Wilson Andrew Wadi T/A M & W Motors v Total Zimbabwe Limited

### Preamble
1
HB 161.19
HC 2801/16
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WILSON ANDREW WADI

T/A M & W MOTORS

Versus

TOTAL ZIMBABWE LIMITED

IN THE HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 16 JULY AND 24 OCTOBER 2019

Civil Trial

W T Davira for the Plaintiff

J Mugova for the Defendant

MOYO J:	In this matter the Plaintiff issued summons claiming:-

a)	 $50 000-00 being damages for the unlawful suspension of the marketing licence agreement.

b) 	$1 350-00 being the reimbursement of the value of plaintiff’s licences used without plaintiff’s consent and authority.

c) 	$64 350-00 being 5% gross turn-over for the unauthorized use of the plaintiff’s licences.

d) 	$25 000-00 being refund of plaintiff’s capital injected into the service station.

e) 	$73 935-29 being payment for losses incurred at the service station due to the defendant’s failure and negligence in monitoring the service station equipment

f) 	$44 283-00 being the reimbursement for over charged rentals for the kiosk in breach of the marketing licence agreement.

These claims are together with a claim for interests at the prescribed rate from the date of summons to date of full payment and costs of suit at a higher scale.  The facts of the matter are that plaintiff was a Total service dealer and had signed a marketing licence agreement with defendant.  The effect of the agreement was that plaintiff ran a service station under the total franchise.  It seems there was the involvement of the defendant in the supply of the petroleum products sold by plaintiff at the service station.  They were also responsible for the maintenance of the equipment and they basically owned the infrastructure at the service station.  Plaintiff avers that since 2004, he then started making losses in running the fuel franchise and in 2015 defendant through its employees decided to investigate these losses.  They advised him to hand over the service station to them so that they investigate the losses.  He did but defendant never handed back the service station to plaintiff.

This was despite the plaintiff’s demands and the fact that the expected period within which they should have concluded their investigations and handed back the station to the plaintiff had long lapsed.  They then told plaintiff that they will not return the service station back to him.

An audit was later done by defendant’s employee.  The defendant’s employee allegedly found that 77% of the losses were due to human error and that 23% of the losses were due to faulty equipment.  The plaintiff challenged the results of the audit and he demanded to go back to the service station.

Plaintiff averred that 5 - 6 months after the investigation defendant then suspended his marketing licence agreement.  He was given the letter of suspension in February 2016.  He did not accept it but signed that he had received it.

He then told the court that he was claiming $50 000-00 for unfair dismissal.  He said this derived from the 10 months from the time his licence was arbitrarily suspended, to the time the licence expired.  He said that his gross profit would be $5 000-00 per month and he multiplied that figure by 10 months to get $50 000-00.

He also told the court that he made a claim for ZERA and EMA licences and was paid $922.00 by the defendant.  The defendant allegedly told plaintiff they had reimbursed him for the 23% loss occasioned by the equipment failure through their books of accounts but he rejected that and stated that he wanted to be reimbursed 100%.  He said in 2012 he was offered a credit facility by the defendant of $62 000-00.  He also told the court that as part of the terms of this credit facility he had to deposit all the revenue that he collected at the service station into defendant’s account.  He averred that prior to accessing this credit facility, he already had $25 000-00 worth of fuel at the service station.  He said he is also claiming $18 000 for overpaid rentals at the kiosk where he had been charged rentals at $1 500-00 per month instead of$885-00.

He said he claims $73 000-00 because the defendant was responsible for his losses.  Asked if he did not breach the agreement between himself and the defendant during his examination-in-chief, he replied by saying the agreement was totally unfair to him as the dealer.

He was also asked during his examination-in-chief if the agreement did not provide that defendant shall not be liable for damages upon suspension of the licencing agreement and he answered by saying that is unfair although he had signed the agreement.  It was again put to him that defendant avers that it acted properly in terms of the marketing agreement and he said the marketing agreement does provide that the suspension is at the discretion of the defendant.  Again, it was put to him that he signed the agreement whose provisions defendant invoked to act in the manner that it did, he said that he signed the agreement for the sake of going into business.  During cross examination it was put to him that he had fallen into arrears to the tune of $28 064-79 and that there is a court order against him in respect of arrears.  It was also put to him that it was a term of the agreement he had with defendant that if losses occurred defendant could suspend the agreement in order to investigate the losses.

It was further put to him that at page 179 of the court record, there is proof that Article 1 clause (v) provided for suspension at the discretion of the defendant who is the licensor Plaintiff denied all these issues that were put to him.

