintiff told the court that his level of education was Ordinary Level. From his testimony, and his responses under cross-examination, the court surmised that he was well aware of the legal implication of the documents that he signed on 19 and 20 January 2013 at the second defendant's offices. He authorized the second defendant to pay the panel beaters for the repairs. He took delivery of his vehicle and indemnified the second defendants against any further claims.

The plaintiff's averments that the documents were not witnessed therefore invalid were not believed by the court. The plaintiff reads and understands English very well. He is so proficient in English that he conducted his own case before the court. He could have endorsed on the documents that he was signing conditionally. He chose not to because the defence he is raising is an afterthought.

The plaintiff signed release forms and indemnity forms before the second defendant with full knowledge of the implications.

The plaintiff's evidence that the first defendant promised him that his vehicle would be repaired within a day after the accident was not believed by the court. He testified that the vehicle made it to the panel beaters by 3 o'clock on the day of the accident. It is difficult to believe, and not supported by the evidence, that the first defendant intended that the plaintiff would have his vehicle, fully repaired, by 3pm the next day after the accident. The plaintiff admitted that the damage to the vehicle was extensive.

A reasonable man on the Mabvuku commuter omnibus would surely not believe that such an extensively damaged vehicle would be repaired within twenty four hours.

The tragedy in this matter is that the plaintiff's conduct of his own trial was a farce and an exercise in futility. He clearly had no idea about the rules of evidence otherwise he would have tendered the necessary documentary evidence required to buttress his case, especially considering that he did not intend to call any witnesses other than himself.

He testified that the vehicle was assessed, but, in the absence of the assessment report, the court was unable to independently verify his claim as to the value of his vehicle. The assessment report, as well as the report allegedly done by the Automobile Association of Zimbabwe, were not discovered in terms of the Rules.

The plaintiff was hamstrung by his ignorance of the High Court Rules.

He failed to place the relevant evidence before the court, which was in his possession, but which he had not discovered in terms of the Rules.

By 23 December 2011, according to exhibit 1, the first defendant had advised the plaintiff that the matter was being handled by the second defendant, her insurers. There is insufficient evidence before the court to support the plaintiff's averment that he hired a vehicle to use with the first defendant's knowledge and consent. In any event, it was not up to the first defendant to consent to such an arrangement once the second defendant became seized with the matter.

The first defendant was insured against accident and damage. She referred the plaintiff's claim to her insurers who were processing it.

No evidence was led that the plaintiff approached the second defendant and advised that if his car was not repaired immediately he would hire a vehicle to use for business and to take his children to school. No evidence was led that the second defendant authorized the plaintiff to hire a vehicle for his use whilst his accident-damaged vehicle was being repaired.

Unfortunately, no evidence was placed before the court to support the plaintiff's claim about his vehicle being valued at US$6,300=. Independent verification of this averment would have enabled the court to assess whether the second defendant's offer to pay the plaintiff US$3,500= and write off the vehicle is fair and reasonable in the circumstances.

There is insufficient evidence, generally, on a balance of probabilities to establish a prima facie case in favor of the plaintiff and against the defendants. The plaintiff failed to discharge the onus on him to prove his case. 

It follows that absolution from the instance is granted in favor of the two defendants. The plaintiff shall pay the defendants' costs.

In an application for the recusal of a judicial officer, what must be proved is the mere possibility of bias, not actual bias. What is important when considering the circumstances of each case is the impression or perception that is created in the mind of right thinking people - not the applicant's subjective impression of bias.

The test is an objective one.

“A judicial officer should not be unduly sensitive and ought not to regard an application for his recusal as a personal affront. A judge whose recusal is sought should bear in mind that what is required, particularly in dealing with the application for recusal itself, is conspicuous impartiality. The Judge must ensure that justice is done. It is equally important that he should also ensure that justice is seen to be done. After all, it is a fundamental principle of our law and public policy. He should therefore so conduct the trial that his open mindedness, his impartiality and his fairness are manifest to all those who are concerned in the trial and its outcome.

The approach of our courts to an application for recusal has been set out in a number of cases and the principle which they seek to enshrine is that no reasonable man should, by reason of the situation or the action of a judicial officer, have grounds for suspecting that justice will not be administered in an impartial and unbiased manner. However, the mere possibility of bias apparent to a layman would not be sufficient to warrant the recusal of a judicial officer.”

The authorities which set out these cardinal principles were reviewed in the leading case on recusal of Standard Chartered Finance Zimbabwe Limited v Georgias & Anor 1998 (2) ZLR 547 (H).

It is my considered view that in an application of this nature, a presiding officer is faced with the difficult and unenviable task of being a Judge in one's own cause. It involves revisiting the record of proceedings in the trial court, and combing through it, and objectively assessing the proceedings in order to determine whether there is anything that the presiding officer said or did which can be perceived as being unjustifiably favorable to one of the parties at the expense of the other. The enforcement of the rules of procedure of the court is subject to strict guidelines which nevertheless are applied, to a certain extent, at the discretion of the presiding officer.

Judicial discretion is the power of a court to take some step, grant a remedy, or admit evidence or not as it thinks fit. Many rules of procedure and evidence are in discretionary form or provide for some element of discretion.

In this case, a determination will have to be made as to whether the decision to exclude documents that the plaintiff intended to produce in evidence before the court a quo, which documents had not been discovered in terms of the rules, and which the defendant objected to on the basis that it would be prejudiced, was motivated by bias.

The plaintiff is a self actor who brought an application for my recusal, as the presiding Judge, in a civil claim for the payment of USD$3,700= being the cost of repairs to his Toyota Sprinter motor vehicle which was negligently damaged by the first defendant on 17 December 2011. The motor vehicle was insured by the second defendant at the material time. The plaintiff also claimed payment of consequential damages in the sum of USD$9,750=99 being the cost of hiring a replacement vehicle during the period 18 December 2011 to June 2012.

Trial commenced on 6 February 2014. The defendants applied for absolution from the instance at the close of the plaintiff's case and their application was granted in a judgment dated 27 February 2014, HH92-14…,. The court found that;

“…, There is insufficient evidence before the court to support the plaintiff's averment that he hired a vehicle to use, with the first defendant's knowledge and consent. In any event, it was not up to the first defendant to consent to such an arrangement once the second defendant became seized with the matter. First defendant was insured against accident and damage. She referred the plaintiff's claim to her insurers who were processing it. No evidence was led that the plaintiff approached the second defendant and advised that if his car was not repaired immediately he would hire a vehicle to use for business and to take his children to school. No evidence was led that the second defendant authorized the plaintiff to hire a vehicle for his use whilst his damaged vehicle was being repaired. Unfortunately, no evidence was placed before the court to support the plaintiff's claim about his vehicle being valued at USD$6,300=99. Independent verification of this averment would have enabled the court to assess whether the second defendant's offer to pay the plaintiff USD$3,500= and write off the vehicle is fair and reasonable in the circumstances.

There is insufficient evidence, generally, on a balance of probabilities, to establish a prima facie case in favor of the plaintiff and against the defendants. The plaintiff failed to discharge the onus on him to prove his case. If follows that absolution from the instance is granted in favor of the two defendants. The plaintiff shall pay the defendants costs.”

The plaintiff appealed against this judgment on 18 March 2014. The grounds of appeal were that the trial court had erred and misdirected itself by disbelieving his evidence, by not accepting that the respondents had admitted that his complaints were genuine, by noting the judgment on the day of hearing before arguments, and by granting absolution from the instance.

The respondents did not appear before the Supreme Court on 6 March 2015 when an order in default of their appearance was granted in which the appeal was allowed with costs, the decision of absolution from the instance was set aside, and the matter was remitted back to the court a quo for the continuation of the trial.

