BACKGROUND
The appellant is a company incorporated according to the
laws of Zimbabwe and carrying on business as a building contractor. The
respondent, also a duly incorporated company, is a retailer of building
materials and hardware, tools, electrical, and other supplies.
In or about January 2008, the appellant, represented by Mr
Cobi Summerfield, obtained credit facilities from the respondent for the supply
of building materials. According to the respondent, it was agreed that the
invoices were, for tax purposes, to be made out to Diverse (Private) Limited.
The corporate identity of this entity was not established at the trial but
suffice it to say that in keeping with the facility agreement an account was
opened for the appellant and monthly invoices were issued to the appellant by
the respondent in the name of Diverse Enterprises trading as Tabor Tanks.
Diverse Enterprises and Tabor Tanks are apparently trading
arms of the appellant.
Various clients of the appellant drew supplies on that
account, and, upon payment to the appellant, the latter would make payment in
liquidation of the account.
All amounts would be charged at the USD equivalent on the
date of purchase and converted to Zimbabwe dollars on the date of payment at
the rate obtaining then.
It appears that all went well until July 2008.
The respondent and Mr Cobi Summerfield were agreed that as
at May 2008 the account showed a nil balance. By June 30, there was a balance
of $5,338= which increased to $37,603= in July 2008. Payment of invoices
forwarded to the appellant was not forthcoming and the respondent was becoming
anxious for payment as it needed the finance for restocking.
Letters and emails were written on a regular basis and
showed the pressing concern presented by the failure by the appellant to pay
the amounts owing. This correspondence was punctuated by many meetings, the
results of which were referred to in the correspondence, and expressed the
anxiety being experienced by the respondent. All letters were written to the
appellant and addressed, in particular, to Cobi Summerfield.
At no time did the appellant deny liability for the debt
owed to the respondent.
Things came to a head in December 2008. The respondent's
financiers were, in turn, pressing for payment from the respondent. The respondent
was of the view that an acknowledgement of debt would provide some form of
security for the outstanding debt. The issue was discussed with Mr Cobi Summerfield.
The response was the following letter, dated 15 December 2008, from HHK Safaris
(Pvt) Ltd. It read:
“Njere Trading (Pvt) Ltd
t/a Telford Mica Hardware
20 Telford Rd
Graniteside
Harare
Dear Sirs
OUTSTANDING
ACCOUNTS
We write to confirm that JG Construction (Pvt) Ltd and
Tabor Tanks (Pvt) Ltd (“the contractors”) have been making purchases from
yourselves on our behalf.
We further confirm that we will settle all proformar (sic)
invoices submitted to the contractors in our name and with a due date of 5th
December 2008 will be paid (sic) directly to your suppliers from our FCA
account on or before the 30th January 2009.
Yours faithfully
HHK Safaris (Pvt) Ltd”
Still, no payment was made.
By the end of December 2008, the amount owing had escalated
to $59,591=84. On 23 February 2009, the respondent's Kelvin Weare held a
meeting with Mr Cobi Summerfield to discuss the situation. By letter of even
date, Kelvin Weare confirmed the meeting and their agreement. He wrote:
“Att Mr C Summerfield
J G Construction
HARARE
Dear Cobi
RE: OUTSTANDING ACCOUNT OF US$59,591=84 AS AT
31ST DECEMBER 2008
Thank you for seeing Alex van Leenhoff and I this morning,
23rd February 2009, further to the meeting this morning I write to
recap on our discussion.
I once again reiterate our discussions earlier this year
and again today, that in order for us to do business in good faith, an
“Acknowledgment of Debt” and “Suretyship” is required from your good selves for
the full amount stated above, to which you have agreed today that this is the
amount outstanding and due. It would be in your interests to obtain a similar
document from your debtor, namely HHK Safaris. Whilst we understand your
predicament that you have not been paid by your client, I stress again that we
cannot carry this amount as a debtor in our books and will, in due course,
demand payment. We have on file a letter written by HHK Safaris stating that
they would settle all profoma's that we have submitted to you prior to the 5th
December 2008, by the 31st January 2009. These payments have not
been done despite their letter. As agreed, I attach an “Acknowledgment of Debt”
and “Suretyship” for your signature.
