Masakhane Traders Association v Kennedy Chibva

### Preamble
1
HB 102.20
HCA 50/18
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MASAKHANE TRADERS ASSOCIATION

Versus

KENNEDY CHIBVA

IN THE HIGH COURT OF ZIMBABWE

TAKUVA AND MOYO JJ

BULAWAYO 27 JANUARY AND 11 JUNE 2020

Civil Appeal

N Mangena, for the appellant

Respondent, in person

MOYO J:		This is an appeal against the decision of the Magistrate’s Court Bulawayo given on the 17th of July 2018.  The appellant raises 4 grounds on this appeal namely that:-

The court a quo grossly erred and misdirected itself in finding that improper pressure was exerted on the respondent into signing the acknowledgement of debt.

The court a quo further erred and grossly misdirected itself in holding that the audit process conducted by PNA Chartered Accountants shambolic and could not be relied upon.

The court a quo further erred and grossly misdirected itself in failing to find and uphold the fact that respondent admitted to misappropriating funds and voluntarily acknowledged his indebtedness.

The court a quo further erred and grossly misdirected itself in finding that the respondent signed the letter of the 10th of September 2015 under duress.

Wherefore appellant seeks that the decision of the court a quo be set aside and that it be substituted with a judgment in plaintiff’s favour in the court a quo.  Whilst the appellant dwells much on the duress and the improper pressure allegedly exerted on the respondent to sign the acknowledgment of debt, this court is of the view that whether there was duress or not in the signing of the acknowledgment is not the real issue between the parties as the real issue should be the validity of the acknowledgment of debt rather than whether respondent signed it freely and voluntarily or was under duress.  An appellate court will not ordinarily interfere with the factual findings and credibility findings of the trial court unless if it is shown that the learned trial Magistrate misdirected himself in arriving at those findings.

The uncontroverted evidence in the court record, which presents a difficulty with appellant’s case is that the acknowledgment of debt was written and signed whilst blank with the amounts to be inserted at a later stage by somebody else.  An acknowledgment of debt must be for an amount that the debtor himself acknowledges.  It becomes difficult to enforce one where the debtor signed and an amount was later inserted after his signature like it was then imposed on him.  It is this unsatisfactory aspect of the circumstances under which the acknowledgment of debt was signed, which presents difficulty for the court to uphold it as a liquid document that clearly proves respondent’s indebtedness to the appellant.  The definition of an acknowledgement of debt upon an online search in the online legal dictionaries is given as follows:-

“a document which contains an unequivocal admission of liability by the debtor that he/she owes a particular sum of money to the creditor and undertakes to repay it.”

The Cambridge online dictionary defines it as “an official document in which someone states that they owe a particular amount of money to someone.

Clearly therefore, an acknowledgement of debt should be unequivocal and should clearly state what is owed by the debtor.  A blank acknowledgement of debt can thus not be held to be unequivocal neither can it be held to be for a specific amount of money.  In other words, in a blank acknowledgement of debt, the debtor acknowledges an unknown sum.  A sum whose mathematical calculation has not been tested.  The inserted amount seems to have been plucked from the air and that would not have been a problem had the acknowledgement of debt been properly executed and signed with no blank amounts to be filled in later.  The very essence of acknowledging a debt is about the amount owed.  If the amount owed is unknown or is yet to be verified and inserted after the signature then the absence of a specified amount on the indebtedness renders the acknowledgement hollow in my view.  For what then was the debtor acknowledging?  That he owes a sum neither him nor the creditor knows?  In such a situation, it becomes difficult to enforce such a document wherein the plaintiff’s claim relies solely on it.  There is no audit to rely on with regard to that amount.  In fact the auditors chose to use the acknowledgement in their report instead of carrying out an audit that would show how the debtor owes and how much.

Appellant’s counsel argued that the follow up letter written by the respondent promising to pay and explaining his default, further validates the acknowledgment of debt as he was then aware of its contents.  It is our view that the acknowledgment of debt in itself must stand as proof of indebtedness and again the letter of September 2015, does not stipulate the amount owed for it is on considered view that a debtor cannot acknowledge an open indebtedness, indebtedness must be acknowledged as a specified amount, so that the court that enforces such an acknowledgment is clear that indeed, the debtor admitted indebtedness to that specific amount.

From the court record, it appears the sum of $7 333-00 is a figure that was imposed on the respondent without a clear mathematical formular.  In other words, it is not a figure that the 2 parties sat down and agreed on mutually that it is the sum owing.  It is a figure that appellant and the auditors came up with without respondent’s input.  It is also pertinent to note that this figure did not come from the audit report.  The learned Magistrate in her judgment correctly criticized the audit report as it clearly did not assist the court in any way in determining in the matter.  It is an open ended audit report that also uses hearsay to draw conclusions.  It was also respondent’s case that he drew the blank acknowledgment of debt, so that once an audit is done and a figure is stipulated, he then inserts such a figure.  That is not what happened.

The evidence of Belson Mubure (applicant’s 1st witness in the court a quo) shows that the figure of $7 333-00 has no mathematical basis because all he says is that respondent acknowledged indebtedness in the sum of $7 333-00 but even himself does not state how that figure was arrived at.  This, coupled with the fact that respondent signed a note wherein the amounts were not inserted, and then they were inserted later, shows that the contents of the acknowledgment of debt cannot be held as being the factual and mathematical scenario that respondent admitted.

A dark cloud thus hangs over the origins of the $7 333-00 and the fact that when an acknowledgment was signed, it was blank.  The whole situation tends to give a picture that someone just plucked the $7 333-00 from the air and inserted it in the blank acknowledgment that respondent had signed.  What if that is not the sum respondent truly owes if any?  What if respondent truly owes a lot less than the figure that was plucked from the air and filled into the blank space that was in the acknowledgment?

This court is of the view that the whole state of affairs regarding the acknowledgment of debt creates doubt as to the sum due and payable by the respondent if any.  It is for these reasons that we find that the learned Magistrate was correct in not upholding the acknowledgment of debt although she did so on the basis of undue pressure which we are of the view that, it was not the decisive point.

I accordingly dismiss the appeal with costs.

TAKUVA J………………… I agree

Messrs Coghlan and Welsh, appellant’s legal practitioners