The plaintiff instituted proceedings against the defendants, jointly and severally, the one paying the other to be absolved for the following relief;

1. Payment of the sum of $3,700= being costs of repairs to the plaintiff's sprinter vehicle registration number AAQ 5021 which was damaged due to a collision solely caused by the first defendant. The other vehicle involved, which was being driven by the first defendant, a Toyota land cruiser registration number AAX 3378, was comprehensive-insured by the second defendant.

2. Payment of $9,750= being hiring costs incurred by the plaintiff during the period his vehicle was under repair.

3. Payment of interest on the sum total of $13,450= at the prescribed rate from date of summons to date of full payment.

The defendants, whilst accepting liability for causing the accident, deny liability for the amounts claimed above.

The first defendant pleaded that the vehicle involved was comprehensively insured by the second defendant. She did what was expected of her by referring the plaintiff to the second defendant. Her obligations ended there as she was not privy to what transpired between the plaintiff and the second defendant thereafter. She is at a loss why the plaintiff decided to join her in the proceedings.

The second defendant, on the other hand, pleaded that it attended to repairs which were caused by the accident involving the first defendant. The plaintiff's vehicle had been involved in any earlier accident which the second defendant is not liable for. Secondly, the plaintiff signed a release form which had the effect of releasing the defendants from any further suits or claims arising from the said accident. The defendants later offered the plaintiff, without admitting liability, the sum of $3,500= in exchange for the vehicle which offer was rejected by the plaintiff.

The defendants denied the plaintiff's vehicle was valued at $6,500= before the accident. The defendants also denied liability for $9,750= being costs allegedly incurred by the defendant through hiring a replacement vehicle. They put in issue the figure claimed.

At pre-trial conference the parties agreed that the issues which fell for determination are;

1. Whether or not the plaintiff is entitled to a further disbursement, the same claim having been settled. If so, in what amount?

2. Whether or not the plaintiff was entitled to hire a vehicle, and, if so, the quantum thereof.

The defendants admitted that the first defendant negligently caused the accident on the day in question.

The plaintiff admitted that his vehicle had been involved in another accident prior to the day in question. The facts which are common cause are that the plaintiff's vehicle was involved in an accident with a vehicle driven by first defendant. The accident was solely caused by the first defendant's negligence. The first defendant has since paid an admission of guilt fine for driving without due care and attention.

The parties agree that the plaintiff's vehicle was taken to H and J for repairs. Such repairs were done. After repairs were done, the parties engaged trying to resolve the dis-satisfaction by the plaintiff over repairs done to his car. The second defendant offered the plaintiff, without admitting liability, the sum of $3,500= in exchange for the plaintiff's vehicle. The plaintiff rejected the offer.

The plaintiff led evidence in support of his claim.

He testified that on 17 December 2011 he was involved in a traffic accident with a vehicle driven by the first defendant. The first defendant has since deposited an admission of guilty fine with the police for driving without due care and attention. The plaintiff did not state damages sustained by his vehicle. He however testified that the second defendant took over the matter. His vehicle was taken to H & J for repairs. He testified that the first defendant informed him that his vehicle would be ready for collection in two days. He testified that when the vehicle failed to come out in two days he advised the first defendant of his intention to hire a vehicle. He then entered into an agreement with Jubilee Centre for the hiring of a vehicle for use. The vehicle was hired at $50 per day up to June 2012. The total costs of such hiring came to $9,750=.

He tried to produce an agreement before the court to show that daily rental for kms below 150 was $50 and for any kms exceeding 150km a day $0.60 per kilometre. Such vehicle was rented for 6 months from 21 December 2011 to 30 June 2012. However, such document was not discovered and no plausible explanation was given for failure to do so.

The witness testified that when his vehicle was ready for collection he was made to sign a release form before he had inspected the vehicle. He was also made to sign a form before the car was released to him. He denied ever signing a satisfaction form but admitted to have signed for the collection of the car.

As he drove the vehicle from H & J this witness observed that there were serious defects on the car. The gears were not engaging. He complained to H & J and also to the second defendant. He said he lodged a complaint to the second defendant on 22 June 2012. Despite his complaint, he later found out that the second defendant had paid out repair costs to H and J on 24 June 2012. He however produced his complaint letter written to Altifin dated 23 January 2012 and stamped by Altifin on 30 January 2012. The vehicle was later assessed by the second defendant's assessors. The plaintiff was never shown the reports. He was advised by the second defendant that they were assessing the vehicle for purposes of paying off the plaintiff. Three valuations were done. Alliance Insurance valued the vehicle at $5,500=, Mike Harris at $5,500= and the third at $6,300=. An offer letter was sent to him for $3,500= which he turned down.

He testified that after the accident his vehicle had been valued at $5,000=.

Under cross-examination, the plaintiff maintained he hired the vehicle after advising the first defendant. It became apparent he was not authorised to do so by the first defendant but was referred to the second defendant.

The first defendant testified that indeed she paid an admission of guilt fine with the police as she was to blame for causing the accident. The first defendant testified that at some point the plaintiff phoned her intending to hire a vehicle. The first defendant referred him to the second defendant as the vehicle was comprehensively insured. Thereafter, she never involved herself in the matter until after receiving summons from the plaintiff. She testified that the matter should be between the plaintiff and the second defendant and must not involve her.

Under cross examination, she conceded her husband was the owner of the vehicle at the time of the accident. She later said the vehicle belonged to Interfin but was allocated for use to her husband. The witness also said the plaintiff informed her that the vehicle had been involved in three accidents prior to that day's accident. She insisted that the plaintiff should not have sued her but should have proceeded against the insurers only.

It is common cause the first defendant negligently caused the accident in question and consequently caused the damages to the vehicle. The first defendant paid an admission of guilt fine for driving without due care and attention in that she failed to keep her vehicle under control. It is important to note that at the pre-trial conference the defendants admitted liability and the plaintiff admitted that his vehicle had been involved in an accident prior to this accident.

At the time of the trial the second defendant was under liquidation and no leave was sought to proceed against the second defendant. It was only the first defendant whom the plaintiff proceeded against.

From the evidence, the issue of liability is not in contention. That explains why the plaintiff's vehicle was taken for repairs.

From the evidence, it is common cause, after the initial repairs, the plaintiff was not happy with the repairs resulting in assessments to ascertain the value of the motor vehicle. The second defendant is no longer before me so I shall endeavour to talk about the second defendant only as agents for the first defendant.

The assessments were done and no agreement was reached between the plaintiff and the second defendant as the two parties disagreed on the value of the vehicle. The first defendant pleaded that she was indemnified in and against all damage to the plaintiff by virtue of the comprehensive insurance policy held with the second defendant. As such, she argued that she was a wrong defendant before the court.

The contract of insurance is between the owner of the vehicle and the second defendant. There is no direct contractual relationship between the plaintiff and the second defendant. A contract of insurance is a contract for the benefit of a third party. As was quoted with approval in Joel Melamed and Hurwittz v Cleveland Estates (Pvt) Ltd, Joel Melamed and Hurwittz v Vorner Investments (Pvt) Ltd 1984 (3) SA 155…,;

“…,. In the legal sense, which alone is here relevant, what is not very appropriately styled a contract for the benefit of a third person: it is a contract between two persons that is designed to enable a third person to come in as a party to a contract with one of the other two (Cf Tankelow v Binder Gering and Co. 1927 TPD 364)…, the typical contract in order that C may be enabled, by notifying A to become a party to a contract, between himself and A.”

