Jeremiah Gowora v UTC Zimbabwe (Pvt) Ltd & Anor

### Preamble
1
HH 37/18
HC 997/09
---------


JEREMIAH GOWORA							PLAINTIFF

and

UTC ZIMBABWE (PVT) LTD						1ST DEFENDANT

and

FUNGAI MUTSEYEKWA							2ND DEFENDANT

IN THE HIGH COURT OF ZIMBABWE

BERE J

HARARE 26-28 OCTOBER 2009; 7, 14 & 18 OCTOBER 2010

AND 27 NOVEMBER 2013 & 31 JANUARY 2018

Civil Trial

Advocate L. Uriri, for the plaintiff

Advocate J. Chilimbe, for the defendants

BERE J:	On 23 January 2014 I granted an order in favour of the plaintiff.  I did indicate that my reasons would follow.  Here they are:

It never ceases to amaze me how simple contractual agreements entered into by parties with honest intentions end up being sources of disharmony warranting the intervention of our courts as adjudicators.

The background of this case can be summarised as follows:

In July 2008 the plaintiff through his brother in law one Achiford Kupeta was introduced to the first defendant’s car rental manager a Mr Alouis Mupandira who expressed an interest in outsourcing the plaintiff’s motor vehicle for use in the advancement of the first defendant’s business.

Upon an examination of the plaintiff’s motor vehicle, Mr Mupandira expressed satisfaction with it, viz, an Isuzu KB 300 registration number AAR 1544 (“the vehicle”).

The result was that the plaintiff and the first defendant sealed an agreement for the use of the plaintiff’s vehicle at an agreed daily rate of US$110,00.  This far the parties are agreed and the facts are common cause.

The point of divergence arises when the plaintiff and the first defendant offer conflicting versions of the contractual arrangement as nothing was reduced to writing.

The plaintiff said at the time of contracting he understood the arrangement to be one of sub-hire where the defendant was hiring his motor vehicle at the agreed daily rate and that the defendant would in turn sub-hire the vehicle to a third party whose identity and charges he needed not know.  The plaintiff further said he understood the arrangement to be that once he deposited his motor vehicle with the defendant he was then automatically entitled to his share of the contractual arrangement with the defendant assuming the usual risks involved.

According to its plea and counter claim, the first defendant understood the arrangement to be that in hiring the plaintiff’s motor vehicle, the defendant was assuming agency for and on behalf of the plaintiff for outward hiring of the vehicle to a third party called Mapholisa at a rate of US145 per day with the defendant getting a commission of US$35,00 per day.

As is generally the case with most contractual agreements, at the time the verbal arrangement was sealed there was great anticipation the arrangement would work our smoothly.

But alas! No sooner had the agreement been sealed than it started experiencing problems.  The hired vehicle disappeared after a few months of being hired by the defendant.  Despite this the defendant continued to make intermittent payments in accordance with the agreed daily rate.  The payments so made were from the 1st defendant’s own resources.

It was not until the 5th of October 2008 that the plaintiff, opportunistically located his vehicle parked at Ballantyne Park Shopping Centre here in Harare.  The resultant report to the police by both the plaintiff and the second defendant led to the plaintiff recovering his motor vehicle using a spare key but by that time the vehicle had been badly damaged to the extent that it had to be taken to a garage for extensive repairs.  The defendant paid for the repairs.

The engagement between the plaintiff and the defendant that followed the recovery of the vehicle led to the signing of exhibit 2 (the acknowledgment of debt) by the defendant in favour of the plaintiff.  It is this exhibit which forms the basis of the plaintiff’s claim.

There is disagreement on the circumstances under which exhibit 2 was signed and it is one of the central issues the court has to determine.

On 5 March 2009 the plaintiff then issued out summons in this court seeking to recover US$21 156,60 together with interest which amount he genuinely believed was owed to him by the defendant as a result of the agreement earlier on alluded to.

