H.p. Nursten & Company (Pvt) LTD Trading AS SEEF Properties V Agricultural Development BANK Limited

HH 84-2011
                                                                                     HC 2876/09

H.P. NURSTEN & COMPANY (PVT) LTD
TRADING AS SEEF PROPERTIES
versus
AGRICULTURAL DEVELOPMENT BANK LIMITED



HIGH COURT OF ZIMBABWE
BERE J
HARARE, 30 March & 1 April 2011


Civil Trial


N. Muzuva, for the plaintiff
J. Dondo, for the defendant


       BERE J: It is a simple claim by the plaintiff. The plaintiff alleges it was mandated by
the defendant to find a purchaser for the defendant’s property viz 30 Southerly Road, Hillside,
Harare, technically referred to as stand 8394 Salisbury Township.
       The basis of plaintiff’s claim was that it introduced one Rodgers Kativu to the
defendant and to the property in question. It was the plaintiff’s averment in its declaration that
as a direct result of its involvement, Rodgers Kativu offered to purchase the property for $60
000 and the defendant accepted this offer and that the property was subsequently disposed of
for the same amount to Kativu.
       The defendant’s position was that it initially gave the plaintiff an exclusive mandate to
dispose of its property for $65 000-00 and that this mandate which was for 14 days terminated
before the plaintiff could secure a buyer.
       The defendant averred that the subsequent sale of its property to Mr and Mrs Kativu
was negotiated and concluded not through the plaintiff as alleged by the plaintiff but through a
different estate agent called Elite Real Estate (Pvt) Ltd for an amount of $60 000-00.
       Mrs Marry Chitambira the sole witness for the plaintiff gave evidence in her effort to
advance the plaintiff’s cause.
       The only documentary evidence produced through her was the offer to purchase the
immovable property in question by Rodgers Kativu for $60 000-00. Mrs Chitambira’s
testimony did not suggest in any way that this offer was accepted by the defendant as it is clear
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there was one issue which the defendant wished to consider. This issue had to do with the
exemption of Capital gains tax from Zimra.
        It was the witness’s evidence that she faxed the offer made to the defendant’s
representative, a Mr Marovanyika and that Mr Marovanyika responded by e-mail to the faxed
offer. None of these documents were formally produced in court at a time the witness was
giving evidence. This was the only opportune time during which such documents could have
been produced since it was made clear through cross-examination by the defendant’s counsel
that the defendant’s representative was denying such an exchange of documents.
        At the close of the plaintiff’s case counsel for the defendant moved the court to grant
absolution from the instance arguing that the evidence tendered by the plaintiff did not warrant
the proceedings to go beyond the plaintiff’s case.
        In making the application for absolution from the instance counsel was being guided by
the ratio formulated by BEADLE CJ (as he then was) in the much celebrated case of Supreme
Service Station (1969) (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A) where the
learned Judge stated that the test to be applied at the close of plaintiff’s case is:
        “Is there sufficient evidence on which a court might make a reasonable mistake
        and give judgement for the plaintiff?”

        The thrust of the defendant’s counsel was that in the absence of any documentary
evidence by the plaintiff confirming her alleged interaction with Mr Marovanyika, her
evidence remained highly speculative. Appreciating the difficulty she found herself in counsel
for the plaintiff pointed out to the sudden existence of some of the documents alluded to in
evidence. She waved the documents for the attention of the court and the defendant’s counsel.
No effort was made at that stage to formerly re-open the plaintiff’s case in order to have the
documents formally produced before the court in the usual acceptable manner. So for all
intents and purposes the documents remained outside the court record and in my view without
such evidence the plaintiff’s case remained a limping one. It was also curious that such
documents would have been suddenly made available when in fact the witness had testified
that she did not herself have confirmation that the documents she had faxed to Marovanyika
reached him.
        In the court’s view it is doubtful that even if such documents had been formally
tendered they would have advanced the plaintiff’s cause in any way particularly given the
thrust of the defendant’s position in cross-examination that the property had been disposed of
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through Elite Real Estate (Pvt) Ltd, which is a competitor to the plaintiff. Indeed, on being
shown the agreement to this effect the plaintiff was dumpfounded and could only remark:
         “I am hearing it for the first time”.
         In the light of the submissions made by counsel coupled with the patent weaknesses in
the plaintiff’s evidence as presented by the plaintiff’s sole witness I do not see how the court,
even by any stretch of imagination might make a reasonable mistake and grant judgment in
favour of the plaintiff.
         It is equally curious how the plaintiff would have hoped to sufficiently establish its
case without even relying on the evidence of Kativu himself who appears to be the central
figure in this case. Kativu knows how he and his wife eventually acquired the property and
such deliberate deprivation of his evidence in this case further compounds the plaintiff’s case.
         I am accordingly inclined to grant the defendant absolution from the instance with
costs.




Sinyoro & Partners, plaintiff’s legal practitioners
Chinamasa, Mudimu, Chinogwenya & Partners, defendant’s legal practitioners