1
HH 354-15
HC 11 284/12
SAMUEL MADOMBWE
versus
D RIMBI
and
JOHN ZVIKWERE
HIGH COURT OF ZIMBABWE
MUREMBA J
HARARE, 10 & 12 March 2015 and 8 April 2015
Absolution from the instance
R Mahuni, for the plaintiff
CW Guriro, for the first defendant
MUREMBA J: The first defendant was the employer of the second defendant at the time material to this case. The second defendant was employed as a commuter omnibus driver. On 13 July 2012 he was involved in a road accident with the plaintiff who was driving a Nissan Terrano registration number ACJ 5680. Following the accident the second respondent was prosecuted in the magistrates’ court and sentenced to effective imprisonment.
The plaintiff alleges that his motor vehicle was extensively damaged as a result of the second defendant’s negligence. Moreover the second defendant was not a licensed driver. As a result the plaintiff issued summons against both defendants on 27 September 2012. The first defendant is being sued vicariously as the employer of the second defendant. However, the second defendant who is serving time in prison was not served with the summons. The joint PTC conference minute filed of record is in respect of the plaintiff and the first defendant only. On the day the trial started Mr Mahuni indicated that the plaintiff was withdrawing his claim against the second defendant. Consequently this trial proceeded between the plaintiff and the first defendant.
The plaintiff’s claim is for:-
- Payment of US$ 12 000-00 being the value of the damaged motor vehicle
- Payment of US$ 100-00 per day from 13 July 2012 being the cost of hiring a vehicle
- Interest at the prescribed rate from the date of summons
- Costs of suit on a legal practitioner and client scale.
In disputing liability the first defendant in his plea said that it was not the second defendant who was negligent during the accident, but the plaintiff. The first defendant further averred that even if the second defendant was employed by him, the second defendant had duped him into believing that he was a licensed driver. As such the first defendant was a victim of fraud. The first defendant said that in that regard the second defendant had no authority to drive the first defendant’s motor vehicle. Consequently when he was involved in the accident he was on a frolic of his own. The first defendant also averred that there is no causal connection between the alleged accident and the alleged claim. The first defendant said that in any case the claim is exaggerated.
In the joint PTC minute it was indicated that both parties had effected discovery, but it turned out at trial that the plaintiff had only filed the discovery affidavit without the discovery schedule. During trial the plaintiff was the sole witness for his case.
The plaintiff’s testimony
On 13 July 2012 he was driving his Nissan Terrano along Lytton road and indicated to turn left. He was hit from behind by the commuter omnibus which was being driven by the second defendant. The Nissan Terrano rolled 3 times and landed in a maize field. The plaintiff said that it is the second defendant who was at fault. As a result he was charged with negligent driving and arraigned before the criminal court. He was convicted and sentenced.
The plaintiff said that he bought the Nissan Terrano as a second hand here in Zimbabwe in 2012 for US$12 000-00 from a person who had imported it from Japan in February 2012. He was not specific about the date that he bought it, but he said that he had used it for a couple of months before the accident happened. He said that after the accident had happened he went to panel beaters and got the following quotations: Adec panel beaters US$8 852-00 and Supreme panel beaters US$8 333-48. Croco Motors and Swiss Motors both said that due to the non-availability of spare parts the motor vehicle was beyond economic repair. In other words the motor vehicle could be repaired, but there were no spare parts for it.
The plaintiff said that when he engaged the first defendant about the cost of the repairs the defendant said that he could not pay the amounts that had been quoted by the panel beaters. He offered to pay only US$2 000-00 for the repairs which the plaintiff refused to accept.
The plaintiff said that from the date of the accident he hired a Nissan Wolf 4 x 4 to use since he had no other motor vehicle to use. He said that a Nissan Wolf is in the same family as a Nissan Terrano because both vehicles are four wheel drives. He said that he hired it from Alexio Mhizha for three months from the date of the accident at the rate of US$100-00 per day. He said that his erstwhile legal practitioners notified the defendant about the hiring of the motor vehicle. He said that after the expiration of three months the first defendant gave him a motor vehicle to use while the Nissan Terrano was being repaired. The first defendant had subsequently taken the plaintiff’s motor vehicle for repairs following a discussion to settle the matter amicably at PTC stage. He said that on 20 January 2014 the first defendant brought back the Nissan Terrano saying that it had been repaired, but the plaintiff refused to accept it because it had been poorly repaired. The first defendant took it back and also forcibly took away his car that he had given to the plaintiff to use. Once again the plaintiff was left without a motor vehicle to use. He had to resort to hiring again. He hired another car from one Steven Matongo for another three months at the rate of US$80-00 per day. By the time trial commenced the plaintiff had already paid up for the car hiring services.