Apart from denying liability the defendant also counter-claimed against the plaintiff seeking a refund of US$5 850,00.

When the matter went for a pre-trial conference the issues which prompted referral of the matter to trial were jointly identified as follows:

Whether or not the plaintiff hired out his vehicle to the 1st defendant at an agreed daily rental of US$110,00.

Whether or not the agreement between the plaintiff and the defendants was illegal and unenforceable.

Whether or not the 1st defendant was in possession and or use of the plaintiff’s vehicle from the 29th of July 2008 to the 30th of January 2009.

Whether or not the defendant signed the acknowledgement of debt freely and voluntarily, without any undue pressure from the plaintiff.

Whether or not the defendants owe the plaintiff the total sum of US$21 156,60 together with interest as claimed in the summons.

I do note that given the nature of the pleadings filed by the defendant there was an inadvertent omission to deal with the defendant’s counter claim as one of the issues to be determined by the trial court and the issues shall accordingly be expanded to cover that aspect.

Having made this observation, I intend now to deal with the issues in the chronological manner in which they were captured at the pre-trial conference on 27 July 2009.

But perhaps before I deal with the substantive issues involved in this trial there is a preliminary point that was raised by Advocate Uriri which I intend to address.

The withdrawal of action by plaintiff against the 2nd defendant and its implications on costs

It will be noted that at the commencement of the trial Advocate Uriri moved to have the plaintiff’s claim against the 2nd defendant withdrawn.  Counsel did not address the question of the 2nd defendant’s costs.  Even in his well detailed and pointed closing submissions he completely ignored to address this issue.

This was despite the fact that in his plea the 2nd defendant had asked for costs in the event of him succeeding.  Even in his closing submissions the 2nd defendant insisted on getting his costs arguing that there was no legal basis from the outset as to why the 2nd defendant was joined as a party to this action.  I entirely agree with the position taken by Advocate Chilimbe on this point.

The position taken by Advocate Chilimbe accords well with the provisions of Order 7 Rule 52 (1) which reads as follows:

“52. (1)	Where the defendant has entered appearance the plaintiff shall not be entitled, save with the defendant’s consent in writing, to withdraw the action until he has paid the defendant’s taxed costs or has undertaken to pay such costs and has given notice of intention to withdraw to the defendant and to the registrar.  …”

In the case of Jonathan Nathaniel Moyo vs John Landa Nkomo and Dumiso Dabengwa where a withdrawal was done in almost similar circumstances I did comment on the issue of costs in the following:

“The established norm is that a party who decides to withdraw action against the other party must tender costs.  The plaintiff in this case did not advance his reasons for withdrawal.  Both the court and the 2nd defendant were deprived of such reasons.

In order to depart from the norm there must be special reasons.  No such reasons were advanced.  I think it would be a sad day in litigation proceedings if a plaintiff were to be allowed to initiate proceedings and withdraw such proceedings without tendering costs. Such practice if unchecked would promote spurious and adventurous litigation.”

I have not been persuaded to depart from the position I adopted in the Moyo case (supra).  The proceedings in this case were commenced on 5 March 2009 and it was only on 26 October of the same year that the plaintiff decided to withdraw his action against the 2nd defendant.  The withdrawal was made on the date of trial after the 2nd defendant had been unnecessarily traumatised by this action.  Not only was the withdrawal made but such a withdrawal was not accompanied by any explanation as to why it was being made.

Given such a scenario, it is only logical that the plaintiff be ordered to pay the 2nd defendant’s costs up to the stage of the withdrawal of the action.

Analysis of the issues and evidence

I propose to deal with the issues as set out by the parties in the joint pre-trial conference minute of 27 July 2009.

Did the plaintiff hire out his vehicle at an agreed rate or did defendant act as an agent for the plaintiff?

The thrust of the plaintiff’s evidence was to convince the court that the arrangement between him and the 1st defendant was one of sub-hire of his motor vehicle with the 1st defendant assuming the usual risks involved in such an arrangement.