Whilst the plaintiff can choose to sue the insurance company, it is only sued on behalf of the insured. The second defendant could only be sued on behalf of the first defendant. That, in itself, does not exonerate the first defendant from liability. In any case, it is trite that even where the insurance assumes liability on behalf of the insured, it does not always cover every damage. The injured party is allowed, in law, to pursue the driver of the vehicle for the difference.

The mere fact, therefore, that the first defendant was indemnified under the insurance policy does not entail she is immune to suit.

The evidence of the present case shows that the vehicle was not repaired to the satisfaction of the plaintiff and there is nothing in law stopping the plaintiff from pursuing his claim against the first defendant. However, the plaintiff must prove his damages in order to recover same from the first defendant.

Whilst I am aware that the motor vehicle was not repaired to the plaintiff's satisfaction, I have not been told in what respect. The plaintiff only generalized that the wipers were not fitted properly and the gear box was damaged. The plaintiff did not go further to call expert evidence to prove his damages.

The plaintiff also testified that he had hired a vehicle and had paid monies toward such hire but he failed to produce such receipts. In the case of Standard Chartered Finance Zimbabwe Ltd v Georgiea and Another 1998 (2) ZLR 547 the court…, had this to say;

“With regard to the question of proof of quantum, in Mkwanazi v Van der Merwe and Another 1970 (1) SA 609 (A) at 631, VAN WINSES JA referred with approval to Herman v Shapiro & Co 1926 TPD 367 at 379 where STRATFORD J said:

'Monetary damage having been suffered, it is necessary for the court to assess the amount and make the best use it can of the evidence before it. There are cases where the assessment by the court is very little more than an estimate; but, even so, if it is certain that pecuniary damage has been suffered, the court is bound to award damages. It is not so bound in the case where evidence is available to the plaintiff which he has not produced; in these circumstances, the court is justified in giving, and does give absolution from the instance.'”

Where the plaintiff is capable of leading evidence which will enable the court to arrive at some quantum, and the plaintiff does not the court can dismiss the matter. Litigants should never leave it to the court to guess damages suffered when they could have provided such information to the court.

Herein, the plaintiff could have had an expert testify on the damages caused to the car, the repairs done, and the insufficiency of repairs carried out. The plaintiff had in his possession the contract between him and Jubilee for the car hire, and receipts paid but decided to withhold such information from the court. The plaintiff only has himself to blame for failing to quantify his claim. As said in Visser and Portigieter, Law of Damages…,:

“It is not the task of the court to award an arbitrary amount of damages where the plaintiff has not produced the best evidence upon which a proper assessment of the loss could have been made.”

The plaintiff, in the summons, did not claim for value of the car. Otherwise it is trite that where a vehicle is damaged beyond repair the measure of damages is the value of the motor vehicle at the time of the accident. See SA Eagle Insurance Co Ltd v Hartley 1990 (4) SA 833 (A) and Visser and Portigieter, Law of Damages…,.

However, that is not the plaintiff's case.

The plaintiff's case is that he incurred additional costs of $3,700= for repairs to his vehicle after the first repairs done by H & J. The plaintiff however did not produce any evidence to show that he incurred such expenses.

The plaintiff tried to rely on the initial value of the vehicle at the time of the accident. Such evidence does not assist the plaintiff in his claim. Whilst I am of the view that the first defendant could have been found liable for the damages and hiring costs of the vehicle, the plaintiff has failed dismally to prove quantum of such damages and hiring costs.

Accordingly the claim is dismissed with costs.

At the close of the plaintiff's case the defendant swiftly moved to make an application for absolution from the instance.

What runs through the plaintiff's declaration is the allegation that the defendant lacked due diligence and care in the manufacturing of its product to the extent that the product itself is not safe, clean, healthy and fit for human consumption.

The plaintiff testified himself and called two more witnesses one of whom testified to corroborate the plaintiff's evidence that he had partaken of contaminated coke. That the plaintiff drank coke which was not safe for human consumption could not have been successfully challenged by the defendant as none of its representatives were present when the partaking took place. The thrust of the defendant's defence, as demonstrated by the cross-examination, was the source of the drink in question.

The second witness called by the plaintiff alleged he was also a victim of contaminated coke on an entirely different occasion, and, in the court's view, his unsolicitated testimony tendered to corroborate the plaintiff's contention that all was not well in the defendant's manufacturing of the product in question.

Exhibits 8 and 9 which were produced by the plaintiff again tended to show that there were some foreign substances in the defendant's coke and this appeared, in the eyes and mind of the court, to show that there was something amiss with the defendant's product.

The plaintiff testified that as a result of drinking the contaminated coke he ended up incurring medical expenses some of which even the defendant's counsel was unable to challenge at the time he made an application for absolution from the instance.

It appeared the defendant's counsel's position was that the plaintiff ought to have used the defendant's testing facilities at the defendant's place if he felt there was something wrong with the coke that he drank.

I was not persuaded to accept this argument.

In fact, it raises quite an interesting debate for one to argue that it would have been reasonably expected for the plaintiff, being a victim of the alleged negligence of the defendant, to make use of the defendant's facilities to either confirm or exonerate the defendant's alleged lack of care and due diligence.

The plaintiff alleged, in his declaration, that he had suffered general damages in the sum of US$20,000= for distress and anxiety. The defendant's counsel argued that in acquilian action distress and anxiety are not recognisable.

This obviously is a legal issue which both the plaintiff and the defendant would have to deal with when all the evidence in this case (including the defendant's) have been gathered.

Authorities are agreed on the test to be applied in deciding an application for absolution from the instance. GUBBAY CJ eloquently laid down the legal position in the following:

“A plaintiff will successfully withstand such an application, if, at the close of his case there is evidence which a court, directing its mind reasonably to such evidence could or might (not should or ought to) find for him. See Supreme SVC Station (1969) (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR (A) at SD–E; Lowrence vs Ragar Dry Cleaners and Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) at 158/B – E.”

United Air Charterns v Jarman 1994 (2) ZLR 341 (S)…,.

Could or might the court in the instant case find for the plaintiff?

In the court's view, the answer must be in the affirmative. The totality of the pieces of evidence put together by the plaintiff appear to me to establish a prima facie case of negligence on the part of the defendant. The defendant must not be denied the opportunity to explain its manufacturing process to the court by this application for absolution from the instance.

In both cases, Delta Operations (Private) Limited t/a National Breweries v Charles Maraura SC106-99 and Seliphias Musiyiwa v Delta Corporations Limited t/a United Bottlers HH64-04 cited by counsel for the defendant, the enquiry was allowed to run its full course and the court was only able to make a proper determination after assessing the defendant's evidence together with that of the plaintiff. It is clear to me that in both cases the courts made a specific finding that there was a likelihood or probability of interference with the defendant's process after the product had left the production and distribution line on its way to the retailer.

These findings were not made as a result of conjencture but followed a thorough analysis of the evidence placed before the court by both parties. I am unable to speculate on such finding at this stage. The defendant must give evidence to rebut the plaintiff's allegations which have been reasonably corroborated by the witnesses who testified.

Consequently, the application for absolution from the instance is dismissed with costs in the cause.

The defendant, Steward Bank, applies for absolution from the instance at the close of the plaintiff's case in matter founded on damages for breach of contract.

The plaintiff is Mucal Investments. In its summons it seeks payment of US$553,544=42 by the defendant. The amount is sought as damages for loss of business between January and July 2013 resulting from the plaintiff's bank account having been frozen by the defendant under circumstances which will be elaborated. Interest is also sought at the prescribed rate from the date of the summons to date of full payment. In addition, costs of suit are further sought as between attorney and client.

