JOSEPH T. NJANIKE

versus

NEVERMIND KUFAKUNESU

HIGH COURT OF ZIMBABWE

BHUNU J

HARARE, 9July 2010,15July 2010, 22September 2010, October 2010, 13 October 2010

                  & 8June 2011

Mr. Ruzengwe, for the Plaintiff.

Mr.Tsivama, for the Defendant.

            BHUNU J: The plaintiff is the owner of Adelina farm in the Featherstone area where he is in the business of raring Brahman cattle since 1999. His claim against the defendant is for the payment of US$9 086 being the balance of the purchase price of 26 steers sold and delivered to the defendant. That claim was eventually reduced to US$8 738 on account of the non delivery of one beast that bolted and escaped during the loading process.

            On the other hand the defendant is a business man who is in the business of selling meat from cattle he would have purchased from various farmers.

            It is common cause that some time in February 2009 the parties concluded a contract of sale wherein the plaintiff sold 26 herd of cattle to the defendant. It is also not in dispute that one of the beasts bolted and evaded delivery during the loading process. The parties are also in agreement that the plaintiff took delivery of the 25 herd of cattle, slaughtered them and sold the beef but without paying the full purchase price.

            When the plaintiff started to press for payment, the defendant initially acknowledged his indebtedness to the plaintiff both verbally and in writing on numerous occasions and in front of witnesses. It is only after he had failed to honour his undertakings to pay that he started raising all sorts of subterfuge in a bid to avoid payment.

            The contract was concluded through the defendant’s agent one Farai Muzondiwa. Farai visited the farm on 21 February 2009 where he negotiated the terms of the contract with the plaintiff. Having seen the cattle on sale and at the conclusion of the negotiations Farai wrote an invoice which he signed and endorsed his national identification number.

The invoice which was produced in evidence as exhibit two reads:

            “Steers 26 total mass of 9914 kg at $1.32 per kg. Total $13 086, 48”

            On 2 March 2009 the defendant effected payment of $3 000.00 in partial fulfillment of his obligation under the contract. He proceeded to sign on the same invoice that is to say exhibit 2 without raising any objection. He promised to pay the balance within a week but defaulted. After dilly dallying he made another payment of $1 000.00 pleading hardship in raising the money. He again signed on the invoice without raising any objections. He again pleaded hardship in raising the balance with his bankers.

            The parties exchanged text messages as will more fully appear from exhibits 3 and 4. Exhibit 4 is a transcript of various text messages the defendant sent to the plaintiff acknowledging his indebtedness to the plaintiff and promising to pay. It is beneficial to reproduce the text messages for clarity’s sake and to bring the matter into its correct perspective.

            Both in his summary of evidence defence and sworn evidence in Court the defendant made no attempt to challenge the veracity of the above numerous admissions he made to the plaintiff. His defence was simply that the plaintiff sold him beasts of poor quality resulting in him making a loss of $6 543.00. He thus claimed a reduction of the purchase price by that much.

            The plaintiff however pointed out that the defendant had admitted liability and never questioned the quality of the product he was buying until he was pressed for payment. This is what the plaintiff had to say according to my long hand notes:

“We were exchanging SMS. This is an extract of the SMS I was sending to the defendant. (Marked Exhibit 3).

Defendant was responding sending me SMS. This is an extract of the text messages I was receiving from the defendant. (Marked Exhibit 4).

Defendant never complained to me about the quality. Even his agent wrote on the invoice that I had sold him steers. The sale was based on the quality that he had seen.”

            It is an established fact beyond question that the sale was based on the quality of beasts that the defendant had seen either through his agent, personally or both. If the defendant had any queries he should have raised them either through his agent or before slaughtering the beasts. At the very least he should have raised the issue with the plaintiff before selling the meat.

            The essence of the defendant’s defence is essentially that he is trying to negotiate the price of the commodity long after the contract has been concluded and the other party has already performed his part of the bargain. It is not the function of the Court to set contractual terms. If the defendant made a poor bargain then, he is stuck with it. That being the case, it is irrelevant to try and determine the quality of meat which has already been sold and can no longer be retrieved for assessment.

            The plaintiff was an honest and credible witness who told a simple and believable story. I accept his evidence without any reservation. On the other hand the defendant displayed the demeanour of a dishonest and devious character who told an incredible fictitious story not worth of belief.

            In the result the plaintiff’s case can only succeed. It is accordingly ordered that judgment be and is hereby entered in favour of the plaintiff in the sum of US$8 738.00 (Eight Thousand Seven Hundred and Thirty-Eight United States Dollars together with costs of suit.

Mapombere, Musakana & Ruzengwe, the Plaintiff’s Legal practitioners.

Sawyer & Mkushi, the Defendant’s Legal Practitioners