Jaison Jena v Vayula A.M. Campbell

### Preamble
1
HB .217/20
HC 77/19
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JAISON JENA

Versus

VAYULA A.M. CAMPBELL

IN THE HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 8 SEPTEMBER & 8 OCTOBER 2020

Civil Trial

L. Mpofu, for the plaintiff

V.J. Mpofu for the defendant

KABASA J:	 On 21st July 2017 the plaintiff bought a freightliner truck horse registration number ADS 1496 from the defendant and an agreement of sale was concluded between the parties.  The agreement was reduced to writing.  About a year later, on 17th July 2018 the plaintiff again bought a triaxle semi-trailer registration number ADS 9648 from the defendant and the agreement of sale was also reduced to writing.

With any acquisition of valuable assets which involve the transfer of ownership, such transfer marks the conclusion of the buyer – seller relationship, with each one discharging their respective obligations.

In casu, the plaintiff alleges that he discharged his obligation as he paid for the truck and the trailer in full.  The defendant has however failed to effect transfer of ownership of the truck.  Unhappy with the defendant’s conduct, the plaintiff issued summons out of this court for:

“(a)	An order compelling defendant to sign all the relevant documents to effect transfer to plaintiff of a freightliner truck horse registration number ADS 1496 and a triaxle semi-trailer registration number ADS 9648 which defendant(plaintiff?) purchased and paid for in full.

(b)	In the event of failure by defendant to comply with (a) above, the Deputy Sheriff, Bulawayo be and is hereby authorized and directed to sign all the relevant papers to effect transfer of freightliner truck horse registration number ADS 1496 and triaxle semi-trailer registration number ADS 9648 into the name of the plaintiff.

(c)	An order for payment of costs of suit on an attorney-client scale only if defendant opposes the summons.”

In his declaration the plaintiff alleges that he entered into an agreement of sale for the purchase of the truck on 21st July 2017.  The purchase price was $10 000 and he paid $6 500 deposit, leaving a balance of $3 500.  The balance was payable by 21st August 2017.

Soon after purchasing the truck, the plaintiff hired a triaxle trailer from the defendant at a fee of $600 per month. The plaintiff thereafter offered to purchase the trailer after paying the full purchase price for the truck and the defendant agreed to sell it at $9 900.  An agreement of sale was then signed on 17th July 2018.  Thereafter the plaintiff paid the full purchase price.

The defendant has reneged on the agreement by refusing to change the names on the registration books into the plaintiff’s name.

In response to this claim, the defendant accepted that full payment for the trailer was received and the plaintiff was duly presented with the necessary documents to enable him to have the trailer registration book changed into his name.  However the balance of $3 500 for the truck is yet to be paid and until such payment is made, the plaintiff cannot demand for a change of name to be effected in the registration book.

In a joint pre-trial-conference memorandum, the parties agreed on the following issues:

Whether or not plaintiff is entitled to transfer and ownership of the freightliner Hiace registration number ADS 1496.

Whether or not plaintiff paid the full purchase price for the freightliner Hiace in terms of the agreement between the parties.

In an endeavor to prove his case, the plaintiff testified and produced documentary exhibits.  The gist of his evidence was that he purchased the truck on 21st July 2017 and paid $6 500 as deposit.  The balance of $3 500 was to be paid by 21st August 2017 but he paid it in 3 installments, the first two before the due date and the last installment after the due date.  All the payments for the truck were in bond notes except for $300 which was in United States dollars.  Although he also wanted to buy the trailer financial constraints were a hindrance and so he opted to hire it at a fee of $600.  He eventually bought the trailer after paying for the truck in full.  He however did not receive acknowledgment of the payment of the $3 500 balance for the truck.

In University of Zimbabwe v Mutasa and Others SC-157-93 the court had this to say:

“It is a trite rule of evidence that he who alleges must prove what he alleges.  The party who assails the truth of an allegation thereby raising the presumption that what he has asserted is true puts upon himself the onus of proving that assertion i.e. the onus of adducing sufficient and satisfactory evidence in support of the assertion.”

The plaintiff has to prove his case on a balance of probabilities. Did he discharge this onus?

The real issue in casu was whether the $3 500 was paid.  The defendant’s husband who was privy to everything that happened with regards to the sale testified to the effect that the $3 500 was never paid.