The damages are founded on the allegation that it was a tacit term of the agreement between the parties that the defendant would honour all cheques and negotiable instruments and transfers properly drawn.

The plaintiff, which was then engaged in the business of supplying vegetarian products states through its Director, Lion Chirove, that it could not access its account to effect business payments despite demands being made to the defendant and a court order having been obtained.

The plaintiff company was founded in 2006 and its Directors were then Avila Zvenyika and Lion Chirove. In May 2010, two brothers, Bruce Smith and Ahmad Smith, who had joined them in a business partnership, were made directors of the company. As explained in a “to whom it may concern letter” written in October 2010, being non-Zimbabweans and in the absence of a valid work or residence permit, the new partners could not sign on any Bank account. The letter explained that they had been temporarily removed from the company's CR14 form but that they were, in essence, still directors pending regularisation of their permits.

In September 2011, the plaintiff moved its banking account from CBZ to the defendant Bank.

At the time of opening the account its signatories were Lion Chirove and Avila Zvenyika. Mr Bruce Smith was however made a signatory in place of Mr Lion Chirove in a letter to the Bank dated 30 April 2012. It advised that a Board meeting had resolved to appoint him together with A Zvenyika. However, on 19 November 2012, following a dispute with the Smith brothers, Avila Zvenyika, the company's administrator, had written to instruct the Bank not to process any transactions unless it was authorised by the two Directors as captured on the CR14 form, namely, herself and Lion Chirove.

From the plaintiff's testimony, what flamed the dispute emanated from the fact that the Smith brothers had clandestinely registered a company in South Africa giving themselves a 100 percent shareholding when the agreement had been to go 50-50 with Mucal Enterprises. They had also registered a company in Zimbabwe giving themselves a 70 percent shareholding and the plaintiff and its director 30 percent. The dispute fully ignited when the Smith brothers proposed that a shareholder's agreement be signed between Mucal Investments and the two brothers as a separate agreement. Under the agreement, Mucal Enterprises would be owned by the Smith brothers in their South African company. The plaintiff's directors, Lion Chirove and Avila Zvenyika perceived this move as designed to swallow and push it out of business.

It was then that the instructions were given to the Bank regarding the change of signatories whereby Mr Chirove was reinstated as signatory in place of Mr Bruce Smith.

He further testified that on 21 January, when he tried to effect telegraphic transfers for the sum of R98,000= to a South African supplier (Fry Group), the defendant refused to honour the transaction, and, instead, froze the account. However, it emerged, in cross examination, that the reason why the Bank froze the account was that it had received instructions from Mr Bruce Smith that he had been improperly removed as a director and signatory.

The plaintiff's position is that the internal dispute was none of the Bank's business and that it was its responsibility to abide by the instructions of the directors as captured on the CR14 form. This showed the two directors as himself and his wife Avila Zvenyika.

Out of an abundance of caution, the defendant, on the other hand, had frozen the account until the dispute had been solved. At the time, the plaintiff held $24,797=35 in its account as per bank statement presented as Exhibit S.

That the dispute also set off a chain of events is not denied. Nonetheless, the plaintiff's position is that had the Bank risen above the dispute in light of its contractual obligations to its “true” client, none of the losses subsequently suffered would have occurred.

The chain of events is crucial to grasp as it places crucial variables to the otherwise linear causation of losses suffered as articulated by the plaintiff. The events were as follows:

1. On 23 January 2013 the Bank refused to effect the transactions following the representations made to it by Mr Bruce Smith that he had been improperly removed as signatory.

2. On 6 February 2013 a provisional order was sought by the plaintiff against the defendant in which it sought interim relief compelling the Bank to make accessible to “applicants directors” funds held under account 60101051739101 and to allow the free and unfettered transaction and operation by the applicant of its bank account. The provisional order was granted by consent of all parties. The final order sought to declare Lion Chirove and Avila Zvenyika as having the sole and exclusive right to transact under the relevant account.

Meanwhile, on this very same date, as the above order was being granted, the Registrar of Companies wrote to Mrs Zvenyika stating that they had received a complaint of fraudulent activities concerning removal of two directors (the Smith Brothers) without their knowledge and consent. She was asked, as company secretary, to clarify the position.

Criminal proceedings were also pending in the Magistrate's Court against the plaintiff's director, Lion Chirove, for fraud.

3. On 14 February 2013 the Smith brothers applied for an interdict, under HC882/13, to prevent Lion Chirove and Avila Zvenyika from accessing the account. The plaintiff's testimony was that this order was not granted as the court took the position that it was not possible to interdict an order granted by consent. Under cross examination it emerged that the crucial reason was also to provide the plaintiff a chance to seek for a final order articulating the rightful directors since what had been granted was simply a provisional order authorising “directors” to access the account.

4. On 11 March 2013 one Martha Chakanyuka, a Principal examiner in control of companies, signed a statement stating that the CR 14 form signed in October 2010 was fake and that the stamps and signatures were fake. She highlighted the procedures for change of directorship and averred that these had not been followed.

5. On 12 March 2013 Avila Zvenyika, in her capacity as company secretary, then replied stating that the claims were unfounded and highlighting that the company is wholly owned by its two directors, Lion Chirove and herself. She also explained that the two non-shareholding directors had been removed by a company resolution in October 2010. She also stated that the two directors, namely, the Smith brothers, had agreed to be removed back then to pave way for a loan since their immigration papers were not in order. She stated that everything had been done above board.

6. On 13 March 2013 the plaintiff's lawyers had written to the Bank regarding the opening of the account which was still not opened.

7. On 22 March 2013 the defendant's lawyers had written to the plaintiff's lawyers advising them of receipt of the statement made by the Registrar of Companies concerning the anomalies that had been detected. They also advised that the dispute needed to be resolved since the court had granted the order on the 6^th of February on the basis that the CR14 now under dispute had been the correct one. In view of these developments they also pointed out that their client, the Bank, was unable to accede to the request to activate the account.

8. On July 5, 2013 Martha Chakanyuka signed another statement - this time essentially confirming that following certain documents being availed that the CR14 form earlier criticised as improper was in fact proper. She confirmed that the Smith brothers had indeed been removed as directors on 4 October 2010.

9. On 16 July 2013 the plaintiff's directors finally accessed the account having been informed, according to the plaintiff, through a casual encounter with the Bank's manager, that the account had been reopened.

The Plaintiff's perceived loss

The gravamen of the plaintiff's evidence was that over the time when it was not allowed access to its account, it had contracts with several retail supermarkets as a supplier of vegetarian products. These included shops such as OK, Bon Marche and Spar shops. A contract with OK, dated 2010, was placed before the court as Exhibit E. The contract itself however did not indicate the value or volume of business between the parties.

From the OK and Bon Marche shops, the plaintiff valued its business for the relevant period when its account was frozen at $50,000= with a profit of $26,000= after expenses had been paid. Exhibits H1-H6 were handed in. Three of these were statements generated by the plaintiff's director while another three were said to be generated by OK although there was no official verification of these documents.

Also presented were the plaintiff's own calculations of business with the Spar shops (Exhibits G1-G5). However, the plaintiff did not produce any evidence or proof that business was actually being conducted constantly or on a monthly basis.

The plaintiff's director also presented its projections of business it was set to do with TM and Pick n Pay. It said the value lost amounted to approximately $74,000=. In addition, the plaintiff's company had a credit facility with TN Bank for up to $4,000= per month and was doing business with TN Harlequin (Exhibit F).

It terms of lost business, it had also secured an arrangement to supply the Seventh Day community with vegetarian products at its Adventist camp sites. With 52 campsites attended by about 5,000 people per camp annually, the plaintiff's estimation was that it lost a potential of US$5,000= per campsite giving a total loss of $260,000=.

