W. Cornish (Private) Limited v Matabeleland Engineering

### Preamble
1
HH 464-18
HC 3891/16
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W. CORNISH (PRIVATE) LIMITED

versus

MATABELELAND ENGINEERING

HIGH COURT OF ZIMBABWE

MUSHORE J

HARARE, 6 February 2018 & 8 August 2018

Civil Trial

M Moyo, for the plaintiff

P Chakanyuka, for the defendant

MUSHORE J: Plaintiff is suing the defendant for the recovery of US$7 541.41 which he alleges is made up of (a) a consultancy fee in the amount of US$2 500.00; (b) commission and (c) telephone bills arising from a verbal agreement which it states it entered into with the defendant company. The terms of the agreement as alleged by the plaintiff, were that the plaintiff would be paid a consultancy fee in the amount of US$3 125.00 and commission calculated at 10% for helping the defendant to set up and run a panel beating; sales and engineering shop at No. 14 Martin Drive, Msasa. In its declaration the plaintiff stated that the 10% would be calculated from the sales profit of all new business generated by it. Plaintiff alleged that the 10% commission which was the equivalent of 10% profit on sales for the months August 2014 to November 2014, was in the sum of US$7 541.41, and the sum due for the telephone bills was US$113.00.

In its plea, the defendant admitted that there was such a contract entered into between the parties; and that the plaintiff was due consultancy fees; payment of telephone bills and the use of a motor vehicle supplied by the defendant and reasonable monthly fuel. Defendant averred that it agreed to pay the plaintiff commission calculated at 10% on sales profit, but was challenging the figures which the plaintiff came up with, stating that the business did not accrue profits on sales in the aforementioned period. Thus defendant pleaded that it was not indebted to the plaintiff for the commission which the plaintiff was claiming was due to it. The issues for trial as states on the joint Pre-Trial Conference were as follows:

“1.	Whether there was a contract between the plaintiff and the defendant.

2.	If there was a contract, how much was owed as consultancy fees, commission and telephone bills”

The first issue is not a triable issue because both parties are in agreement that they entered into a contract. At trial, plaintiff’s counsel advised the court that the parties had resolved the issues of telephone bills and the consultancy fee. Thus what remained to be determined by the court was the commission purportedly due to the plaintiff.

Plaintiff called one witness, William Cornish. He told the court that he negotiated the terms of the contract with a Mr Tony Sarpo of the defendant for plaintiff to manage and run the defendant’s Msasa Facility, which carried out vehicle repairs and panel beating and which sold equipment. During his testimony, Mr Cornish told the court that when he was working for the plaintiff in the period under mention; every month he would prepare a job costing card, which would reflect the amounts on invoices issued by the plaintiff for spray painting; panel beating; tow-hitching and the supply of motor canopies. Mr Cornish would then add up all the amounts invoiced to various customers for the work done by him at the end of the month, and then calculate 10% from the total amount of the invoices. Plaintiff presented the job costings for the time period which he used to guide his evidence. However and going to the root of the matter, plaintiff was unable to pinpoint exactly where the sales profit emanated from. This was despite him testifying at length with the guidance of his job costings. He struggled to distinguish between amounts invoices for old business and new business. He failed to separate the two aspects and thus the 10% which he was claiming was calculated against invoiced amounts which represented gross income, free of deductions. When put to task he was unable to justify why he felt he was owed 10% commission on the gross income for old and new business. He was unable to pinpoint what the actual sales profit was. All the figures he used in his testimony had been calculated by Mr Cornish and I find that the defendant’s legal counsel successfully challenged him on his figures under cross-examination. Further the job costings which Mr Cornish made reference to included the defendant’s invoices for the months of March, April, May, June and July 2014, which months were outside the scope of plaintiff’s suit for the claim it had made for sales profit for August to November 2014.  With regards to the relevant months, plaintiff struggled to justify why he was claiming 10% on old business. By way of an example the plaintiff added income accruing from old business such as Trojan Mine, which business was never generated by the plaintiff. Plaintiff’s claim was implausible because as much as he tried to, he was unable to show the sales profit for those months. In short plaintiff had calculated 10% on all business both old and new. On pages 16, 17 and 18 of Exhibit 1 (the bundle of documents) Mr Cornish had included invoices for money due by Trojan Nickel Mine and Croco Motors which were not new business but old business. His job costings and commission calculations were unreliable.

Mr Cornish made a very poor witness who faltered whilst he gave his testimony. At one point he kept insisting that he was entitled to 10% on sales instead of 10% of sales profit which he had alleged in his own declaration.

Mr Cornish’s evidence was full of conjecture. He made several errors which he was forced to correct when he was being cross-examined. In some of his job costings he was claiming 10% gross which did not take into account a deduction for cost of labour. It makes no sense that any sound business would agree to pay an agent commission on a certain sum where VAT and the cost of labour had not been deducted. By not making such deductions it cannot be alleged that the figure against his calculations represented actual profit. Labour costs and VAT are an integral part of any job costing thus the job costings were not of persuasive value supportive of plaintiff’s claim.

At the end of Mr Cornish’s testimony, defendant applied for absolution from the instance on the basis of the plaintiff’s failure to prove its case by not lacking any evidence before the Court upon which the Court could determine the matter in the plaintiff’s favour.

I am to determine whether the plaintiff has established the essential elements of its claim. The claim is founded on contract. The plaintiff contends that he is owed a certain amount of money in commission based upon a calculation of 10% of sales on profit. However at the end of his testimony, the court I find that the plaintiff has not made a case for the defendant to answer. The calculations which the plaintiff presented to the court were partly premised on invoices for business which the defendant had established on its’s own well before the plaintiff was given the consultancy contract. As I stated earlier, Mr Cornish struggled to explain and justify this glaring disparity, thus at the closure of the plaintiff’s case, the plaintiff had failed to provide the court with a set of facts against which to test the defendant’s case against the plaintiff’s case on a balance of probabilities.

Refer: Gascoyne v Paul & Hunter 1917 TPD 170. (Lourenco v Raja Dry Cleaners and Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151; Supreme Service Station (1969) (Pvt) Ltd v Fox and Groombridge (Pvt) Ltd 1971 (1) ZLR 1 (A)

It is my view therefore that the plaintiff has failed to found a prima facie case against the defendant. In the result I rule as follows:-

“Defendant is granted absolution from the instance”.

Messrs Dube-Banda Nzarayapenga & Partners, plaintiff’s legal practitioners

Chakanyuka & Associates Attorneys, defendant’s legal practitioners