Rodney Mokwena v Isaiah Mudzengi

### Preamble
1
HB 136/21
HC 1486/17
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RODNEY MOKWENA

Versus

ISAIAH MUDZENGI

IN THE HIGH COURT OF ZIMBABWE

KABASA J

BULAWAYO 1 & 22 JULY 2021

Civil Trial

Ms. C. Mugambiwa, with B. Fernando for the plaintiff

Mr. A. Mhaka for the defendant

KABASA J:	On 6th June 2017 the plaintiff issued summons against the defendant in which he claimed the payment of $59 400 being money owed following the rescission of sale of a piece of land.

The genesis of the claim was elaborated in the plaintiff’s declaration.  I must say the declaration was a little confusing as it stated that the plaintiff had sold a piece of land to the defendant and the defendant owed the plaintiff $59 400 inclusive of legal costs for the purchase of this piece of land.

On 19th December 2019 a notice to amend the plaintiff’s declaration was filed and the amendment was allowed by consent at the hearing of the trial.  This amendment clarified the rather confusing declaration which was initially filed with the summons.  In the amended declaration the plaintiff’s claim was said to have arisen as a result of a verbal agreement entered into between the parties wherein the purchase price was agreed at ZW$370 000.  The defendant breached the agreement by failing to effect transfer of ownership as agreed and offered to compensate the plaintiff for losses incurred as a result of the breach.

Following a valuation of the property the defendant agreed to pay US$18 000 per month to the plaintiff until a total of $59 400 which comprised the full amount was paid.

The plaintiff’s prayer was for judgment for:

“(a)	Payment of $59 400,00 being monies owed by the defendant for the purchase of a piece of land.

(b)	Interest at the prescribed rate from date of summons to date of final payment.

(c)	Cost of suit.”

In answer to the plaintiff’s claim the defendant admitted entering into a contract of sale of a vacant piece of land.  The land was 6 acres in extent and it was sold for ZW375 000.  However, the agreement was rescinded in terms of a condition precedent contained in that agreement as such condition was not fulfilled.  Thereafter the defendant refunded the US$18 000 the plaintiff had paid as the purchase price.  The US$18 000 was arrived at following a valuation of the piece of land.

The defendant therefore denied owing the plaintiff US$59 400 since the US$18 000 was paid in full and final settlement of his indebtedness to the plaintiff.

Consequently, the defendant prayed for the dismissal of the plaintiff’s claim, with costs.

After the closure of pleadings, the parties attended a pre-trial conference and the following issues were referred to trial:

“1.	Whether or not the defendant owes the plaintiff the sum of USD57 000.

(2)	Whether or not the defendant should pay costs of suit at attorney-client scale.”

At the hearing of the matter evidence was led from the plaintiff who was the only witness.  The gist of his evidence was that in 2001 he bought a plot from the defendant which was 24 acres in extent.  He paid a deposit and thereafter instalments until a total of ZW$370 000 was paid.  There was no agreement of sale signed as the defendant promised to attend to that later on.  He did not pursue the issue as he trusted the defendant.  He had no proof of the payments he made as he never received receipts although the defendant’s wife receipted the payments.

Sometime in 2011 he asked the defendant for the title deeds to the property as he now wanted to develop it.  The defendant advised him that he had looked for him in Botswana where the witness was at the time, to no avail.  The purpose was to refund him the purchase price.  The purchase price was however not refunded as promised and this prompted the plaintiff to seek advice before he eventually reported the matter to the police. The defendant attended at the police station and the parties reached an agreement.

The terms of such agreement were that the defendant offered to refund the plaintiff his money but suggested that the land be valued which was subsequently done.  The valuation report prepared by one K. Musiyiwa was produced and marked exhibit 1.  It showed that the valuation was at the instance of the plaintiff and the defendant.  Both parties attended on site and defendant identified the piece of land to the valuer.  The land was 6 acres in extent and the valuer concluded that:

“In our opinion that at 16th October 2014, the value for land valued was in the region of US$18 000.”

The parties thereafter went back to the police where the defendant undertook to pay the money over 6 months at US$3 000 per month.  He duly paid as per that agreement.