In July 2012, the plaintiff had gotten another product for distribution from Good Hope International Enterprises for soya milk. It alleged that it would have been a sole distributor, and, on arrangement, would have been a regional distributor. However, no proof of this averment was produced. At the time, the plaintiff stated it had received an order by consignment from Good Hope for $30,000=. This would have been serviced from the account.

The plaintiff stated that, overall, it was expecting, during the period its account was frozen, a total of US$495,000= worth of purchases with Good Hope and from this amount $693,000= worth of sales thereby giving it profit of $198,000=. The plaintiff later clarified, in cross-examination, that it was still negotiating this contract and therefore no contract could be availed. However, it had received the order by consignment for $30,000= though, again, no proof was produced. From the Fry's Group, business lost over the seven month period was estimated to $102,712= after expenses.

The company, according to its Director, had also made inroads into the possible supply of meat-free products to Catholic schools around the country under which he estimated it would have made at least $20,000 - $25,000 per month.

All the above was the kind of business the plaintiff said it lost on probabilities. The devastating consequence arising from the defendant's perceived breach of contract was not only loss of income, according to the plaintiff's director, but also termination of contracts.

The distributorship business with the Fry Group was terminated in April 2013 and with Good Hope in September 2013. It lost all its suppliers because it failed to pay them. It lost all its clientele whom it failed to service. It was, according to him, a sole distributor of vegetarian products. It was also working with a “niche market”. It also lost its reputation in the process. By December 2012 the company, according to its director, had grown to 12 employees. Today it has none.

The plaintiff blames the defendant for the sum total of these woes because it could not access its account to conduct its business.

Interrogation of the loss in cross examination

The plaintiff was quizzed by the defendant's counsel…, on the company's financial accounting procedures.

The plaintiff's director conceded that he is fully aware of the need to keep proper books of account by any company. He agreed that such books would indeed vividly indicate the company's flow of business and any profit and loss made. He was also in agreement that annual tax returns would clearly indicate the actual profits made for tax purposes. He said all such documentation existed with respect to the plaintiff company but admitted that they had not been tendered as evidence.

He did not dispute that a Bank can place administrative requirements over those who operate accounts and that it is entitled to refuse access where it has concerns as to the authenticity of any representative. However, he was adamant that the Bank acted improperly, especially as it had been given the necessary information as who the directors were.

The plaintiff's director also confirmed that indeed the Smith brothers had come in as financial partners as the company was going through financial difficulties at the time. Their terms were to be shareholders on a 49-51 percent basis. The other condition was to secure them as signatories to the account.

It emerged from cross-examination that certain monies invested by the Smith Brothers had not been paid back by the plaintiff. The Smith brothers were therefore seeking to protect their investment.

He also agreed that no final order had been sought to the provisional order that had been granted by the court on 6 February 2013. He also conceded that the day that the order was granted, on 6 February 2013, was also the very day that the Registrar of Companies had written to the other director, Ms Zvenyika, seeking an explanation of allegations of possible fraudulent removal of directors. This information had not been before the court at the time that it was granting the provisional order.

He also did not deny that the Smith brothers had also sought an urgent chamber application to stay operation of the provisional order granted by the court on 6 February 2013.

He further agreed that he had not taken any concrete action to actively challenge the statement and that the statement was withdrawn in July against a backdrop of investigations the Registrar had carried out. He did however maintain that the statement was challenged when he was being prosecuted.

Although his view was that the provisional order granted on 6 February 2013 was clear as to its directive regarding the re-opening of the account. He did concede that it was the final order that specifically sought to confirm himself and Ms Zvenyika as the true directors of the company.

He admitted that no action was taken on his part to seek a final order as directed by Justice PATEL in HC882/13 which would have put an end to the dispute at least as way back as March 2013. He also admitted that on the same day that bail conditions were relaxed to allow him to operate the account was also the same day that the Registrar of Companies made the allegation that there was possible fraudulent activity.

The application for absolution

The defendant has applied for absolution from the instance largely on the basis that the plaintiff has essentially failed to make out a case against the defendant that is deserving of a reply. It is also argued that the plaintiff had failed to prove any breach of contract entitling it to special damages.

In terms of general principles on absolution from the instance the case of United Air Charter v Jarman 1994 (2) ZLR 341 (S) condenses the position as follows:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which the court, directing its mind reasonably to such evidence 'could or might (not should or would)' find for him.”

The above principle draws on cases such as Supreme Svc (1969) (Pvt) Ltd v Fox Goodridge (Pvt) Ltd 1971 (1) RLR 1; Lourenco v Raja & Steam Laundry (Pvt) Ltd 1984 (2) RLR 151.

The principles have also been canvassed in a number of cases such as Walker v Industrial Equity Ltd 1995 (1) ZLR 87 (S); Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H); Dube v Dube 2008 (1) 326.

In seeking to put the defendants to its defence, it is argued, by the plaintiff, that the Bank knew who the directors were as these were indicated on the CR14 form. It is also argued that as the account in question was the plaintiff's sole business account it should have been apparent that it would suffer loss if it was not permitted to transact under that account. The dispute, it insists, could have been solved at a later stage. It argues that for reasons such as these, which are common cause, it has done enough to put the defendant on its defence.

The plaintiff also lays emphasis on the fact that at this stage it is not about whether the evidence is true or false. In its view, absolution should only be granted where it has failed to establish an essential element of its claim. The plaintiff emphasises its contractual relationship with the defendant; the fact that the defendant breached the contract. In support of this, the plaintiff points out that the money would have been paid to suppliers and not to themselves.

In opposing absolution from the instance, the plaintiff places reliance on the position articulated in the case of Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H) that in considering absolution from the instance a judicial officer should always lean in favour of the case continuing. If there is reasonable evidence on which the court might find for the plaintiff, the case should continue.

However, the preponderance to 'lean in favour of' is not the same as saying a judicial officer must always lean in favour of the case continuing. It is in cases where there is doubt that the court should lean in favour of continuing as SMITH J emphasized in Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (H). Where a judicial officer has no doubt in their mind from the evidence submitted, then by all means absolution should be granted. The key issue for consideration therefore is whether sufficient evidence has been placed before the court upon which the court might find for the plaintiff.

Factual and legal analysis

While damages are sought against the defendant as the unitary cause of the loss of business suffered by the plaintiff, the facts informing the claim are far from being one-dimensional.

The evidence that has been placed before the court indicates that an internal dispute and competing claims within the plaintiff company where at the heart of the chain of converging events that led to operational problems for the plaintiff company including the freezing of its account. Yet, only one cause, the freezing of its account is isolated by the plaintiff as leading to his perceived loss.

Just because a plaintiff strongly believes that a factor that he has isolated is the predominant cause of its problems does not exclude other explanations which have a bearing on the matter from being considered by the court in deciding whether sufficient evidence has been placed before it to exclude their impact.

Where a problem is multiply-caused, as in this case, the question of whether or not the court might find for the plaintiff on the evidence adduced, of necessity, depends on whether the evidence placed before the court, on a balance, sufficiently rules out other explanations as causes for the loss suffered by the plaintiff. In other words, if, from the evidence adduced it cannot be inferred, on a balance of probabilities, that the single behavioural event isolated by the plaintiff was the cause of its loss, then the evidence is simply not sufficient. The evidence adduced must, on a balance of probabilities, sufficiently pry apart other variables such as to leave the one the plaintiff relies on as the dominant cause. If, at the close of the plaintiff's case, insufficient evidence has been placed before the court to support an averment, this will not change even if the defendant is put to its defence.

