Christopher Chimuti v Fabian Jaya

### Preamble
1
HB 197./20
HCA 37/19
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CHRISTOPHER CHIMUTI

Versus

FABIAN JAYA

IN THE HIGH COURT OF ZIMBABWE

MOYO & DUBE-BANDA JJ

BULAWAYO 18 MAY & 24 SEPTEMBER 2020

Civil Appeal

Mupfiga for the appellant

Mawere for the respondent

MOYO J:	This is an appeal against the decision of the magistrate sitting in Gweru.  The grounds of appeal are that:

“1.	The court a quo erred in granting the application for absolution from the instance, when the same did not find favour in the law.

The court a quo grossly misdirected itself in absolving the plaintiff’s claims, when the plaintiff’ had established a prima facie case with facts supportive of his cause and warranting the defendant to be placed on his defence to rebut the claims”.

The appeal was dealt with on 20 May 2020 and an ex tempo judgment was given on that day.  The appellant has since requested for written reasons for the judgment.  Here are the reasons:

Plaintiff’s claim against the defendant was for a sum of $4 507,00 being damages for the acquisition of a new engine owing to poor workmanship in the repair and maintenance of plaintiff’s motor vehicle and the failure to observe a degree of care consequential from the failure to ably perform in terms of an agreement entered into with the defendant, which amount despite demand defendant has refused/failed/neglected to pay.

The payment of US$5 016,00, being the calculable  pecuniary loss and diminution of business resulting  from the defendant’s unlawful and culpable conduct.  Plaintiff’s claim is thus set in 2 phases.  Claim A relating to the acquisition of the new engine and claim B relating to damages per the diminution of business.  At the hearing of the matter we set aside the granting of the absolution from the instance on claim A and upheld the granting of the absolution from the instance on claim B.

From the evidence led before the court a quo, defendant was contracted by plaintiff to fix plaintiff’s engine.  The motor vehicle was driven to defendant’s premises wherein defendant set apart the engine in his repair work.  The engine was subsequently not repaired.  Plaintiff led evidence to try and show that defendant was liable for the mess resulting in his failure to fix the engine.  Defendant denied any liability in his plea and that the parties agreed to convert the motor vehicle from an electric system to a manual.  Defendant also alleged in his plea that plaintiff’s mechanic tempered with the electric system precisely the computer box and caused further damages to the motor vehicle.

It is not in dispute that plaintiff contracted defendant to fix his engine.  What is not clear, however, are the terms and conditions of the agreement, whether they were fulfilled by either party or not.  What is clear though is that plaintiff’s motor vehicle was driven to defendant’s repair yard whereafter the engine was dismantled and a broken rocker arm was then found.  It is not clear whether the broken rocker arm was so broken by the defendant or not, the mechanic from Duly’s tried to give an opinion which could however not be held to be conclusive.  What remains is that evidence was led by the plaintiff that he instructed defendant to repair his motor vehicle engine, which engine was running at the material point, which defendant then dismantled and did not repair as agreed.  The defendant gives various reasons for his failure to repair the engine, which is the reason why absolution could not be granted on this claim.  Allegations have been made of a repair agreement gone wrong, the defendant surely must answer as to his part.  If the engine could not be repaired due to interference by other mechanics at the instance of the plaintiff, or if the engine  spares were not available whatever reason for failure to repair the engine, surely defendant must answer to that and tell the court his side of the story.  It does not matter that perhaps at the end of the trial the court may still dismiss plaintiff’s claim for not having been proven on a balance of probabilities, but if allegations have been made evidentially against a defendant surely he must answer them, even if he were to do so successfully.  In this case the joint pre-trial memorandum filed by the parties on 22 May 2018, under claim A item 4 which is “Whether or not plaintiff’s vehicle suffered damages at the hands of other mechanics before and after it had been repaired by defendant”.  On this issue onus is placed on the defendant by the same memorandum.  How could the court then grant absolution from the instance and absolve the defendant from answering plaintiff’s claim yet defendant also has an onus to discharge on an issue in the claim?

It was thus our view that defendant should have been put on his defence to answer for the allegations of failing to deliver after having been duly contracted, moreso given the fact that the joint memorandum also places an onus on him..  It is for these reasons that the absolution from the instance on claim A was dismissed on appeal.  In essence that means the court a quo should have placed the defendant on his defence to answer that claim.

In relation to claim B, the absolution from the instance was upheld for the simple reason that, plaintiff failed to lead even the  thinnest grain of evidence on the damages that he suffered under claim B.  Plaintiff did not lead evidence at all on the quantum of the damages suffered by him.  He was questioned as to whether he kept any records of the damages he said he kept none.  He said he had a book where he recorded the losses but he did not produce it in court.  He also said he was not keeping any records.  Plaintiff told the court that he could not remember how he arrived at the damages claimed under claim B so that is a figure he just plucked out of his head as the record would show.  Absolutely no evidence was led in relation to claim B warranting that defendant answers same because plaintiff failed to establish any quantum that defendant would be liable to pay.  It is for that reason that the granting of absolution from the instance in relation to claim B was upheld.  In relation to claim B there was thus absolutely no evidence wherein a reasonable court acting carefully might find for the plaintiff.  In essence it follows that plaintiff’s  claim B is dismissed.

It is for these reasons that an order was made in the following terms:

That the appeal succeeds in part to the extent that the judgment of the court a quo is set aside and substituted with the following:

The application for absolution from the instance is dismissed in relation to claim A.

The application for absolution from the instance is granted in relation to claim B.

Costs shall be in the cause.

Dube-Banda J ……………………………………. I agree

Gundu Dube & Pamacheche c/o Dube Tachiona & Tsvangirai, applicant’s legal practitioners

Mahamba Law Firm, respondent’s legal practitioners