GUVAVA
JA:
This
is an appeal against the entire judgment of the High Court sitting at
Harare dated 30 March 2016 wherein it was held that there was a valid
and binding surety agreement between the appellant and the
respondent. On that basis the appellant was ordered to pay the
respondent the sum of US$37,497.42.
BACKGROUND
FACTS
The
brief facts of the matter may be summarised as follows:
On
28 December 2006, the respondent, Total Zimbabwe Limited and a
company known as SM Tyres (Pvt) Ltd (hereinafter referred to as SM
Tyres) entered into a marketing licence agreement in terms of which
SM Tyres was permitted to enter, operate and utilize one of the
respondent's service stations at Nyamapanda Border Post. Following
the agreement between the respondent and SM Tyres, the appellant and
one Shadreck Mawire entered into a surety agreement on behalf of SM
Tyres.
In
terms of the agreement SM Tyres was entitled, among other things, to
purchase petroleum based products exclusively from the respondent. SM
Tyres was granted a credit facility for the supply of the products
and it was obliged to make daily payments of all sale proceeds into
the respondent's bank account. It was also to pay all taxes and
rates charged in respect of its use of the service station.
SM
Tyres failed to honour its obligations in terms of the credit
facility as it did not settle an outstanding balance for fuel
deliveries, electricity bills, unit tax for water reconnection and
the Environmental Management Agency application fees which resulted
in SM Tyres attracting a spot fine for storing fuel without a
licence. The debts that accrued to the service station during the
time that SM Tyres operated it amounted to US$37,497, 42.
On
26 July 2011, the respondent terminated the agreement and demanded
payment of the amount owing. On 12 June, 2012 the respondent obtained
judgment against SM Tyres in judgment number HH245/12. SM Tyres
failed to pay.
Having
failed to obtain its money from SM Tyres, the respondent then issued
summons in March 2014 out of the High Court against the appellant for
payment of the amount owing because SM Tyres had failed to pay the
judgment debt. It sued on the strength of a surety document. It
alleged that the appellant and Shadreck Mawire stood as sureties on
behalf of SM Tyres as was required of SM Tyres when it signed the
marketing licence agreement. The appellant denied having stood surety
for SM Tyres and the matter proceeded to trial.
The
respondent's sole witness, Esther Verenga, the General Trade
Manager for Total Zimbabwe, testified that the respondent entered
into an agreement with a company called SM Tyres trading at
Nyamapanda Service Station. She averred that she was not responsible
for the preparation of the surety document because a template was
used. She further testified that she was not present when the
document was signed neither was she aware of who was present at the
signing of the agreement. She however stated that the surety document
had a signature belonging to the appellant and his contact details.
She stated the amount that was owing and how it had accrued.
At
the end of the respondent's case, the appellant applied for
absolution from the instance. The appellant's argument was that the
respondent's witness was not present when the surety document was
either prepared or signed therefore the evidence she presented before
the court could not be relied upon. It was also his argument that the
marketing licence agreement presented to the court made reference to
a “licencee” yet the principal debtor in the surety document was
referred to as an “operator”. The appellant argued that the
respondent had failed to prove a prima
facie
case against him. The application was opposed and subsequently
dismissed.
The
matter proceeded to the defence case on the basis that since the
appellant did not dispute signing the surety document, the onus now
lay on him to show that he had not stood as surety for SM Tyres.
The
appellant testified that he did not owe the respondent because he
stood as surety for a company known as Limpopo Investments and not
for SM Tyres. He testified that he did not know SM Tyres. He signed a
surety agreement at the request of a friend, one Mr Wycliffe Chiunda
(Chiunda) who, at that time, was a Marketing Executive with the
respondent. Limpopo Investments was Chiunda's company and he wanted
a surety agreement in order for him to negotiate with the respondent
so that he could use the respondent's Nyamapanda Service Station.
The
appellant admitted that he wrote his name and that of Shadreck Mawire
on the surety document. He confessed that he did not know Shadreck
Mawire but the name was dictated to him by Chiunda. When Shadreck
Mawire subsequently signed the document the appellant was not
present. He accepted having endorsed his contact details on the
document and the name Nyamapanda Service Station. He denied having
been present when the witnesses signed and when the document was
dated. It was his position that he signed the document in 2004 as
opposed to 2006 the date that appeared on the document.
