Loveness Kudzanga v Dickson Kudzanga and Dennis Kudzanga and Malcom Trading Logistics Private Limited

### Preamble
1
HH 387-12
HC 7651/11
LOVENESS KUDZANGA
versus
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LOVENESS KUDZANGA
versus
DICKSON KUDZANGA
and
DENNIS KUDZANGA
and
MALCOM TRADING LOGISTICS
PRIVATE LIMITED

HIGH COURT OF ZIMBABWE
UCHENA J
HARARE 2, 3, 4, 10, 20 July, and 11 October 2012.

Civil Trial

T. E. Gumbo, for the plaintiff
Miss R. Munatsi, for the 1st defendant
There was no appearance for the 2nd and 3rd defendants.

UCHENA J: The plaintiff is the first defendant’s wife. The second defendant is her husband’s young brother. The third defendant is a company with which the plaintiff and the first defendant used to do business.

Sometime in 2002 the plaintiff traveled to the United Kingdom. She secured employment, and subsequently sent a return ticket to first defendant so that he could join her in the United Kingdom.

It is common cause, that in 2004 two trucks were bought and shipped to Zimbabwe. The second defendant was the recipient, and was to use them to run a business for the plaintiff and the first defendant. The plaintiff and first defendant later came back to Zimbabwe and took over the running of the transport business.

Trouble started when the trucks and trailers which were subsequently purchased were sold. The plaintiff said this was done without her knowledge and consent. The first defendant said he and the plaintiff agreed to sale the trucks and trailer. He said they first sold the yellow truck because it had broken down. They subsequently sold the whitetruck and a trailer they had bought with the proceeds of the yellow truck, because the white truck was constantly breaking down

The plaintiff denied having at any time agreed with the first defendant to sale the trucks and trailers. She said she only got to know that the trucks had been sold when her husband had not come home, and she went to check at the third defendant’s premises where they were conducting their business from. On inquiring from the third defendant’s director Abisha Mupakaviri about her husband’s where abouts she was told that he had gone to South Africa with a girl friend. She inquired about their trucks, and the third defendant’s director, told her his company had bought them. She instituted these proceedings seeking the setting aside of the sale of the trucks and trailers and an order that they be returned to her.

At their pre-trial conference the plaintiff and first defendant agreed to refer the case for trial on the following issues;

1. Whether the first defendant and the plaintiff were not joint owners of the yellow and white haulage trucks and trailer Registration Number 531-516C.
2. Whether the first defendant and the plaintiff did not agree to sell the two haulage trucks and trailer to the third defendant.
3. Whether trailer Registration Number AAZ 1153 forms part of the jointly owned property of the first defendant and the plaintiff.
4. Whether haulage truck X337 DYA does not belong to a third party.

The second and third defendants did not participate at the pre-trial; conference. They did not also participate at the trial. After the first defendant’s case had been closed the plaintiff’s counsel applied for default judgments against them. Though default judgments could have been granted, at the time they were applied for, the fact that the first defendant had defended himself against the plaintiff’s claim, and that his success or failure had a bearing on the second and the third defendants positions, necessitated the determination of their fate after the consideration of the merits of the case between plaintiff and the first defendant.

**Ownership of yellow and white trucks and trailer 531-516C**

The plaintiff and the first defendant disputed over who bought the two trucks and trailer 531-516C. The plaintiff said she bought the trucks on her own, and the first defendant only assisted her with shipping fees and expenses required when the trucks got to Zimbabwe. The first defendant also claims to have bought the trucks on his own.

The plaintiff produced exh(s) 1, to 4 to prove that she is the one who bought the yellow and white trucks. Exhibits 1 and 2 are invoices in her name. Exhibits 3 and 4 are proof of payments into the seller’s account which do not prove who made the payments. The details on exh(s) 1 and 2 tend to show that it is the plaintiff who made the payments.

The first defendant told the court in evidence that he bought the two trucks on his own as he was being better paid, working as a parking attendant than the plaintiff who only worked while she was on college vacation. He produced his passport as exh 11 to show that his visa was that of a student’s spouse. He in his evidence in chief said when he got to the United Kingdom the plaintiff was not working and had not been working. He under cross examination changed his story and said she was working and that is what enabled her to send him a return ticket. The first defendant’s attempt to mislead the court on the plaintiff’s financial ability to buy the trucks lends credence to the plaintiff’s evidence which is supported by invoices in her name. An examination, of the first defendant’s visa, does not support his evidence. The details on his residence permit are that it was issued for the period 25 June 2005 to 30 June 2006, with limited leave to remain in the UK and was not to have recourse to public funds. It says nothing about his being a spouse of a student.