The tenor of the plaintiff’s evidence was that he entered into this sub-hire arrangement with the 1st defendant through its representative, one Alouis Mupandira.

The plaintiff’s evidence in this regard was clear.  Fungai Benson Rufaro Mutseyekwa’s (“Mutseyekwa”) attempt to discredit the plaintiff’s testimony by testifying in favour of agency was clearly unsatisfactory because his evidence was speculative since he did not himself engage the plaintiff at the time the plaintiff negotiated the contract with the 1st defendant.  The 1st defendant’s point person at the time of the initial negotiations was Alouis Mupandira.

This position was made clear during the cross-examination of Mutseyekwa by Advocate Uriri where the following questions and answers were recorded.

“Q	Events of July 2008 – Alouis Mupandira is a senior member of your staff

A	Yes, he is part of management

Q	He is part of the effective team at UTC

A	Yes he is

Q	It was Alouis Mupandira who approached the plaintiff

A	Not directly but indirectly through the plaintiff’s brother in law whom he had been doing business with

Q	The defendant’s direct contract with plaintiff was through Mr Mupandira

A	Correct

Q	Your were not privy to the discussion between Mupandira and plaintiff

A	Not at the time they met.

Q	You therefore cannot testify positively on the content of the oral agreement between UTC and the plaintiff

A	In this respect I think Alouis Mupandira is the best positioned person to give a correct account of what transpired.”

In the light of the evidence of Mutseyekwa, it then becomes clear that if one intends to fully appreciate the nature of the contractual arrangement between the plaintiff and the 1st defendant, one has to lean on the evidence of Mupandira and no one else from the 1st defendant’s stable.

An assessment of the evidence of Mupandira demonstrates beyond doubt that the contractual arrangement between the plaintiff and the 1st defendant was one of sub-hire and not agency.

It was the evidence of Mupandira that because the 1st defendant did not have a vehicle in the mould of that the plaintiff, the 1st defendant asked the plaintiff to sub-let the motor vehicle to it at a daily rate of US$110,00 having been negotiated from US$120,00 which the plaintiff had initially suggested.

The tenure of the evidence led and accepted by the court points to the existence of a sub-hire agreement between the plaintiff and the 1st  defendant.  I accept the reading of the evidence as summarised by plaintiff’s counsel that the arrangement between the parties was that the defendant would hire the plaintiff’s vehicle at an agreed daily rate.  The 1st defendant would in turn sub-hire the vehicle to a third party whose identity was of no concern to the plaintiff.  Even the payment this third party would make to the 1st defendant was not relevant to the plaintiff as the plaintiff was himself guaranteed of his payment whether or not the 1st defendant found takers for the motor vehicle.

I am fortified in making this finding by the mode of payment employed by the 1st defendant was confirmed by exhibit 4A where various payments were made to the plaintiff by way of the 1st defendant’s petty cash vouchers.  The petty cash vouchers are dated July, August, September, October, November and December 2008.  It is quite significant that in all these disbursements made to the plaintiff there was no breakdown of the mileage of the plaintiff’s motor vehicle, clearly confirming the sub-hire arrangement between the plaintiff and the 1st defendant.  There was clearly no agreement of agency between the plaintiff and the 1st defendant.  The existence of one Mapholisa was of no relevance to the plaintiff.

Was the 1st defendant in possession of or using the plaintiff’s vehicle from 29th July 2008 to 30th of January 2009?

Although this was made one of the issues to be determined at trial at the time a pre-trial conference minute was crafted the specific finding I make on issue number one and the existence of an acknowledgement of debt by the 1st defendant make this an non-issue at all.  But suffice it to say that the evidence led and agreed by the parties confirm that the plaintiff, having surrendered his motor vehicle to the 1st defendant on 27 July 2008 at the specific instance of Alouis Mupandira (for 1st defendant) the motor vehicle literally remained under the control of the 1st defendant until it was released from the garage that repaired it on 30 January 2009.  It is clear to me that given the nature of the agreement between the 1st defendant and the plaintiff, the 1st defendant had in his control the plaintiff’s vehicle for the period in question.