The
appellant denied ever seeing the marketing licencing agreement that
the respondent referred to. Upon being asked if he could produce the
marketing licence agreement which related to Limpopo Investments he
stated that he was not in a position to do so. He stated that Chiunda
had communicated to him that there had been a mix up at the office
which is why the two documents were together.
Chiunda
was not one of the witnesses that testified in court on behalf of the
appellant. The appellant stated that there was an affidavit from
Chiunda which could substantiate his story but it was not produced
before the court a
quo
as evidence. It was also his evidence that the failure to endorse
“Limpopo Investments” on the surety document was an oversight on
his part.
The
court disbelieved the appellant and judgment was entered against him.
Aggrieved by the decision of the court a
quo
the appellant launched the present appeal.
ISSUES
FOR DETERMINATION
It
seems to me, from the grounds of appeal, that the following issues
arise for determination in this matter.
1.
Whether the Appellant bound himself as surety for SM Tyres when he
signed the surety agreement?
2.
Whether the court a
quo
erred in holding that the onus lay on the appellant to prove that he
had signed for Limpopo Investments and not SM Tyres.
3.
Whether the respondent's single witness was credible?
4.
Whether judgment entered against the principal debtor novated the
appellant's liability as surety?
5.
Whether the court a
quo
erred by not granting absolution from the instance at the close of
plaintiff's case (herein respondent)?
1.
Whether the Appellant bound himself as surety for SM Tyres when he
signed the surety document?
In
determining this issue I will first consider what constitutes a valid
surety and whether or not the agreement in question met the
prescribed requirements. In the event that I find that it does, I
will then consider whether appellant bound himself as a surety for SM
Tyres when he signed the suretyship document.
According
to Caney LR, Forsyth CF and Pretorious JT,
Caney's The Law of Suretyship in South Africa, (Juta
and Co, 2010) a suretyship involves three parties; the creditor, the
principal debtor and the surety. It is a contract between the surety
and the creditor in terms of which the surety binds himself to
perform the obligations of the principal debtor to the creditor, if
the principal debtor fails in whole or in part to fulfil his
obligations. Suretyship is a contract and as such the principles of
contract law apply to suretyships. The requirements of the suretyship
are as follows; the identity of all parties (that is:-creditor,
principal debtor and surety); and the nature and amount of the
principal debt. It is important to note that all three parties must
be different parties as a person cannot stand surety for his own
debt.
Having
examined the above I am satisfied that the agreement signed does meet
the requirements of a valid suretyship. The creditor was Total
Zimbabwe Limited, the principal debtor was SM Tyres and the sureties
are in the person of the appellant and Shadreck Mawire. It was a
written document and all parties were clearly identified. I therefore
turn to the second part of the question before me.
It
is not in dispute that the appellant signed a surety document. It is
also not in dispute that it was the appellant who wrote his name and
that of Shadreck Mawire on the surety document. Further, the
appellant is the one who entered the name Nyamapanda Service Station
on the document. Having done so, the appellant went on to put his
contact details and signature to the document.
What
appears to be in dispute however, is, on whose behalf was the surety
document signed. The appellant alleges that the surety document that
he signed was on behalf of Limpopo Investments and not SM Tyres. He
alleges that his friend, one Chiunda, is the one who asked him to
stand as surety for his company, Limpopo Investments. Having made
those submissions no further evidence was adduced on his behalf to
support his averments. He simply made an averment to the court a
quo
that he had an affidavit in his possession that had been deposed to
by Chiunda but the affidavit was not produced in court. Chiunda was
not called by the appellant to testify.
It
seems to me that the appellant could only have escaped liability if,
having realized that he had signed a document on behalf of someone he
had not intended, he had sought to rectify the surety document. The
remedy for persons who find themselves in a position that the
appellant purports to have been, that of signing a document thinking
that it is meant for one thing when in actual fact it means another,
is the defence of rectification. According to Caney LR, Forsyth CF
and Pretorious JT,
Caney's The Law of Suretyship in South Africa, (Juta
and Co, 2010) p 73-74 “extrinsic evidence...in regard to the
central issue of consensus may be admissible when one of the parties
seeks rectification of the suretyship document.”
In
the case of Northern
Cape Co-operative Livestock Agency Ltd v John Roderick and Co Ltd
1965
(2) SA 64 (O)
it
was stated that, with rectification, the party seeking to have the
contract rectified claims that the contract does not reflect what the
parties agreed on and seeks to have the matter put right. Clearly
this is a matter of evidence and it was imperative that Chiunda must
have testified in support of the appellant's case.