In his plea the first defendant in para 4 said “This is denied. The first defendant pleads joint contribution and joint ownership of the two haulage trucks (horses), as both parties in partnership contributed equally to the purchase and shipping of the two trucks from England to Zimbabwe”. This is totally different from his evidence in court that he bought the two trucks on his own and shipped them to Zimbabwe without the plaintiff’s assistance. I therefore find that the plaintiff told the truth about the purchase of the trucks. The first defendant’s lies, on this aspect strengthens her evidence that she bought the trucks and that he only assisted her with their shipping to Zimbabwe. The fact that exh 14 and 15 give the invoice address as that of Denis Kudzanga is consistent with the plaintiff’s evidence that he was to receive the trucks and use them to conduct business on their behalf. She explained that as a married woman she had to send the trucks to the
 Kudzangas as that was her family, and she had agreed with her husband that the second defendant was to conduct the transport business for them. A comparison of exh(s) 1 and 2 and 14 and 15, confirms that they were all issued by Michael Burley of Commercial Vehicle Sales 4 Greenhill, Leighton Buzzard Bedfordshire LU7&AE Telephone; q1525374566 & 375721.

The plaintiff said they bought trailer 531-516C from proceeds of the transport business. The first defendant said they bought it from proceeds of the sale of the yellow truck which he said they sold in August 2010. The plaintiff disputes that and maintained that that trailer was bought from proceeds of the businesses they were running. In view of the first defendant having shown a propensity to mislead the court I accept the plaintiff’s evidence on how this trailer was acquired. It is however common cause that the trailer was jointly owned by the plaintiff and the first defendant.

Though the first defendant did not participate in paying the purchase price for the yellow and white trucks, he clearly had an interest in them as he financed their shipping to Zimbabwe and the expenses which were to facilitate their getting to the intended destination. I therefore find that though the plaintiff contributed more both parties had interests in the yellow and white trucks and that they jointly owned trailer 513-516C.

**Did the parties agree to sale the yellow and white trucks and trailer 513-516C.**

The plaintiff’s evidence is clearly to the effect that she did not consent to the sale of the trucks and trailer. She denied being present when the agreement and payments were made for the trucks and trailer. She is corroborated by Abisha Mupakaviri’s evidence who said the agreement was signed before a Commissioner of Oaths, and that he made the payments to the first defendant in the absence of the plaintiff. The second defendant also said he did not witness payments being made in the plaintiff’s presence. The fact that the first defendant went to South Africa soon after the sale of the trucks has been established. He even admitted having taken part of the proceeds to South Africa where he said he intended to buy another truck, but the money was stolen. The involvement of a girlfriend immediately before the first defendant went to South Africa and on his return from South Africa was admitted. This lends credence to the plaintiff’s evidence that the first defendant went to South Africa with his girlfriend. The weight of evidence and the probabilities favours the plaintiff’s version. I am therefore satisfied that the plaintiff did not consent to the selling of the two trucks and trailer Reg No 513-516C.

She was the major contributor in the purchase of the trucks and trailer and thus has a substantial interest in them. Their being sold without her consent must therefore affect the validity of the sale agreement. The third defendant knew she had an interest in the trucks as the plaintiff and the first defendant where operating their business from its premises. Abisha Mupakaviri the third defendant’s director was the first defendant’s friend. He seems to have acted in collusion with the first defendant as demonstrated by his having agreed on the sale of the trucks and trailer in the plaintiff’s absence and having made payments in her absence. The third defendant was a participant in these proceedings yet it defaulted but its director came to testify for the first defendant. It would seem the third defendant was trying to defend itself through the first defendant when it did not have the confidence to do so in its own right.

In view of the first defendant ‘s failure to successfully defend himself against the plaintiff’s claim judgment will be entered against him and the second and the third defendants in respect of the yellow and white trucks and trailer Reg No 513-516C.

**Trailer AAZ 1153**

The plaintiff said she and the first defendant, send money to Denis (second defendant), so that he could buy the semi drop trailer for them. The trailer was to be registered in the second defendant’s name. The first defendant’s evidence on this aspect was not consistent with the truth. He said he did not send money for the purchase of that trailer, but that the plaintiff could have done so without his knowledge. He said the trailer belongs to the second defendant. He contrary to his summary of evidence did not say the trailer was bought by his father and belonged to him.