What this court has before it at the conclusion of the plaintiff's case is a convergence of multiple factors, predominantly emanating from events within the plaintiff company that complicated the issue for the plaintiff.

The defendant's actions were largely responsive to such outside stimuli as opposed to being the dictator of them. Also, the defendant's actions, in refusing to release the funds, have to be put in perspective of the events that unfolded.

The Bank's client was the corporation. There was a dispute regarding the directors of the corporation. A criminal complaint was made by a competing director. The Registrar of Companies, at first, also confirmed the allegations of fraud and it was only in July when their initial position was reversed. Although a provisional order was obtained it is instructive that on the very day of its obtainment the dispute escalated rather than abated. The Bank was essentially faced with divergent claims to the account by two feuding parties each claiming legitimacy.

The plaintiff argues that the defendant breached its contract in failing to pay on demand.

Yet, in light of the facts, the Bank would equally have found itself liable to a claim from either of the competing parties to the account for wrongfully paying out of the account or un-authorised payment since each side had laid claim to the account.

There was no breach since its client was the corporation and competing claims had been placed before it by two sides within that corporation relating to its directorship. Only where the dispute was resolved in terms of clarity of directors could the Bank safely pay out. Only a foolish Bank would have paid out to any of the claimants without a final court order as to the true status of each of the claimants.

While the defendant may have acted on the strength of the documents written by the Registrar of Companies it was not the author of these documents.

The plaintiff also rests its argument for dismissal of absolution on the basis that it suffered damages as a result of the breach.

The case of Trust Bank of Africa Ltd v Marques 1968 (2) SA 796 (T) is cited in support of the contention that a Bank which fails to honour cheques when funds are available risks a claim of damages. The plaintiff argues that the contracts it placed before the court were sufficient, namely, those from OK Zimbabwe and the TN credit facility.

Finally, the plaintiff also argues that its loss was not remote.

Special damages are ordinarily regarded in law as being too remote to be recoverable. They are claimable in situations where it can be deduced that the parties actually or presumptively foresaw that they would probably flow from a breach of contract and were within the contemplation of the parties. As stated by GUBBAY CJ…, in United Air Charter v Jarman 1994 (2) ZLR 341 (S) in determining whether they are claimable it is of assistance to look to;

(a) The subject matter and terms of the contract itself;

(b) The special circumstances known to both parties at the time they contracted.

I do not think that damages arising from a quarrel among the directors was within the contemplation of the parties. In any event, the core point remains whether sufficient evidence has been placed before this court to justify such damages.

One crucial manner a purportedly dominant claim, particularly one for damages, is strengthened is by way of statistical evidence to support it.

Being a claim of special damages, the plaintiff had the responsibility to prove its quantum of damages by placing all relevant evidence before the court in order to prove its claim. Such special damages will not be granted if they are too remote.

The defendant argues that the evidence placed before the court was too scanty. No proof of invoices or proof of orders that were received and needed honouring by the Bank were submitted to the court by the plaintiff. These would have provided irrefutable proof of business that was actually lost. Also, the plaintiff did not produce any evidence which would have supported their position that the money that the defendants refused to pay would have been going to suppliers and not to themselves.

In seeking absolution from the instance, the defendant further argues that the plaintiff's books of accounts and tax returns would have been proof of the plaintiff's profitability as alleged by its Director. The plaintiff's director, in cross examination, averred to the existence of these documents but admitted that they had not been brought to court. In its written arguments against absolution the plaintiff then stated that the audited accounts were taken by the Smith Brothers and that the tax returns are filed with the taxman and can always be taken into account in damages.

Even if the plaintiff's argument is accepted that the books were taken away and that the tax returns were filed, it cannot, in my view, escape the responsibility of ensuring that these were placed before the court given that they form the heart of the dispute. It is not for the defendant to go and extract tax returns for the plaintiff. That was clearly the plaintiff's own responsibility. It is also not the plaintiff's averment that the soft copies of the accounts are what was taken. They simply state that the accounts were taken by the Smith brothers.

As argued by counsel for the defendant, where evidence is available that would assist the court to properly quantify damages and it is not produced, then the matter must fail and the defendant must be absolved from the instance. The case of Monumental Art Co. v Kinston Pharmacy (Pty) Ltd 1976 (2) SA 111 was cited in support of this contention.

Also, a party who shies away from producing evidence cannot escape the inference that he knows that such evidence will not be favourable to him. The cases of Ntsomi v Minister of Law & Order 1990 (1) SA 512 (C); Tshishonga v Minister of Justice & Constitutional Development and Anor 2007 (4) SA 135 were cited by the defendant.

If accurate statistical evidence that is representative of the company's steady growth and success of over the years, as exemplified by tax returns, was available, then, it should have been obtained. How else would the court know from the outset that it is not dealing with isolated phenomenon in so far as the plaintiff's claims of a steady growth of the business over a number of years is concerned?

The plaintiff director's own testimonial evidence of growth and projected profits is not the kind of evidence that the court has in mind as constituting “sufficient evidence upon which the court might find for the plaintiff.”

In cases of this nature, where loss of business is alleged, tax returns and audited accounts constitute the type of evidence that would, on the face, constitute a sufficient basis for a claim upon which the court might find for the plaintiff.

Therefore, on the issue of damages for loss of business the strength of the plaintiff's evidence is essentially 'dead in the water' as a result of the failure to place the kind of credible evidence that one would expect of a company as pointed out by the defendant in its application for absolution from the instance.

At the close of the plaintiff's case, the preponderance of evidence did not point to the defendant as having been the actual cause of its loss or even being in any way the major cause of the plaintiff's loss. I am satisfied that there was insufficient evidence on which a reasonable court could or might find for the plaintiff.

The defendant seeks that costs be awarded on a higher scale especially on the grounds that the plaintiff had ample time to put all its evidence together in preparing for trial, and, as such, it has been put through an unnecessary expense.

Costs, in general, recompense a successful party for expenses to which he has been put in defending a claim. They are generally awarded on an ordinary scale. Courts are reluctant to award costs on a higher scale because they are highly punitive.

It would seem to me that the overall weakness of the plaintiff's case has emerged from the totality of having his day in court to present his case as he is entitled to. It would therefore be, in my view, tantamount to exercising hindsight to land him with costs on a higher scale.

The application for absolution from the instance succeeds with costs on an ordinary scale.

The plaintiff is the Central Bank of Zimbabwe, constituted in terms of the Reserve Bank of Zimbabwe Act [Chapter 22:15]. It is headed by a Governor, who, at the material time, had created a post of Advisor to the Governor, a post not provided for in the Reserve Bank Act which provides for the appointment of not more than two Deputy Governors, but created all the same, whose incumbent was one Dr Munyaradzi Kereke.

The position of Advisor to the Governor enjoyed a lot of autonomy, what with a fleet of three (3) pool motor vehicles in its stable and drivers for those vehicles employed by the plaintiff, but under the control of the Advisor, who also wielded significant authority, including the authority to hire a driver in his personal capacity. Although such driver was not on the payroll of the plaintiff, the Advisor was entitled to allow him access to all the motor vehicles within his stable belonging to the plaintiff.

The defendant was one such driver in the office of the Advisor, employed, initially, by the plaintiff, but, after his retrenchment at the end of January 2011, he retained that position at the pleasure of the Advisor.