In
casu,
the
suretyship document that was the centre of this dispute contained the
relevant elements that formed a binding suretyship agreement. The
principal debtors, the amount of the debt and the creditor were all
clearly identified. Prima
facie,
the document substantially met the requirements of a valid suretyship
document therefore it was binding. The only way that the appellant
could have escaped liability was through rectification.
The
appellant could have led evidence in order to rectify the agreement
but chose not to do so. It seems to me that the only logical
conclusion under the circumstances is that the appellant was fully
aware about what he was getting himself into when he signed the
document in question. The court a
quo
cannot therefore be faulted in finding that the appellant bound
himself as surety in accordance with the agreement.
2.
Whether the court a
quo
erred in holding that the onus to prove that the appellant was surety
for Limpopo Investments and not SM Tyres was on appellant
Under
the law of suretyship, a surety who seeks to escape liability for one
reason or another has the onus to prove his defence. In the case of
Tesoriero
v Bhyjo Investments Share Block (Pty) Ltd 2000 (1) SA 167
the
court held as follows:
“Where
a party who has signed a contract wishes to escape liability on the
ground of justified error as to the nature or contents of the
document he must show that he was misled as to the nature of the
document or as to the terms of which it contains by some act or
omission of the other party.”
In
the case of Langeveld
v Union Finance Holdings (Pty) Ltd 2007 (4) SA
572 (W), the court held that the onus was on a surety to prove that
he was not aware that he was signing a document as a surety. The
court further held that there was a strong praesumptio
hominis
that anyone who has signed a document, has the animus
to enter into the transaction, and this person was burdened with the
onus of convincing the court that he or she had not in fact entered
the transaction.
In
the case of Prins
v ABSA Bank Ltd 1998
(3) SA 904 (C)
a
surety sought to rely on the defence that he believed at the time of
signing the surety agreement, that it was for a limited duration and
a limited amount yet in actual fact he had signed for an unlimited
amount and an unlimited period. The onus was placed on him to prove
that it was unreasonable to allow the creditor to rely on unlimited
suretyship.
Although
the above cited cases are not on all fours with the facts of this
case, it is quite clear that the legal principle is the same.
The
respondent's claim was clear and unequivocal. The respondent
tendered the requisite evidence which showed that appellant had
signed a suretyship document on behalf of SM Tyres. Applying the
above cases it became the appellant's duty to refute that evidence.
The appellant failed to explain why there was no reference to Limpopo
Investments on the surety document. He simply attributed this
material omission to oversight on his part. As a result of that
oversight the appellant bound himself to pay SM Tyres' debts. He
also argued that the information relating to his domicile was not
accurate and therefore he was not liable. However, the suretyship
agreement shows his domicile as at 2004 and not his current address.
In my view this argument is without substance because the agreement
was entered into in 2004. The fact that he subsequently relocated is
immaterial.
In
view of the above, the first and second grounds of appeal have no
substance and the court a
quo
correctly found that the appellant had the onus to prove that the
surety document that he signed was not on behalf of SM Tyres.
3.
Whether the respondent's single witness was credible?
In
the proceedings a
quo
the respondent (who was plaintiff a
quo)
led evidence from a single witness, Ester Verenga. It was submitted
on behalf of the appellant that the court a
quo
erred in holding that respondent's sole witness was credible and
lacked probity. He further averred that the sole witness's
credibility was negated by the fact that she proffered no direct
evidence with regards to the facts in issue.
In
my view the presence or otherwise of the respondent's witness when
the surety agreement was either prepared or signed is
inconsequential. What is clear is that the appellant failed to
produce evidence that substantiated his defence.
The
entire respondent's case was based on the evidence of a single
witness, Ester Verenga, the General Trade Manager for the respondent.
The appellant challenged the credibility of this witness on the
grounds that she was not present when the agreements were signed.
The
law relating to a single witness was set out in
R
v Mokoena 1956 (3) SA
81 (A) at 85-86.
It
was held that:
“The
uncorroborated evidence of a single witness should only be relied
upon if the evidence was clear and satisfactory in every material
respect. Slight imperfections would not rule out reliance on that
evidence but material imperfections would…..However, in the latter
case of S v Sauls & Ors 1981 (3) SA 172 (A) the Appellate
Division stated that there was no rule of thumb to be applied when
deciding upon the credibility of single witness testimony. The court
must simply weigh his evidence and consider its merits and demerits.