Did the 1st defendant sign the acknowledgement of debt freely and voluntarily, without any undue pressure from the plaintiff?

The circumstances under which exhibit 2 (the acknowledgement of debt) was made by the plaintiff and the 1st defendant’s representative militates against any finding that its existence was brought about by duress.  The evidence led through the 1st defendant’s managing Director Mr Fungai Benson Rufaro Mutseyekwa and Mr Alouis Mupandira did not sustain the allegations of duress having been central or in existence when exhibit 2 was signed.

Once the futility of the averment of duress was exposed, the Managing Director shifted his position and raised for the first time through exhibit 5 that there had been an error in calculation.  As indicated earlier on, the existence of Mapholisa had nothing to do with the plaintiff and it cannot be in any way connected to the plaintiff’s claim.  If it was, the various payments made to the plaintiff would have tabulated the amount paid by Mapholisa and other various breakdowns showing eventually the amount that was due to the plaintiff.

As rightly observed by the plaintiff’s counsel, it is inconceivable that if duress was present when the acknowledgement was signed, the 1st defendant would have failed to alert the police or simply declined to sign it.

In all the probabilities of this case I am more than satisfied that the acknowledgement of debt was signed freely and voluntarily by the 1st defendant’s operations director and witnessed by its financial director.  The acknowledgement of debt is clear on the amount which is due to the plaintiff and the court need not go beyond that document to ascertain the amount due to plaintiff.  The counter claim is clearly not supported by the evidence led.

Whether or not the agreement between plaintiff and 1st defendant was illegal and unenforceable

A great deal of time was devoted to demonstrating the alleged illegal nature of the contract by Advocate Chilimbe who appeared on behalf of the defendant.

The thrust of the defendant’s argument was that because the transaction to pay in foreign currency was entered in 2008 before dollarization, it was illegal and therefore unenforceable.

In my view, and as correctly argued by Advocate Uriri, this argument is not sustainable at all in light of the Supreme Court decision in Macape v Executrix, Estate Forrester where the court noted inter alia the following:

“…  The contract to pay is lawful.  Actual payment in pursuance of the contract is unlawful, without permission.  There is no reason why the court should not order payment, subject to the condition that authority is obtained.  I must make it clear that this judgment in no way inhibits the Reserve Bank in the exercise of its discretion.  It is entirely for the Reserve Bank to decide whether or not to authorize payment.  If it decides not to do so the payment may not be made.  The contract remains lawful.  Payment will then have to wait a change in the law or in the policy of the Reserve Bank.  …  The plaintiff is entitled to his judgment and Treasury permission is a hurdle which can be jumped when it is reached.3(ª)”

This position of our law was reiterated in Hattingh and Ors v Van Kleek and has been followed in a series of judgments.

More importantly, the present multicurrency regime has cured the alleged illegality as it represents a shift in national policy which does not support the position adopted by Advocate Chilimbe.

It is for these reasons that on 23 January 2014 I made a finding that plaintiff had established his case and framed my order as follows:

It is ordered:

That the plaintiff be and is ordered to pay the 2nd defendant’s costs up to the time of the withdrawal of the suit against him.

That judgment be and is hereby granted in favour of the plaintiff in the sum of  US$21 156,60 with interest from 23 January 2014 until the full amount is paid.

That the 1st defendant’s Iveco bus be declared to be specifically executable for purposes of meeting both the judgment debt as well as the plaintiff’s costs of suit.

That the 1st defendant pays the costs of suit.

That the 1st and 2nd defendants’ counter claim be and is hereby dismissed with costs.

Messrs Chinganga & Company plaintiff’s legal practitioners

Messrs Danziger & Partners defendant’s legal practitioners