When the time came for the plaintiff to retrench some of its employees, and having sought and obtained authority to do so, the Governor wrote to the affected employees a letter dated 7 January 2011 advising them of that eventuality and the process that was to be followed to achieve the outcome. The defendant was a recipient of that letter and it stated in part:

“Dear Mr Maturure Privilege

RE: Termination of Contract of Employment through Retrenchment

1. In line with the provisions of section 12C of the Labour Act No.17 of 2002 covering the above subject, and the Labour Relations (Retrenchment) Regulations, Statutory Instrument 186 of 2003; Notice was given to the Works Council that staff who wanted to go on voluntary retrenchment were to present their names to management. This has since been done. Some members of staff would be put on involuntary retrenchment for re-alignment purposes. This too has been done.

2. Approval has been received in respect of the total package from: The Reserve Bank of Zimbabwe Board; The Works Council; The Ministry of Public Service, Labour and Social Welfare.

3. Regrettably, you are one of the candidates identified for retrenchment by your Divisional Management, so that, in line with the new Board's approved structure, the Bank can focus on its core objectives.

4. You are requested to kindly get in touch with the Human Resources Division to be advised of your total package details before the end of day on Friday the 14th of January 2011 in order to facilitate the release of your first entitlement of the package and to re-confirm your payment account details.

5. In the interest of good order, and in compliance with the law, you are required to sign an Acknowledgement Form, which is the basis upon which such fiscal entitlement as the retrenchment tax-free thresholds allowance can be availed to you and tax returns submitted to ZIMRA.

6….,.

7….,.

8….,.”

The defendant complied with the provisions of the retrenchment letter. He attended at the Human Resources Division and signed the Acknowledgment Form. He also completed a clearance form with the various departments of the plaintiff which set out the details of the employer's property he was surrendering.

At the Transport Division it was endorsed that the motor vehicle he had been using was “being used in Advisor's office.”

I have already stated that after retrenchment the defendant continued in the employ of the Advisor, in a private arrangement between them, and continued using the motor vehicle which had been assigned to him before, namely, a Toyota Hilux Vigo registration number ABD 7870 (“the vehicle”), which, at separation, it had been accounted for as “being used in Advisor's office.”

When the office of the Advisor was abolished or became vacant with the departure of Dr Kereke, at the end of January 2012, the plaintiff demanded the return of the vehicle.

The dispute then arose because the defendant lay a claim to it as his retrenchment package and refused to surrender the vehicle.

The parties could not resolve the dispute, as a result, the plaintiff instituted this action seeking an order compelling the defendant to return the vehicle, damages for unlawful use and deprivation of the vehicle from 9 February 2012 and punitive costs.

In its declaration, the plaintiff averred that the vehicle had been issued or assigned for use in the Advisor's office where the defendant was attached as a driver. It was in that capacity that the defendant had access to use the motor vehicle which remained the property of the plaintiff. The office of the Advisor having become vacant, upon termination of his contract, the plaintiff was entitled to the return of the vehicle for re-deployment.

In response, the defendant asserted that he is the owner of the vehicle; it having been given to him as a retrenchment package in terms of the parties agreement of 7 February 2011. For that reason he has been in lawful possession of the vehicle and the plaintiff has not suffered any damages.

The defendant counter claimed seeking payment of his outstanding retrenchment package and the delivery to him of the vehicle's registration book.

I must mention that the defendant's claim for his outstanding retrenchment money was disposed of in a judgment relating to a point taken in limine handed down on 2 April 2014 (HH152-14).

The issues that I still have to decide are:

1. Whether the vehicle was awarded to the defendant as part of his retrenchment package in terms of the Acknowledgement Form as read with the letter of the Governor dated 7 January 2011.

2. Whether the defendant should surrender the vehicle to the plaintiff; and

3. Whether the plaintiff has suffered damages as a result of the defendant's refusal to surrender the vehicle for which the defendant is liable and the quantum thereof.

The plaintiff's case was presented through the evidence of its head of Human Resources Division, Elliot Short Rwatirera, who has been so employed for 14 years, and its Senior Executive Support Services, Francis Tamanikwa.

That evidence is simple and straight forward. It is to the effect that the defendant was employed by the plaintiff as a driver, Grade 3, and was assigned to the office of the Advisor to the Governor, Dr Kereke. He was not entitled to a personal issue vehicle, but, in the discharge of his duties, he had access to three (3) pool vehicles belonging to the plaintiff which were attached to the office of the Advisor.

When the defendant was retrenched, at the end of January 2011, his retrenchment package did not include a motor vehicle. Motor vehicles were given to managerial employees at head level and above. In that regard, they determined the net book value of the vehicle in the possession of that employee which would have been allocated to that employee during the subsistence of the employment contract. Having determined the net book value, the plaintiff offered the vehicle to that employee indicating the net book value on the exit package and the calculated figure would reflect the amount due to the retrenchee taking into account the vehicle offered.

Elliot Short Rwatirera testified that everybody who was entitled to a motor vehicle received, from the plaintiff, a document to take to ZIMRA for change of ownership. He gave an example of one issued to L. Chari who was offered a Nissan Wolf Double Cab vehicle. The document reads:

“31 January 2011

Dear L. Chari

Please be advised that, in line with the retrenchment formula, you are being offered the following vehicles(s) at the indicated net book value, NBV. Reg No. Model/Make Year NBV (USD) AAN 9631 Nissan Wolf 3.0 Double Cab 2006 $0-00. The amount is payable to the Reserve Bank of Zimbabwe and shall be deducted from your total retrenchment package and back pay that is due to you. Please note that if your total retrenchment package plus backpay is less than the value of the vehicle(s) above you shall be obliged to pay the Bank the balance by the date of your receipt of final payment from the Bank. Please be guided accordingly.

Elliot Rwatirera

Senior Executive – Human Resources Management”

Elliot Short Rwatirera explained that such standard letter was given to any retrenchee being offered a vehicle they were using even if the vehicle was being offered at zero value. In addition, the vehicle and its zero value would reflect on such retrenchee's Retrenchment Package Advice. Where there was a net book value, as was the case with another example given, that of O. Kanyimo, the document would show the value which would be deducted from money due to the retrenchee.

The defendant did not receive any such documents; his Acknowledgement Form did not cite any vehicle details and his retrenchment advice did not make reference to any vehicle simply because he was never offered a vehicle.

Elliot Short Rwatirera stated that the defendant was a Level 3 grade, the lowest level of managerial employees at the Bank, which level was not entitled to Bank vehicles as part of their employment contracts, and, in that regard, they were not offered Bank vehicles.

He made reference to what he said was a Standard Acknowledgement Form signed by all managerial staff showing the details. In respect of the defendant, he signed it on 7 February 2011. Under the column dealing with vehicle, it simply showed the terms under which an employee entitled to a vehicle would be offered such vehicle, that is, if the vehicle was more than 5 years old, they would “drive out” without paying anything. If it was less than 5 years, the plaintiff would calculate the net book value. No details of a vehicle were inserted in the defendant's Acknowledgement Form because he was not entitled to any vehicle.

Again, the separation clearance form which the defendant signed showed that he did not surrender the vehicle he had been using because it remained “being used in Advisor's office.” That shows that he was not offered the vehicle which he continued using in the Advisor's office at the pleasure of the Advisor, although it remained firmly the property of the plaintiff.

The witness also alluded to the defendant's “Retrenchment Package Advice” dated 23 August 2011, which, unlike that of Chari, did not contain any reference to a vehicle whatever its value; again, emphasizing the fact that the defendant did not have the vehicle as his retrenchment package.

Even the ZIMRA application for a tax deduction directive form for the defendant, which he produced, made no reference to a motor vehicle. He was not given any document for change of ownership of the vehicle as no vehicle was offered to him.