It must then decide whether it is satisfied that it is truthful,
despite any shortcomings, defects or contradictions in that
testimony. The approach adopted in the Sauls case was followed in the
case of Nyabvure S-23-88. See also Worswick v State S-27-88, S v
Mukonda HH-15-87, S v Nemachera S-89-86 and S v Corbett 1990 (1) ZLR
205 (S).”
The
evidence of a single witness was also discussed by BECK JA in his
article in the 1986
Vol 1 No 1 Prosecutors Bulletin at
p
18 where he says:
“In
assessing the quality of the single witness' evidence, to decide
whether the accused should be convicted on the basis of this
evidence, the court should be most attentive to the nature of the
witness, looking at his apparent character, his intelligence, his
capacity for observation, his powers of recall, his objectivity
and
things like that. The evidence should be carefully weighed against
the objective probabilities of the case, and against all the other
evidence which is at variance with it. The court must have rational
grounds to conclude that the evidence of the single witness is
reliable and trustworthy and is a safe basis for convicting the
accused.”
The
court a
quo,
stated on page 3 of the judgment as follows:
“The
respondent's witness maintained her story under cross examination.
The witness gave her evidence well. Although this was a single
witness case, the evidence of the witness was clear, truthful and
satisfactory. Her version was corroborated by the contents of the
surety document and other documents produced. She was a credible
witness and I believed her.”
It
is trite that an appellate court will not lightly interfere with
findings of credibility by a lower court unless such findings are
clearly unreasonable and not supported by the evidence led. This is
because the trial court will have had the opportunity to see the
witness and make its assessment. In
casu,
the evidence adduced by the respondent's witness was clear and
unequivocal. She stated that at the time the respondent entered into
the agreement with SM Tyres she was not yet the General Trade Manager
but the Retail Manager. She further stated that she was aware of the
agreement that was entered between the respondent and SM Tyres as
well as the surety agreement entered on behalf of SM Tyres by the
appellant and Shadreck Mawire. Although she was not present when the
agreement was drafted and signed she confirmed that the agreement was
available and produced it before the court. Her evidence was in
accordance with the undisputed evidence that was before the court and
it accordingly was satisfied that she was a credible and reliable
witness.
On
the other hand the court a
quo
found that the appellant was not a candid witness. The court found
that considering his level of education he should have grasped the
repercussions of entering into a surety agreement in the manner that
he did. His failure to write Limpopo Investments and attributing the
failure to an oversight was not truthful. The only conclusion that
this court can make is that the appellant was well aware to whom he
was standing as surety.
The
appellant also based his defence on Chiunda, a former Marketing
Executive of the respondent indicating that it was Chiunda who had
asked him as a favour to stand as surety for his (Chiunda's)
company called Limpopo Investments yet he failed to call Chiunda to
corroborate his evidence.
In
light of the above, the court a
quo
was correct to query his credibility considering his level of
intelligence. The court a
quo
correctly took into account the educational qualifications that the
appellant possessed. It was therefore not unreasonable for it to
expect him to know the consequences of affixing his signature to the
contract.
In
this respect the judge a
quo
held that:
“A
litigant who challenges a surety deed on the premise that he signed
it for a different entity or person can only discharge the onus
resting upon him to show that he never intended to sign the document
on behalf of the plaintiff and be bound by it by calling evidence to
support his assertion. He is required to do more than make a bare
denial of the surety deed or simply make a challenge to the surety
deed and leave it there. It was incumbent upon the defendant to call
Mr. Chiunda to show that the deed was done for Limpopo Investments
and that he indeed did sign the deed for Limpopo Investments. The
defendant failed to call Mr. Chiunda to come and substantiate his
version and hence the defendant failed to discharge his onus…..”
In
light of the above, the court a
quo cannot
be faulted in arriving at the conclusion it did.
4.
Whether judgment entered against the principal debtor novated the
appellant's liability as surety?
The
appellant, in his sixth ground of appeal takes the position that the
granting of a judgment against SM Tyres, novated the surety agreement
that established his liability to the respondent. The respondent's
argument is that the granting of a judgment against a principal
debtor does not prohibit a creditor from claiming the same amount
against the surety if the principal debtor has failed to perform.
Novation
was defined by ZIYAMBI JA in the case of Mupotola
v Southern African Development Community SC
7/06
where
she stated as follows:
“Novation
means replacing an existing obligation by a new one, the existing
obligation being thereby discharged. See The Law of Contract in South
Africa Third Ed by R.H Christie at p498. The above definition
presupposes that both the existing obligation and the new one arise
out of valid contracts. When parties novate they intend to replace a
valid contract by another valid contract.