Asked under cross-examination why he agreed on valuation of 6 acres and yet he was claiming to have bought 24 acres, the plaintiff responded that it was because the defendant asked the valuer to value 6 acres.  There was however no impediment to a valuation of 24 acres had he insisted on such valuation.  He also did not know that the defendant would give him problems.

Asked to explain where $54 000 was coming from if the agreement was for the payment of $18 000, he explained that he had agreed to reduce the $54 000 to $32 000 but decided to revert to $54 000 when the defendant was not forthcoming with the payment.

They had however agreed that the defendant would pay US$18 000 over 6 months and that agreement was with his erstwhile legal practitioners.  He had no time to retrieve the agreement from them. It was then put to the witness that he had failed to prove that the defendant agreed to pay him over and above the US$18 000 he agreed to and duly paid.  The plaintiff’s response was:

“I do not have the evidence because defendant did not sign.  He was supposed to have come back but he never did.”

With this evidence the plaintiff closed his case, whereupon counsel for the defendant made an application for absolution from the instance.  Counsel submitted that the plaintiff had failed to prove a prima facie case.  He failed to place before the court the essential elements of the agreement upon which he relied for his cause of action.  His claim was vague and embarrassing as the summons reflected a claim which was different to that identified in the issues referred for trial.  The viva voce evidence also mentioned a different agreement thereby failing to substantiate the claim.

In response counsel for the plaintiff contended that plaintiff had established that there was an agreement of sale and the defendant has to rebut that evidence.

What is it the court looks at when considering an application for absolution from the instance?

In Beta Holdings v Rio Zim (Pvt) Ltd HH-397-17, the court said:

“The order should be granted when the plaintiff’s claim is hopeless at the close of the plaintiff’s case.”

When the court is in doubt, it ought to allow the trial to proceed.  Such doubt would tend to show that the plaintiff’s case is not hopeless. (See Standard Chartered Finance Zimbabwe v Georgias and Another 1992 (2) ZLR 547 (HC)).

Mr. Mhaka’s argument appeared to suggest that the plaintiff completely failed to establish which agreement constitutes his cause of action. It is important to establish what a cause of action is. In Peebles v Dairibord Zimbabwe (Pvt) Ltd 1999(1) ZLR 41 (HC), a cause of action was described as:

“simply a factual situation the existence of which entitled one person to obtain from the court a remedy against another person”

It follows therefore that the cause of action was clear. It arose from the sale agreement which fell through.  The issue however lay with the evidence to prove the claim.  It could be a question of semantics but it is not entirely correct to talk of the inconsistency regarding the size of the land sold, the value thereof and the amount that was to be paid to the plaintiff, as different causes of action.

In his summons the plaintiff claimed $59 400 being the money owed from a rescission of sale of land.”  Whilst the summons had a figure of $59 400 which was described as compensation for losses the plaintiff had suffered as a result of the breach, one of the issues referred to trial put the figure at $57 000.  In his evidence the plaintiff stated that it was actually US$72 000, less US$18 000 which the defendant had paid after he reported the matter to the police.  This would make the figure US$54 000, not US$54 900 or US$57 000.

It became rather confusing to appreciate whether this amount represented the money actually paid to the defendant as the purchase price for the piece of land or it represented the value of the land. And equally whether what was being claimed was a refund of the money paid or damages for losses incurred when the sale fell through.

The valuation report produced as exhibit 1 showed that 6 acres was the extent of the land the valuer was asked to value.  The plaintiff paid for the valuation and was present when the valuer was shown the portion of land to be valued.  The value of 6 acres was put at US$18 000.  Such valuation was done specifically to arrive at an amount the defendant was to pay to the plaintiff.  This exercise was done as a precursor to the agreement the parties subsequently arrived at before the police.  That agreement was to the effect that the defendant was to pay US$18 000 in USD3000 instalments paid over 6 months.

If all defendant was being asked to do was repay what the plaintiff had paid for the land, one cannot help but wonder why it was necessary to get a valuation report and base the refund on such valuation.

Further, the plaintiff said he bought 24 acres and yet the valuation was for 6 acres.  Such valuation was done specifically to arrive at the amount the defendant was to pay to the plaintiff.  It was on the basis of that valuation that the agreement to pay US$18 000 was concluded before the police.