As the plaintiff testified in court on 10 March 2015, he said that the first defendant had not yet returned his motor vehicle. He said that US$12 000-00 is the amount that he paid in purchasing it.
When the plaintiff gave his testimony no single document was produced to substantiate his claim for US$12 000-00 and car hiring rates of US$100 and US$80-00 per day. The quotations for the repairs that he referred to were also not produced. At the time the plaintiff was making reference to the quotations Mr Mahuni submitted that he had made an oversight and forgot to file the discovery schedule. He said that he was going to make an application to produce documentary exhibits at a later stage during trial. However, he never made that application until he finished leading evidence from the plaintiff.
Before Mr Guriro commenced cross examination of the plaintiff he inquired from Mr Mahuni if he still intended to make the application to produce the documentary exhibits. Mr Mahuni said that he no longer intended doing so.
During cross examination the plaintiff made it clear that the US$12 000-00 that he is claiming is the amount that he bought the motor vehicle for. It is not the amount that is needed to have the motor vehicle repaired. He said that the motor vehicle was insured on third party basis so he got nothing from his insurance company. He said that the first defendant’s motor vehicle was also insured on third party basis. The first defendant’s insurance company refused to pay the plaintiff because the second defendant who caused the accident was not licensed.
The plaintiff said that he bought the motor vehicle in April 2012 from a Mr Ali. He said that he was claiming US$12 000-00 which is the value that he bought it for because after buying it he spruced it up thereby enhancing its value. The plaintiff said that he wants the defendant to put him in the position he was before the accident. He said that he wants his car to be restored to its original state or to be given the equivalent value thereof to enable him to purchase a motor vehicle of a similar type. He said that although some of the panel beaters said that the motor vehicle could be repaired at a cost of around US$8 000-00 the spare parts were not available locally. This is why he was claiming the full value of the motor vehicle from the first defendant. He said that the first defendant who has the wreck can keep that wreck and pay him the full value of the motor vehicle.
The Application
At the close of the plaintiff’s case Mr Guriro made an application for absolution from the instance. The basis of the application was that the plaintiff had failed to prove a prima facie case for the claim sought. He submitted that since the plaintiff’s claim is for delictual damages arising out of a motor vehicle accident he did not lead evidence to establish:
(i) the pre accident value of his motor vehicle. There was no valuation report tendered to prove the value of the vehicle before the accident. He argued that even an agreement of sale would have sufficed to show that the plaintiff bought the vehicle for US$ 12000-00 as he alleges.
(ii) the value of the sprucing up of the vehicle thereby making its value to appreciate justifying the claim. The additionals were not valued.
(iii) the value of the damaged vehicle. He argued that in the absence of the value of the motor vehicle before the accident and its value after the accident the court could not make a determination of the plaintiff’s loss.
(iv) that he once made a claim to the insurance companies and that the claims were rejected and the basis of the rejections.
(v) the quotations to prove the value of the damages that were done to his motor vehicle.
(vi) the motor vehicle was beyond economic repair.
(vii) that the plaintiff hired motor vehicles, let alone at the rate of US$100-00 and US$80-00 per day. No lease agreements were produced to this effect. No receipts were produced as proof of payment.
Mr Guriro argued that the claim for US$12 000-00 remained unsubstantiated.
Mr Mahuni argued that the plaintiff had clearly stated the period that he hired the vehicles and said that the amounts could be easily ascertained by simple mathematical calculations. He said that the production of receipts was inconsequential. He said that as far as the value of US$12 000-00 was concerned the plaintiff bought the Nissan Terrano for that amount and that is what he simply wanted to redeem. He said that the claim is not for repairs but for replacing the motor vehicle. He said that the plaintiff adequately covered the issue of the insurance claim by stating that the first defendant’s insurance company had refused to pay because the second defendant was not a licensed driver. In any case both motor vehicles were insured on third party basis. He argued that the plaintiff had managed to prove a prima facie case. He said that the issue of receipts have no bearing on whether or not the case is prima facie.
The Law
In an application for absolution from the instance at the close of the plaintiff’s case the test is as follows.
In Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR 1 (A) at 5D-E Beadle CJ (as he then was) accepted the case of Gascoyne v Paul & Hunter 1917 TPD 170 as the locus classicus on the point. De Villiers JP at p 173 in the Gascoyne said:-
“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?……The question therefore is, at the close of the case for the plaintiff, was there a prima facie case against the defendant …..in other words, was there such evidence before the court upon which a reasonable man might, not should, give judgment against (the defendant)?”
In United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (SC) @ 343 Gubbay said:-
“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him.”
In Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (HC) [ Headnote] Smith J said:-
“In considering an application for absolution from the instance, a judicial officer should always lean in favour of the case continuing. If there is reasonable evidence on which the court might find for the plaintiff, the case should continue.”
In the cases cited above it is made clear that for an application for absolution from the instance to be granted the evidence adduced on behalf of the plaintiff should be insufficient or inadequate to prove a case or to put the defendant to his defence. The test is simply whether or not a reasonable court might grant judgment for the plaintiff.
At p 554 in Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor (supra) Smith J went on to say:-
“In case of doubt, a judicial officer should always lean on the side of allowing the case to proceed”
It therefore follows that in a matter where the judicial officer has no doubt he or she should grant the application for absolution from the instance.
In Dube v Dube HB 39-08 Ndou J said a case should not be summarily terminated simply because the evidence adduced on behalf of the plaintiff contains contradictions. Ndou J went on to quote with approval the words of Beadle CJ in Supreme Service Station (supra) by saying:-
“The learned Chief Justice also stated that a defendant who might be afraid to go into the witness box should not be permitted to shelter behind the procedure of absolution from the instance. The rules of procedure are made to ensure that justice is done between the parties, and so far as possible, the courts should not allow rules of procedure to be used to cause an injustice.”
Analysis
There is no doubt that the plaintiff led sufficient evidence to show that the second defendant was acting within the scope of his employment when the accident happened. However, the crux of the matter is whether or not the plaintiff has established prima facie that he bought the motor vehicle for US$ 12 000-00 and that he hired two vehicles on two separate occasions at the rate of US$100-00 and $80-00 per day for three months.
What I find disturbing is the evidence which was placed before me to prove the value of the Nissan Terrano. The US$12 000-00 that the plaintiff is claiming is the replacement cost of the Nissan Terrano. The plaintiff said that he bought the vehicle for that much in April 2012. He said that he had even gone on to spruce it up thereby enhancing its value before the accident. On 13 July 2012, just a couple of months later the motor vehicle was involved in an accident. To prove his damages the plaintiff did not produce the agreement of sale which shows that he bought the motor vehicle for US$12 000-00. He also did not produce any documents to show the costs of sprucing up the motor vehicle. The plaintiff did not even produce the quotations from the panel beaters which quotations served to show the amount that was needed to effect repairs to the motor vehicle. The plaintiff was simply making reference to the quotations, but his legal practitioner for reasons best known to him, indicated that he was dispensing with the production of those quotations. The plaintiff said Croco Motors and Swiss Motors had said that due to the non-availability of spare parts the motor vehicle was beyond economic repair. Again no documents were produced to substantiate this averment. Such documents would have supported the plaintiff’s claim for the replacement cost of the motor vehicle.
No lease documents were produced to prove that the plaintiff on two occasions hired motor vehicles to use. By the time trial commenced the plaintiff had already made payment for hiring the motor vehicles, but no proof of payment was tendered in court.
In Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor (supra) at p 559 Smith J had this to say:-
“With regard to the question of proof of quantum, in Mkwanazi v Van der Merwe & Anor 1970 (1) SA 609 (A) at 631, Van Winsen JA referred with approval to Herman v Shapiro & Co 1926 TPD 367 at 379 where STRATFORD J said:
“Monetary damage having been suffered, it is necessary for the court to assess the amount and make the best use it can of the evidence before it. There are cases where the assessment by the court is very little more than an estimate; but even so, if it is certain that pecuniary damage has been suffered, the court is bound to award damages.
...
It is not so bound in the case where evidence is available to the plaintiff which he has not produced; in these circumstances the court is justified in giving, and does give, absolution from the instance.
He also referred to Klopper v Mazoko 1930 TPD 860 where, at 855, TINDALL J said:
“... when a plaintiff is in a position to lead evidence which will enable the court to assess the figure he should do so and not leave the court to guess at the amount.”
As is said in Visser & Potgieter Law of Damages at p 437: D
“It is not the task of the court to award an arbitrary amount of damages where a plaintiff has not produced the best evidence upon which a proper assessment of the loss could have been made.”
In Munhuwa v Mhukahuru Bus Service (Pvt) Ltd 1994 (2) 382 (H) an application for absolution from the instance was granted because the plaintiff, in a claim for damages for parts allegedly removed from his motor vehicle, had not tendered proof of amount of the damages.
In casu, the plaintiff has not tendered any proof of the replacement cost of the motor vehicle. He also did not prove the costs of hiring two vehicles. For these reasons I will grant the application for absolution from the instance with costs.
Mahuni & Matutu, plaintiff’s legal practitioners
Ngarava, Moyo & Chikono, first defendant legal practitioners