The plaintiff’s evidence on the purchase of trailer AA 1153, is not as clear and convincing as that in respect of the yellow and white trucks. There is no documental proof of her having send money for its purchase. She failed to prove that they send money to the second defendant for the purchase of this trailer. On the other hand it is possible that they did but the first defendant is deliberately embellishing evidence to benefit his father who is being alleged to have bought that trailer. The first defendant’s father was not part of these proceedings. His evidence could have thrown light to the truth of the ownership of that trailer. I am therefore left with no clarity as to who owns that trailer. The justice of the case will be met by granting the defendants absolution from the instance, which will enable the plaintiff to have another chance to sue for that trailer if she wishes.

**Whether haulage truck X337 DYA does not belong to a third party.**

The plaintiff told the court that they bought haulage truck X337 DYA from proceeds of their businesses. She was over and above the transport business she was running with the first defendant, running a flea market business.

The defendant said they did not buy a third truck as their transport business and the plaintiff’s flea market were not doing well. He said he merely helped the third defendant to identify truck 3376 DYA, for purchase, through the Internet.

The plaintiff produced exh 10 as proof that they bought truck X 337 DYA. Exhibit 10 is a hand written document in the first defendant’s handwriting apparently because he copied its details from the internet. The plaintiff in her own evidence said it did not satisfy her as proof that they had purchased that motor vehicle. In an exchange with her legal practitioner she said;

- “Q. Did he give you proof?”

- A. He came with a paper with details of the truck. I told him I wanted a receipt printed out.

- Q. This the original paper?

- A. Yes

- Q. That’s his handwriting?

- A. Yes

- Q. Tender it as Exhibit 10”

The plaintiff however said she was later given exh 6 which shows truck registration No X 337 DYA was being sold for 7 000-00 pounds by C V R Trailers (Bristol) LTD. which, was to be delivered to the Port of Durban. Payment was to be made to Natwest Bank PLC Bristol Sort Code 60 08 24, Account No 61555436. Exhibits 6 and 10 are therefore documents pointing to an intention to buy. They are not proof that such a truck was purchased.

If the first defendant’s story that he was assisting the third defendant to buy this truck is true one would have expected the motor vehicle the third defendant bought to have had the same details as in exh(s) 6 and 10. Abisha Mupakaviri admitted in his evidence that the Chassis no and Registration No. of the Motor vehicle he bought through the first defendant’s assistance is different from those indicated in exh 6. That motor vehicle could well have nothing to do with the one the plaintiff is claiming. The plaintiff is adamant that she saw the truck the first defendant bought as he brought it home and told the children and herself, that it was their new asset. I have no reason to disbelieve her, even though her reliance on exh(s) 6 and 10 weakens her case. Her production of exh 6 and the defendants production of exh16 gives it renewed, but still insufficient strength. The probabilities of the fact that they bought a third truck are in her favour. She is not only relying on documental evidence but also her physical observation of the truck. I am however hesitant to find that the truck the plaintiff said the first defendant brought home is No X 337 DYA. There is doubt as to whether or not that truck was brought into the country. Abisha Mupakaviri said he intended to buy that motor vehicle, but the seller sold it in the UK and delivered a different motor vehicle whose details are in exh 16. In my view the plaintiff has not proved the existence of truck X 337 DYA, which she says, the first defendant sold to the third defendant. The plaintiff could have, easily established the existence of that truck in Zimbabwe by producing a Zimbabwean registration book with those details, or by establishing that it was once registered in Zimbabwe in the first defendant or the third defendant’s name.

I am not satisfied that the existence of truck X 337 DYA has been satisfactorily established. It might or might not have been imported into Zimbabwe. There are missing details which makes me hesitant to order that such a truck be surrendered to the plaintiff. I will therefore absolve the defendants from the instance and leave room for the plaintiff to establish the existence of truck X 337 DYA if she can.


In the result the plaintiff succeeds in respect of issues 1 and 2, while the first defendant succeeds on issues 3 and 4. Each party is entitled to costs in respect of the issues which he or she succeeded on.

It is therefore ordered that;

1. The agreements of sale entered into between the first and the second defendants with the third defendant in respect of ERF 10 Olympic 6x2 registration P112 TBE white in colour and ERF EC10 Olympic 6x2 registration number M488 NBE, yellow in colour and trailer 513-516C be and are hereby set aside.

2. The third defendant is ordered to restore possession of the trucks and trailer mentioned in para 1 to the plaintiff.

3. The defendants are absolved from the instance in respect of truck X337 DYA and trailer AAZ 1153.

4. The first defendant is ordered to pay the plaintiff’s cost in respect of issues covered in paragraph 1 and 2.

5. The plaintiff is ordered to pay the first defendant’s costs in respect of issues covered in para 3.

V. Nyemba & Associates, plaintiff’s legal practitioners
Mapondera & Company, 1st defendant’s legal practitioners.
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