Sano v Chiutsi & Anor (HC 6736 of 2007; HH 194 of 2016) [2016] ZWHHC 194 (14 March 2016)

1 HH 194/16 HC 6736/07 JEAN EDISON SANO versus PUWAYI CHIUTSI and SMART MOYO HIGH COURT OF ZIMBABWE MAWADZE J HARARE, 14 March 2016 Unopposed Application Applicant in Person Respondents in default MAWADZE J: On 19 August 2015, I granted the following order in the motion court against the first defendant only. “IT IS ORDERED THAT; 1. 1st defendant be and is hereby ordered to pay us $7 500-00 to the plaintiff being the replacement value of the Toyota Liteace registration No. AAF 0667 2. 3. 1st defendant be and is hereby ordered to pay US$27 430-00 to the plaintiff being loss of business. 1st defendant to pay costs of suit.” I was then requested through the Registrar on 22 January 2016 to provide what were called reasons for the judgement in this matter. On 25 January 2016 I advised the Registrar that this matter was set down on the unopposed roll on 19 August 2015 and that the order I granted was granted in default. On 14 March I was again asked by the Registrar that the first defendant still requires me to provide reasons for the so called judgement. All I can do is to explain the order I granted in default as the matter was not opposed. HH 194/16 HC 6736/07 For clarity purposes the plaintiff issued summons out of this court on 27 November 2007 and served the first defendant on 4 December 2007. The first defendant entered an appearance to defend and as per the record the first defendant failed to file a plea after being requested to do so on 2 January 2008. As a result the first defendant was barred. The plaintiff then proceeded to set the matter on the unopposed roll and I only dealt with the matter on 19 August 2015. The plaintiff’s claim as per the declaration is that he was a registered owner of a Toyota Liteace registration number AAF 0667 and that he lost a case in the magistrate court to the first defendant’s client one Sylvester Michael but appealed to the High Court. The plaintiff avers that while the appeal was pending in the High Court the first defendant misrepresented to the second defendant who is the messenger of court that the appeal had been dismissed. As a result the plaintiff avers that due to this misrepresentation the plaintiff’s said motor vehicle was sold improperly in execution of a judgement which the plaintiff had appealed against. Further the plaintiff avers that the said motor vehicle was sold to the very same person the first defendant was representing and that both the defendants acted improperly. The plaintiff said he had purchased this motor vehicle for purposes of hiring it out to tourists and that he had secured all relevant documents to start that business. In the affidavit of evidence filed on 5 January 2015 in the plaintiff abandoned claims in respect of loss of business, punitive damages and loss of income. Instead the plaintiff sought an order in respect of the replacement value of the said motor vehicle, loss of business for only a period of 2 years and costs of suit. In the same affidavit of evidence the plaintiff in great detail outlined the history of this matter which history I have no cause to repeat suffice to say that the plaintiff attached relevant documents as Annexures to the affidavit of evidence. What informed the order I granted in default is that this was an unopposed matter. The plaintiff attached proof of his ownership of the said motor vehicle. In addition to that the plaintiff attached documents to show that he had been issued with the operator’s licence, the road transport operator’s licence, the certificate of registration as a designated tourist facility and other relevant documents to support the claim. HH 194/16 HC 6736/07 The plaintiff explained that he had obtained a licence valid for 2 years. In addition to that the plaintiff attached proof of the replacement value of the said motor vehicle which is given as US $7 500-00. In relation to loss of business the plaintiff relied upon documents from Rockshade Car Rentals and Tour’s hiring rates to calculate his loss of business per day which gave him total for the period of 2 years which the plaintiff said was premised on the duration of the licence issued. Out of the total the plaintiff subtracted the cost of service of the said motor vehicle, insurance and other related overhead expenses and claimed a total of US $27 430-00. As already said this was an unopposed matter and the plaintiff’s evidence as per the affidavit of evidence remained uncontroverted. It is on that basis that I granted the order sought together with costs of suit.