His testimony disputed the plaintiff’s assertion that the $10 000 was to be paid as either bond notes or USD as at that time the rate was at 1 : 1. Had the plaintiff paid the $3 500 he would have received an acknowledgement just as he received one when he paid the $6 500.  The freightliner truck horse could not have been sold for $10 000 bond notes as such amount was never equivalent to $10 000 USD and that is why the agreement of sale specifically said “United States Dollars Only”.  The ‘only’ referred to the currency and not the amount. This was the gist of the defendant’s witness’s testimony.

Whilst it is accepted that the plaintiff need only prove his case on a balance of probabilities and not beyond a reasonable doubt, the point is did the plaintiff discharge that onus?

He would have the court believe that he paid $6 500 as deposit and received an acknowledgement of such payment.  He however had bought other vehicles before from the defendant and so when he paid off the balance of $3 500 he did not receive acknowledgement and was not fazed by that.

The plaintiff is a businessman who owns his own trucks.  This is the line of business he thrives on and so one expects him to be astute and run the business as expected of any business person.

Why would he consider it necessary to have an agreement of sale wherein the $6 500 deposit is acknowledged with the balance put at $3 500 and then pay such balance but not be keen to have that acknowledged as well?  He says $3 500 was equivalent to $3 500 USD which means it was a substantial amount of money by any standard.  He did not pay the $3 500 as agreed i.e. by 21st August 2017 but he did so over 3 installments, 2 before 21st August 2017 and the last one after 21 August 2017.  He however could not remember when such payments were made.  Is this what one would expect of a businessman who had agreements of sale drawn up, not only for the truck but for the trailer as well?  I think not.  The parties even had the hire agreement for the trailer reduced to writing before the plaintiff purchased it.  When he finally purchased it the agreement of sale was reduced to writing.  Such conduct speaks of parties who appreciated the importance of reducing their business agreements to writing.

The defendant’s husband’s testimony therefore made a lot of sense when he said the plaintiff said he needed receipts for all payments made for purposes of his records.  Such an assertion accords with the probabilities of the matter.

Further, as regards the currency, the agreement of sale for the trailer put the price at $9 900 but the one for the truck specifically mentioned that: -

“I, Vayula A.M. Campbell have sold my vehicle to Jaison Jena on a voetstoets basis for the set cash price of $ 10 000 United States Dollars Only, $6500 paid as deposit and balance of $3 500 to be paid by 21st August 2017”.

The one for the trailer has no such qualification.  Why the difference?

The plaintiff would have the court believe that everything was done on the understanding that the bond note was equivalent to 1USD.  If that was so and that is what the parties agreed on, why were the agreements worded differently?

I must say this court is not looking at whether the $3 500 was paid and the discord was only on the currency used.  If that was what this case was about then counsel for the plaintiff’s argument would make sense, that the law regarded I bond note as equivalent to 1 USD and so $3 500 bond notes would be equivalent to $3 500 USD. (Zambezi Gas Zimbabwe (Private) Ltd v N. R. Barber (Private) Ltd and Another SC-3-20)

The contentious issue  however is that the $3 500 was not paid and the defendant has therefore not released the documents the plaintiff requests to effect change of ownership of the truck because that balance is still outstanding.

It would have put a different complexion to the matter had the plaintiff said he paid the $3 500 and he was able to prove that assertion. He lacked credibility and the absence of documentary proof did not help his cause.

On the contrary the defendant’s version sounds very probable.  The defendant’s husband said they could not have sold their freightliner truck horse for $10 000 bond notes as they never considered a bond note as at par value with the USD.  No one was selling their motor vehicles for bond notes.  Whether that was legal or not is not the issue here but what the parties were working on and agreed on.

It is important to note that the defendant’s husband appeared oblivious of the legal issues surrounding the monetary policy which culminated in SI 133 of 2016 and the amendments to the Reserve Bank of Zimbabwe Act, Chapter 22:15 which effectively gave a rate of one-to-one between the United States dollar and the RTGS dollar and bond note.

The witness “innocently” explained that the plaintiff pleaded financial incapacity and at one time showed them that the truck horse had been dismantled and was therefore finding it difficult to honour the payment of the $3 500 balance.

“We understood his problem, he said the horse was not working as his driver blew up the engine and we even went to his workshop to look at the engine which was in pieces and we understood he was struggling.”

The witness equally explained why they accepted a total of $14 200 through bank transfer for the trailer.