It was further put to him that defendant after suspending him, defendant gave him certain conditions to meet before the suspension could be lifted, which conditions he then failed to meet.  He denied this.  It was further put to him that he was part of the audits and he signed for them but he still maintained under cross examination that he was not a party to the audits.  It was also put to him during cross examination that he had misled the court in his evidence in chief by saying he had not been informed of the suspension but only got to learn at a later date because he handed over the service station to one Tafadzwa Mukubvu.  Despite acknowledging that he did hand over the station to Tafadzwa Mukubvu for investigation and after his suspension, he still maintained that he did not know about the suspension.

He was further told that there is no such claim in the law of contract, (outside labour contracts) as, unfair dismissal claim, he maintained that it is what he was claiming for.  He was challenged during cross-examination that he did not plead the claim for $50 000-00 the one he stated in his evidence in chief, but he disputed that and maintained that he had pleaded it.  He was challenged again, to say he could not claim any loss of profits when he operated at a loss.

He admitted during cross-examination that he was reimbursed an equivalent of 23% of the losses.  It was put to him that he signed a contract with the defendant and he was duty bound to adhere to the terms therein and he answered by stating that the contract was unfair.  He admitted during cross-examination that he signed a document to acknowledge that he had not done stock controls and that he failed to pay the amounts due.  It was also put to him that if the losses were due to equipment failure he should have stopped using the equipment in terms of the agreement and he said he did stop although the evidence in the court record points to the contrary.  He admitted that he was obliged to keep daily records of account at the service station but that he did not do so.  Plaintiff did not present any evidence to sustain the claim for rentals either.

He was challenged to the effect that he had not proven the $25 000-00 that he was claiming.  Plaintiff then closed his case and the defendant’s counsel then applied for the defendant’s absolution from the instance on the basis that Plaintiff had not proved a single claim against the defendant.  Defendant’s counsel submitted that:

No wrongfulness had been shown on the defendant’s conduct whether in delict or in contract as defendant acted within the purview of the parties agreement.  Defendant’s counsel further submitted that plaintiff having failed to prove any wrongfulness on defendant’s part, and plaintiff having failed to prove any damages suffered, he was thus not entitled to any.

Defendant’s counsel also submitted that plaintiff was an incredible witness,, very unreliable as he would deny even glaring facts from the documents before the court.  Defendant’s counsel submitted that the court order in HC 102/17 which is bound of record is proof that plaintiff was in arrears.  She also submitted that plaintiff breached the agreement by falling into arrears, and not running the service station according to the terms of their agreement more particularly in failing to keep proper records.

Defendant’s counsel also submitted that plaintiff did not place any evidence whatsoever before the court to prove his claim.  Plaintiff’s counsel submitted that the application for absolution should not be granted as the agreement showed that the suspension could only be for 60 days and that as a result plaintiff did suffer damages.  In a damages claim, a plaintiff is mandated to properly plead its claim with veracity in terms of the origins of the claim i.e to say whether it’s a contractual or delictual claim.  Again, wrongfulness on the part of the defendant must be clearly pleaded and shown through the evidence led by a plaintiff in court.  The foundation of the claim must be clearly established in the pleadings as well as proven in evidence during the trial.  It is not adequate for a plaintiff to just amass figures together, list them in a summons and aver that that is a claim.  It would also not suffice for a plaintiff to lead bare facts in support of his claim, where no evidence is tendered at all to support his contentions.  Not only is such a claim bad at law but it is also ill-founded for the reason that the pleadings do not found a proper claim for damages and the evidence led in court also proves neither wrongdoing on the defendant’s part nor any loss occasioned as a result.  Such a claim is baseless and is difficult to entertain and to assess.

Where an agreement was entered into by the parties, and where plaintiff himself has been shown to have breached that agreement, as well as where it is shown that defendant invoked the provisions of the agreement in acting in the manner it did, like in this case, then there can be no prima facie case against the defendant warranting that the defendant be called to its defence to answer same.  Plaintiff’s claims were badly drawn without much thought and research on the law of contract and delict. As if that was not enough, plaintiff failed dismally in court to adduce any evidence in support of the claims he was making, in fact what clearly came out was that he himself had breached the agreement between the parties and defendant acted in terms of the agreement to address the breach.  It is trite that a party cannot approach a court in a bid to enforce an agreement that he himself would have breached.  Plaintiff’s claim in this case is not supported by the evidence in the court record at all.  It must therefore fail at this stage as no prima facie case has been made against the defendant.

It is for these reasons that I will grant the application for absolution from the instance with costs in favour of the defendant.

Gundu & Dube, plaintiff’s legal practitioners

Gill, Godlonton & Gerrans c/o Calderwood, Bryce Hendrie & Partners, defendant’s legal practitioners