The very purpose of involving the police was because the plaintiff no longer trusted the defendant.  The police were therefore to provide a safety net as witnesses to the agreement in case the defendant reneged on it.  With this background one would have expected that whatever agreement it was the plaintiff was desirous to pursue such would find expression in the presence of the police.  Contrary to his claim as per the summons, the plaintiff agreed on US$18 000 which represented the value of 6 acres.  The agreement before the police, the valuation report and the subsequent payment of US$18 000 was at variance with the plaintiff’s claim of $54 900 or the $57 000.

In Gaibie and Another v Castanheira and Another SC-58-20 MAKONI JA referred to MAKARAU JA’s decision in Competition and Tariff Commission v Iwayafrica Zimbabwe (Pvt) Ltd SC -58-19 where the learned JA stated the principles governing applications for absolution from the instance.  This is what the learned JA had to say:

“The law on when a court may grant absolution from the instance at the close of the plaintiff’s case is settled (See Supreme Service Station (1969) (Private) Limited v Fox and Goodridge Limited 1971 (1) ZLR 1, United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S).

The court granting absolution must be satisfied that there is no evidence before it upon which a reasonable court might find for the plaintiff, expressed differently the court considering an application for absolution from the instance must ask itself if there is no evidence at all on each and every essential averment that the plaintiff must make to sustain the cause of action.  If there is some evidence on all the essential averments absolution should not be granted …”  (my emphasis)

MAKONI JA went on to say: -

“The courts must be slow to grant absolution from the instance and this point was made in Katerere v Standard Chartered Bank Zimbabwe Ltd HB-5-08 which was quoted in Bakari v Total Zimbabwe (Pvt) Ltd SC-21-19 it was stated that:

“The court should be extremely chary of granting absolution at the close of the plaintiff’s case.  The court must assume that in the absence of very special consideration, such as the inherent unacceptability of the evidence adduced, the evidence is true.  The court should not at this stage evaluate and reject the plaintiff’s evidence.  The test to be applied is not whether the evidence led by the plaintiff establishes what will finally have to be established.  Absolution from the instance at the close of the plaintiff’s case may be granted if the plaintiff has failed to establish an essential element of his claim.”

The long and short of this is whether the plaintiff has made out a case worthy of a response from the defendant.

In casu, the lack of clarity and consistency on whether the plaintiff paid $72 000 for the purchase of 24 acres of land and so was claiming the refund of that amount after the sale fell through or what was purchased was actually 6 acres whose value was put at US$18 000 and that US$18 00 which was subsequently refunded was what was actually owed to the plaintiff, makes it not worthy to ask the defendant to defend the claim.

In Ruto Flour Mills (Pty) Ltd v Adelson 1958 (4) TPD 307 BOSHOFF J had this to say:

“At the close of the case for the plaintiff therefore, the question which arises for the consideration of the court is, “Is there evidence upon which a reasonable man might find for the plaintiff?”

I am unable to answer this question in the affirmative. I must hasten to say this is not because the plaintiff’s evidence has been rejected, for this is not what the court considers at this juncture. The issue is, accepting that the plaintiff’s evidence is correct, has he made out a prima facie case warranting proceeding with the trial? The answer is NO.

I am consequently in agreement with Mr. Mhaka that the plaintiff has not established a prima facie case for the claim as reflected in the summons.  There is no reason which warrants a continuation of the trial.

I am not persuaded to hold that there is sufficient evidence upon which a court might make a reasonable mistake and give judgment for the plaintiff.  (Supreme Service Station (1969) (Pvt) Ltd v Goodridge (Pvt) Ltd supra).  If there was any judgment to be entered for the plaintiff it would have been for the US$18 000 as this is the claim that evidence was led on.  That amount has been paid and the trial was not premised on the claim for US$18 000.

The claim for $59 400 or is it $57 000 is hopeless.  There was absolutely no evidence led in support of this amount which is over and above the US$18 000.

That said, the defendant’s application for absolution from the instance has merit.

In the result I make the following order: -

The application for absolution from the instance be and is hereby granted, with costs.

Sachikonye-Ushe & Hlabano c/o Dube-Banda & Nzarayapenga, plaintiff’s legal practitioners

Mhaka Attorneys c/o Mathonsi Ncube Law Chambers, defendant’s legal practitioners