“We found he was failing to pay $3 500 USD already and we knew it was not easy to get USD and we knew Natfoods was paying him via bank transfer and trailer was not in that good a state.  It needed work.  ……  He had already paid $4 200 but he still owed $600 for February rentals, so $9 900 and $4 800, in all came up to about $14 000.”

The $14 000 was accepted because the seller was happy with that amount given the state of the trailer.  The amount was also much more than the initial $9 900 as it now factored in the $4 800 paid as rentals before the purchase.

I got the distinct impression that the defendant’s witness was merely telling the truth as he knew it. He impressed me as a witness who was being honest and candid in his admission that he was not aware of a law which stopped him from demanding USD and so was expecting 3500 USD as per agreement, which amount was never paid.

“The demeanor of a witness, although always relevant and sometimes a very important factor in the final determination of disputes of fact, is notoriously fallible as a decisive ground. …  It is always the court’s function and duty to test the apparent sincerity of such a witness by such means as are available to it and the most important of such means is almost invariably a close examination of the content of the evidence given and the degree of its harmony with the inherent probabilities” (MILLER J in S v Dladla 1974 (2) SA 689)

In casu, it was not only the demeanor of the defendant’s husband but the very manner in which his testimony flowed, his explanations regarding the purchase of the 2 vehicles and the reason why the trailer presented no problems sounded more probable compared to the plaintiff’s story.  The defendant had no onus to discharge; it was the plaintiff who had to prove his case, albeit on a balance of probabilities.

Mr. L. Mpofu submitted that as there was no proof of the payment of $3 500 from either side, the court was left to rely on circumstantial evidence to reach a conclusion as to which side of the two versions is reasonably probably true.

In AA Onderlinge Assurance Bpk v De Beer 1982 (2) SA 603, it was held that a plaintiff who relies on circumstantial evidence does not have to prove that the inference which he asks the court to draw is the only reasonable inference; he will discharge his burden of proof if he can convince the court that the inference he advocates is the most readily apparent and acceptable inference from a number of possible inferences.

The evidence Mr. Mpofu relies on is that the plaintiff only bought the trailer some 10 months later as he could not raise the purchase price for both trailer and horse.  It therefore follows that he could only have bought the trailer after paying for the horse in full, so he argued.

This should not be considered in isolation but with due regard to what the defendant’s witness had to say.  In light of that explanation which I have already alluded to, it cannot be said the plaintiff’s explanation and inference he seeks this court to draw is the most readily apparent and acceptable.  The defendant’s witness explained that they accepted bond notes for the trailer because,

“A truck and a trailer are completely different.  He begged us because he could not pay the USD balance so he asked that we sell the trailer so he could pay for the truck.”

This explanation accords well with the probabilities and whilst the inference to be drawn in civil matters need not be the only reasonable one, the court is unable to say the fact that the plaintiff was able to buy the trailer could only mean that he had managed to pay in full for the truck horse.  Such an inference could be drawn in circumstances where the court did not have the benefit of the defendant’s side of the story, which story was more probable in the circumstances.

I can do no more than quote this effortless response given by the defendant’s witness when it was suggested to him that he was taking advantage of the fact that no receipt was issued for the $3 500 to turn around and say it was never paid.  The witness responded;

“We would have acknowledged the $3 500 and even give him the new agreement of sale showing $10 000 paid in full.  No one can pay USD3 500 and not get a receipt, impossible. He even came to say we are not allowed to ask for USD and we refused and said the agreement says USD and we will not change that.”

Asked whether the $3 500 was tendered in bond notes at some stage and he refused to accept it, the witness said:

“He said he could not raise the USD as it was now hard to do so on the streets and we said we agreed on USD.”

I was impressed with this witness, his candidness was disarming.  The same cannot be said about the plaintiff.  His case would have been different had he managed to prove that he did pay $3 500 in  bond notes and that ought to be considered as a final and full settlement of his indebtedness because of what the law says with regards to all liabilities and assets expressed in United States Dollars immediately before 22 February 2019.

I am therefore not satisfied the plaintiff proved his case which entitles him to the relief he seeks.  Without proof that the $3 500 was paid, never mind the currency of payment, how can this court rule that he is entitled to own the truck horse?  It cannot and that is the end of the matter.

In the result, the plaintiff’s case is dismissed, with costs.

Malinga & Mpofu Legal Practitioners, plaintiff’s legal practitioners

V. J. Mpofu & Associates, defendant’s legal practitioners