Whilst we acknowledge that you have been proactive in
resolving this issue, to (sic) which we thank you, please be advised that we
are now in a position that cannot be allowed to continue. I am sure that you
will speak with your debtor urgently and as agreed, advise me by email the
outcome of your discussions.
I await your urgent reply and update,
Yours sincerely
Kelvin Weare
Director
Njere Trading P/L t/a Telford Mica Hardware
& Golden Stairs Hardware
The acknowledgement of debt was not signed. Instead, on 4
March 2009, Mr Cobi Summerfield wrote to the respondent advising that:
“Mr Hingeston has unfortunately put all payments on hold
until further notice. While we realize that Graham holds the goods you have
supplied, we have put a property on the market to try to generate the income to
afford us to pay you regardless of whether or not Graham pays us….,. We, as JG
Construction, are doing absolutely everything we can to ensure that you receive
your payment in the fastest possible time…,. We thank you for your support over
all these years, and ask you to understand that this is the first time that
this has happened to JG Construction and can only hope that your support
for us has not diminished due to this.”…,.
On 18 October 2010, the respondent issued summons in the
High Court for the recovery of the outstanding amount.
The appellant's defence, as pleaded, is that the respondent
had sued the wrong entity and that the proper defendant was Chikwenya Safari
Lodges/Mr Hingeston….,.
THE FINDINGS
OF THE COURT A QUO
The learned Judge, having heard evidence from Kevin Weare and Alexander Van
Leehoff (on behalf of the respondent, plaintiff in the court a quo) and Cobi
Summerfield (for the appellant) , preferred the evidence led on behalf of the
respondent and found that the probabilities were in the respondent's favour.
He found that the appellant changed its defence depending
on when it was presented. For example, in the appellant's plea and the summary
of evidence proposed to be led at the trial, the appellant was adamant that the
credit sale agreement was concluded by the respondent with HHK Safaris and not
with itself. When it became apparent that there was no privity of contract
between the respondent and HHK Safaris, Cobi Summerfield sought, in evidence,
to argue that the agreement was concluded with Diverse Enterprises and that HHK
Safaris merely made arrangements to pay. He found, further, that all the
evidence pointed to the liability of the appellant; for example, the account
was in its name and from that account it ordered various goods using references
of its clients. While the invoices were drawn in the name of Diverse Enterprises
it had not been shown that Diverse Enterprises was more than just a trade name
or that the latter operated from a separate account from that of the appellant.
In any event, Kevin Weare's evidence, that the invoices were issued in that
name for tax purposes, was not rebutted by the appellant. He found that the
appellant and Diverse Enterprises were run by one person, Cobi Summerfield, and
that the two appeared to have been 'fishing from one pond, an account in the
name of the defendant.”…,.
THE ISSUE ON
APPEAL
The main issue to be determined on appeal is whether the
court a quo was correct in holding that the appellant was liable to pay the
amount claimed or whether another entity was, in fact, the correct defendant.
Counsel for the appellant sought to convince the court that
the findings of the court a quo, as set out above, were wrong. He maintained
that a wrong entity had been sued and, at the beginning of his argument,
submitted that Diverse Enterprises was the correct defendant. He later submitted
that HHK Safaris was the correct defendant. Indeed, he followed the pattern set
by the appellant at the trial before the court a quo.
He vacillated.
As I see it, two hurdles confront the appellant;
(i) The first is, that in the light of the clear and
straightforward case presented by the respondent, the court a quo cannot be
faulted for preferring the latter to that of the appellant which changed at its
convenience.
(ii) The second is the approach of this court, on appeal,
to factual findings made by a lower court. It is, that an appellate court will
not interfere with such findings unless they are irrational or clearly wrong or
so outrageous in their defiance of logic that no reasonable tribunal applying
its mind to the same facts would have arrived at the same conclusion.
See HERBSTEIN and VAN WINSEN, The Civil Practice of The
Superior Courts…,; Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…,;
Metallon Gold Zimbabwe v Golden Million SC12-15.
Nothing in the grounds of appeal, or the submissions made
before us by counsel on behalf of the appellant, has established a basis for
interference by this court with the judgment of the court a quo.
The appeal is accordingly dismissed with costs. 