Casper Bukutu v Victor Mariranyika

### Preamble
1
HMT 31-19
CIV ‘A’ 03/19
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CASPER BUKUTU

versus

VICTOR MARIRANYIKA

HIGH COURT OF ZIMBABWE

MWAYERA AND MUZENDA JJ

MUTARE, 15 May and 30 May 2019

Civil Appeal

Appellant in person

Respondent in person

MUZENDA J: Sometime in August 2016 the respondent, Victor Mariranyika, loaned and engine and irrigation pipes to the appellant. The appellant did not return the equipment on time. The respondent sued the appellant in the small claims court under case number SCC 4/2018 and obtained a default judgment against the appellant. After appellant’s property was attached by the messenger of court, the appellant paid for the irrigation pipes. He had already returned the respondent’s engine.

Having been paid for the pipe the respondent returned to court in April 2018 and issued another set of new summons claiming $2 950-00 and costs and the claim was based on four grounds outlined by the respondent as follows:

“(i)	you deprived me of planting and irrigating one hectare of tobacco in the farming season.

you caused me to be absent from duty in pursuit of this matter, travelling and attending courts.

you caused emotional stress, pain and suffering.

you wasted my time.”

After hearing evidence of both parties the learned magistrate granted judgment in favour of the respondent (Plaintiff a quo) in the sum of $980-73 plus costs. On 15 January 2019 the defendant (appellant) noted an appeal against that judgment and spelt out seven (7) grounds of appeal:

The trial magistrate erred in not appreciating that there was mutual consent and they were friends and used to borrow from each other.

The court erred in failing to consider that the appellant had returned the pipes in question.

The court erred in not finding that the appellant’s claim was falsely made and effectively sought to coerce and fleece me of my hard earned property.

The trial magistrate erred fundamentally in not finding  that I had proved my case on a balance of probabilities when in fact no evidence whatsoever from respondent led to the alleged damages and waste of time, absent from duty, emotional stress, pain and suffering and deprived of irrigation of 1 hectare tobacco.

The court erred and misdirected herself and made a blanket award when there were several damages claimed in the summons and were not quantified and justified.

The trial court failed to appreciate that the appellant once paid the respondent through the messenger of court Rusape ref: Small Claims Court, Rusape.

The whole decision by the trial magistrate induces a sense of shock and warrants the interference by the High Court.

Both parties were self-actors before the magistrate and before us. However both filed heads of argument, although they were not obliged to do so by the rules of this court. It is also apparent that the grounds of appeal are several and repetitive and to some extent vague.

Grounds 4 and 5 are however clearly spelt out and this court will look at these two to decide this appeal. These are whether the respondent proved his claim as per the summons and whether the court a quo misdirected itself on that aspect. Alternatively whether the learned magistrate misdirected herself in awarding the damages in the sum of $980-73.

The respondent claimed $2 950-00 general damages under four headings: damages for waste of time, absence from duty, emotional stress, pain and suffering, and damages arising from his failure to grow and irrigate a hectare of tobacco. It is common cause that the learned trial magistrate awarded damages of $980-73 for failed irrigated hectare of tobacco. The reading of the record of proceedings shows that the respondent did not amend his claim, nor did he indicate that he was abandoning the other grounds of his claim, he did not appraise the court that he was now focusing on the 1 hectare of tobacco. The trial court ought to have clarified this aspect, reason being that, a litigant is bound by its pleadings. The learned trial magistrate is commended for going for an inspection in loco but unfortunately there is no record of what was established during inspection. Such a finding must form part of the record of proceedings, the inspection is part and parcel of the proceedings and must show who was in attendance, the language as well as the indications or diagram or sketch plan and upon resumption of court proceedings, such findings are recorded and captured.

Conclusions or deductions by a court from such an inspection would naturally flow from them.

The trial court on page 11 of the record of proceedings, in its judgment concluded as follows:

“On the other portion 0.6 hectares, the number of bales, court will assume will be 16 bales. The amount will be $1 280-73. $1 280-73 – 300 = $980-73” (my own emphasis)

The respondent did not prove its claim. The trial court should not have assumed. This was a misdirection. A plaintiff must prove its case on a balance of probabilities. It is not the duty of the court to assume, its duty is to conclude and decide from the proven facts including documentary evidence produced before it. The respondent may have had a case against the appellant but he failed to articulate it and the learned magistrate virtually assisted a litigant to compute the amount of $980-73. It was not the duty of that court to do that. By the time the plaintiff failed to prove its case on a balance of probabilities and the court would not have had problems to absolve the appellant from the instance. The respondent did not give the figure of $980-73, he alluded to a profit of between $1 500-00 and $2 000-00 after deductions, the question to be posed is, from which grounds of his claim on the face of summons would he make such a profit?

One would hasten to reply that from a 1 hectare plant of tobacco, but the court concluded after inspection and assumed that the appropriate hectare was 0,6 not 1 hectare. Indeed the trial court was left by the respondent to speculate and it fell into that error. The appeal succeeds and the following order is returned:

The appeal succeeds.

The decision of the court  quo is set aside and substituted by the following:

Defendant is absolved from the instance.

No order as to costs.

MWAYERA J agrees _________________________