See
Swadif (Pvt) Ltd v Dyke 1978 (1) SA 928 (A) at 940 quoted by Christie
in the Law of Contract in South Africa, supra.”
The
Mupotola
case
(supra)
is to the effect that novation arises where there are two contracts.
In casu,
it
is my view that the judgment against the principal debtor did not
create a new agreement that set aside the suretyship agreement
entered between the appellant and the principal debtor. The approach
suggested by the appellant that where a creditor sues a principal
debtor separately from his surety and judgment is subsequently
entered in favour of the creditor; the surety's obligation is at
that stage discharged is clearly an incorrect position of the law. It
is trite that as long as the judgment debt has not been paid and the
matter has not prescribed the judgment creditor may recover the debt
from a surety.
In
any event, as evidenced in the judgment of the court a
quo,
the issue of novation did not arise before the court a
quo.
The appellant sought to raise it for the first time on appeal. In
respect to raising issues for the first time on appeal CHIDYAUSIKU CJ
in Austerlands
(Pvt) Ltd v Trade and Investment Bank Ltd and Ors SC
80/06
stated
as follows:
“The
general rule, as I understand it, is that a question of law may be
advanced for the first time on appeal if its consideration then
involves no unfairness to the party at whom it is directed. See
Estate Lala v Mohamed 1994 AD 324. The principles applicable to the
raising of a point of law for the first time on appeal were
succinctly set out by KRIEGLER in the case of Donelly v Barclays
National Bank Ltd 1990 (1) SA 375 at 380H-381B, where the learned
judge had this to say:
'…..generally
speaking, a Court of Appeal will not entertain a point not raised in
the court below and especially one raised on the pleadings in the
court below. In this regard I need do no more than refer to Herbstein
and Van Winsen, The Civil Practice of the Superior Courts in South
Africa 3ed at 736-737. In principle, a Court of Appeal is disinclined
to allow a point to be raised for the first time before it. Generally
it will decline to do so unless;
1.
the point is covered by the pleadings;
2.
there would be no unfairness on the other party;
3.
the facts are common cause or well-nigh incontrovertible; and
4.
there is no ground for thinking that other or further evidence would
have been produced that could have affected the point.'”
The
issue of novation was never raised in the pleadings filed a
quo
nor was the issue argued during trial. In my view it is clearly
unfair and prejudicial to the respondent for it to be raised for the
first time on appeal especially in circumstances where the facts are
in dispute.
5.
Whether the court a
quo
erred by not granting absolution from the instance at the close of
plaintiff's case (herein respondent)
The
respondent (then plaintiff) led evidence before the court a
quo
to the effect that the appellant (then defendant) had signed a surety
agreement on behalf of one SM Tyres and produced the surety document
which had been signed by the appellant in support of its claim. After
leading its evidence, the respondent closed its case. The appellant
applied for dismissal of the respondent's case, on the basis that
the respondent's claim, had not been established, as insufficient
evidence had been led to prove that the surety agreement was binding
on the appellant. It was submitted on behalf of the appellant that 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 find for him.
The
appellant argued that the respondent failed to show the link between
the surety agreement presented in evidence and the marketing licence
agreement upon which SM Tyres accrued the debt. Counsel for the
appellant, Mr. Mpofu argued that the onus was on the respondent to
prove its case on a balance of probabilities. As respondent had
failed to do so the appellant should have been granted absolution
from the instance.
I
was not persuaded that the respondent had failed to establish its
case at the close of its case.
It
is accepted that after a plaintiff has closed its case, a defendant,
before commencing his own case, may apply for dismissal of the
plaintiff's claim. Should the court accede to this application, the
judgment will be one of 'absolution from the instance'. See
Cilliers
AC, Loots C and Nel HC, Herbstein and Van Winsen, The Civil Practice
of the Supreme Court of South Africa (4th
edn, Juta and Co Ltd) p681.
A
decree of absolution from the instance is derived from Roman Dutch
law. It is the appropriate order to make, when, after all the
evidence is led the plaintiff has not discharged the ordinary burden
of proof. If at the end of the plaintiff's case there is
insufficient evidence upon which a reasonable man could find for him,
the defendant is entitled to absolution. See LH
Hoffman, DT Zeffert, The South African Law of Evidence (4th
ed) p 507,
who notes the following:
“It
has also been said that the term 'absolution from the instance'
is used to describe the finding that may be made at either of two
distinct stages of trial. In both cases it means that the evidence is
insufficient for a finding to be made against the defendant.”