The witness went on to say that after the defendant's retrenchment, the vehicle continued being fuelled and serviced by the plaintiff in recognition of the fact that it belonged to the plaintiff. He produced fuel requisition forms and service records showing that it was serviced by Harare Toyota and Croco Motors during the time it was in use at the Advisor's office - long after the defendant had been retrenched. If the vehicle had ceased to belong to the plaintiff it would not have been fuelled weekly and serviced regularly at the plaintiff's expense. The plaintiff does not do that to individuals' vehicles.

He stated that when Dr Kereke left employment he was asked to surrender the vehicle along with that which was being used by another attaché of his, P. Sibanda. He scribbled a response:

“MR MANASE

(1) Please take note:

(a) Mr Sibanda (ZRP) will bring vehicle today.

(b) Mr Maturure is not a Bank Employee. He was retrenched last year (2011).

Thank you.

M. Kereke 8/2/12”

That response was not helpful at all as it did not deal with the status of the vehicle.

Francis Tamanikwa, who heads the Transport Division, re-iterated what Elliot Short Rwatirera said in his evidence producing the registration book showing that the vehicle belongs to the plaintiff and affirming the service history and the fuelling of the vehicle while it was being used by the defendant when he was privately employed by Dr Kereke. He maintained that it was a pool vehicle used for the day to day running of the Advisor's office.

The two (2) gentlemen who testified on behalf of the plaintiff gave their evidence extremely well supported by documentation which they explained very clearly. In the process they made up a very good and clear case for the plaintiff in respect of ownership of the vehicle. What they failed to do, though, is justify the claim for damages.

They only stated that the claim for damages is based on a quotation obtained from Europcar on 3 August 2012 to the effect that they were hiring out a Mazda BT50 motor vehicle at the time at a daily rate of $109.

As to how this relates to the use of the vehicle, itself a Toyota Vigo, by the defendant and what mileage the use related to, they did not say. That evidence does not assist me to assess what loss the plaintiff has suffered as a result of the defendant's refusal to surrender the vehicle.

Try as he could, the defendant could not rebut the evidence given on behalf of the plaintiff. In fact, the defendant did not make a good witness at all. He stammered, stattered, and, in the end, he could not show where in the retrenchment documents it says he was given the vehicle as a package.

Asked to show where, in the Acknowledgement Form he signed on 7 February 2011, a document he claimed is the basis of his claim to the vehicle, he could not. He only cited the column of a vehicle which column, as I have said, does not identify any vehicle but appears to contain only terms upon which vehicles were offered. It does not offer him any vehicle. The defendant maintained that he was given the vehicle although he could not place a finger on anywhere in the retrenchment documents where he is given the vehicle.

Comically, he stated that there is nowhere in the documents where it says he is not entitled to the vehicle - a clear case of putting the cart ahead of the horse.

While conceding that those who were offered vehicles were given documents to that effect for change of ownership, the defendant insisted that he is still waiting for his own similar document.

The defendant stated that after his retrenchment he was employed, privately, by Dr Kereke at his butchery although he still reported at the plaintiff's offices and that he was using “his” vehicle in carrying out Dr Kereke's errands. In return, he was being assisted with school fees for his children. He could not explain why he was using what he regarded as his personal vehicle to conduct Dr Kereke's business and why his personal vehicle was fuelled and serviced at the plaintiff's expense all the time.

I was not impressed by the defendant as a witness and he simply did not make out any discernible case at all. His story was so incoherent it became difficult to think that he wanted to be taken seriously.

For instance, when quizzed under cross examination about the contents of the Separation Clearance Form which recorded that he was not surrendering the vehicle because it continued being used at the Advisor's office, he could only say that according to the Acknowledgement Form he signed, he had already been given the vehicle and that the Separation Form only allowed him to enter the plaintiff's premises with it while conducting Dr Kereke's private business.

Nothing can be furthest from the truth.

In my view, the defendant is engaging in a futile exercise because the Acknowledgement Form he anchors his claim on does not support his case. Quite to the contrary, all the documents produced in court point to one direction, namely, that the motor vehicle is registered in the plaintiff's name. It was used by the defendant during and after his employment in the furtherance of the plaintiff's affairs as he was serving under the Advisor. When he was retrenched he was not offered, and certainly did not accept, the vehicle as his retrenchment package. When the office of the Advisor became vacant, the defendant simply engaged in a smash and grab exercise making off with the vehicle belonging to the plaintiff and refused to return it without any justification.

The plaintiff has brought this matter as an actio rei vindicatio, the nub of which is that an owner of a property, be it movable or immovable, is entitled to reclaim possession of his property from whomsoever is in possession of it.

It is inherent in the nature of ownership that possession of the res should normally be with the owner, and, it follows that no other person may withhold it from the owner unless he is vested with some enforceable right against the owner like the right of retention or a contractual right. Chetty v Naidoo 1974 (3) SA 13 (A)…, where JANSEN JA said:-

“The owner, in instituting a rei vindicatio, need therefore do no more than allege and prove that he is the owner and the defendant is holding the res - the onus being on the defendant to allege and establish any right to continue to hold against the owner.”

In our jurisdiction, that pronouncement was quoted with approval in Hamtex Investments (Pvt) Ltd v King HH403-12; Agrochem Dealers (Pvt) Ltd v Gomo & Ors 2009 (1) ZLR 255 (H); and in Alspite Investments (Pvt) Ltd v Westerhof 2009 (2) ZLR 226 (H) where…, MAKARAU JP…, said:-

“There are primarily two defences to the rei vindicatio, each aimed at destroying each of the two essential elements of the action.

The first one seeks to destroy the claim of ownership completely by denying that the plaintiff is the owner of the property in question or seeks to diminish his rights in the property by admitting his or her ownership but by alleging that the plaintiff has parted, under some recognised law, with the right to exclusive possession of the property.

The second defence, of course, is to deny possession of the property at the time the action is brought or the claim is instituted.”

I have stated that the evidence led shows that ownership of the vehicle lies with the plaintiff. It would ordinarily therefore be entitled to vindicate against the whole world, and, indeed, the defendant, unless the latter can sustain any of the two (2) defences alluded to by MAKARAU JP…, in Alspite Investments (Pvt) Ltd v Westerhof 2009 (2) ZLR 226 (H).

The defendant has admitted possession. He would, therefore, survive the implications of a rei vindicatio by either destroying the claim to ownership or showing a diminished right of ownership.

In my view, the defendant has dismally failed to sustain any defence. He has not shown that he was awarded the vehicle as part of his retrenchment package in terms of the Acknowledgement Form that he signed at his retrenchment. He has not pointed to any other basis upon which ownership could have transferred to him or curtailed. I conclude, therefore, that the plaintiff is indeed entitled to vindicate against the defendant who has no choice but to surrender the vehicle.

Regarding the second leg of the plaintiff's claim, I have already said that the plaintiff has not proved its entitlement to a recognisable figure in the form of damages.

While the plaintiff is entitled to some form of compensation for the unauthorised use of its vehicle, it still bears the onus to prove the quantum of such compensation. Having failed to come up with an acceptable formulae for computing the damages, I am unable to accede to the prayer for damages which remains unproven.

Regarding the claim for costs on the legal practitioner and client scale, the plaintiff has not established an entitlement to these. It cannot be said that the defendant's resistance of the claim was outrageous in the circumstances especially as the plaintiff's conduct of allowing a non-employee to drive its vehicle under the watch of Dr Kereke for over a year may have led the defendant down the garden path.

In the result, IT IS ORDERED THAT:

1. The defendant shall forthwith deliver to the plaintiff the Toyota Hilux Vigo motor vehicle registration number ABD7870.

2. The defendant shall bear the costs of suit on an ordinary scale.