It
is trite that the court cannot mero
motu
consider whether absolution must be granted at the close of the
plaintiff's case. It is an option which is available to the
defendant, upon application. When an application for absolution from
the instance is made at the end of the plaintiff's case the test is:
what
might a reasonable court do, that is, is there sufficient evidence on
which a court might make a reasonable mistake and give judgment for
the plaintiff; if the application is made after the defendant has
closed his case, the test is: what ought a reasonable court do?
In
deciding what a court may or may not do, there is an implication that
the court may make an incorrect decision, because at the close of the
plaintiff's case, it will not have heard all the evidence.
In
the case of Nobert
Katerere v Standard Chartered Bank Zimbabwe Limited HB 51-08,
the court stated:
“The
court should be extremely chary of granting absolution at the close
of the plaintiff's case. The court must assume that in the absence
of very special considerations, such as the inherent unacceptability
of the evidence adduced, the evidence is true. The court should not
at this stage evaluate and reject the plaintiff's evidence. The
test to be applied is not whether the evidence led by the plaintiff
establishes what will finally have to be established. Absolution from
the instance at the close of the plaintiff's case may be granted if
the plaintiff has failed to establish an essential element of his
claim - Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A);
Marine & Trade Insurance Co Ltd v Van Der Schyff 1972 (1) SA 26
(A); Sithole v PG Industries (Pvt) Ltd HB47-05”.
Since
the respondent was suing the appellant in his capacity as a surety,
all that the respondent had to place before the court a
quo
was that it had a surety agreement which was signed by the appellant
in which the appellant stood as surety for SM Tyres being the debtor
for an amount that the appellant had guaranteed to pay to the
respondent on SM Tyres' behalf in the event that the amount became
owing and that the respondent was a creditor.
Such
evidence was placed before the court a
quo
and that evidence in my view formed a reasonable basis for the court
to find in respondent's favour. The respondent had discharged its
obligation as plaintiff in the proceedings a
quo.
The
finding of the court a
quo
that where a surety challenges an agreement and makes an application
for absolution from the instance at the close of plaintiff's case,
that application cannot, from a practical standpoint succeed, because
once the court is satisfied that a prima
facie
case was established the onus shifted to the appellant was clearly
correct. Whether or not respondent's allegations were true could
only be established by the court after the appellant led evidence to
dispute the respondent's case. The court was satisfied that the
respondent had placed the requisite evidence before the court.
In
a civil case the court has the duty to balance the scales of
probabilities in favour of either the plaintiff(s) or defendant(s).
In this particular case the balance could only be struck after the
court heard both sides of the story. In my view, granting the
appellant absolution from the instance would have been improper. The
appellant's application for absolution from the instance was not
sustainable considering the evidence that has been placed before the
court. It is common cause that the appellant's defence was that he
had signed a surety agreement but it was not for SM Tyres but for
“Limpopo Investments Company”. Under the circumstances the court
could not have asked the respondent to prove appellant's defence on
his behalf. It was appellant's duty to prove his defence. It is
trite at law that a party has to motivate their own defence.
DISPOSITION
It
seems to me that the court a
quo
could not have granted the appellant's application for absolution
from the instance given that the respondent had established a prima
facie
case. During the trial the appellant failed to prove his defence on a
balance of probabilities. He failed to provide evidence before the
court to sustain his arguments. There was no misdirection by the
court a
quo
in accepting the evidence from respondent's single witness as the
court found the witness credible. The issue of novation raised by the
appellant in a bid to evade liability cannot stand because the issue
was never raised in the court a
quo.
The Supreme Court, as an appellate court, save in exceptional
circumstances, only deals with matters that have been dealt with by
the court a
quo.
Its appellate powers do not stretch to dealing with matters as a
court of first instance.
With
regards to costs. The respondent did not seek for costs in the heads
of argument or during the hearing. Accordingly no costs will be
awarded although the respondent has been successful in defending the
appeal.
In
the result I find that the appeal is without merit and it is
accordingly dismissed with no order as to costs.
GARWE
JA: I
agree
BHUNU
JA: I
agree
M.C.
Mukome,
appellant's legal practitioners
Gill,
Godlonton and Gerrans,
respondent's legal practitioners
