CASE NO.: SA 07/2001
IN THE
SUPREME COURT OF NAMIBIA
In the matter between:
FIRST
NATIONAL BANK OF NAMIBIA LTD APPELLANT
And
ALOYSIUS
ABRAHAMS RESPONDENT
Coram:
Strydom, C.J.; O’Linn, A.J.A. et Chomba, A.J.A.
Heard
on: 10/10/2001
Delivered
on: 28/03/2002
APPEAL JUDGMENT
Chomba,
A.J.A.: By a combined summons dated 14th April
1999, Mr. Aloysius Abrahams commenced civil proceedings in which he
was claiming damages for breach of contract. The action was against
the First National Bank and was tried by Levy, A.J., in the High
Court. Judgment was given in favour of Mr. Abrahams who was awarded
N$198,905.32 in damages, together with interest at the rate of 20%
from the date of the summons, and costs. Being dissatisfied with
both the verdict and award, the First National Bank has appealed to
this court. For the sake of convenience, I shall in this judgment
refer to the Appellant and Respondent by the roles they had at the
trial, namely the Respondent as the Plaintiff and the Appellant as
the Defendant.
Mr.
R.W.F. McWilliams SC, assisted by Advocate Vivier and Mr. David
Beasley SC, assisted by Advocate B. Maselle, appeared before us
representing the Defendant and Plaintiff respectively. I would like,
at the outset, to pay tribute to all the Learned Counsel for the
erudite manner in which they presented their submissions and the
evident illustrious preparations they made in anticipation of the
appeal hearing.
In
the Particulars of the Claim accompanying the combined summons it was
alleged that on or about 16th March 1994 at Windhoek the
Defendant, represented by its duly authorized but unnamed employee,
entered into a Suspensive Loan Agreement with the Plaintiff. The
agreement entailed purchase by the Plaintiff of two trailers which
were to be supplied by a third party, while the Defendant was to
finance the transaction by paying to that third party a sum of
N$80,000 in respect of the one trailer, the Zali, and N$65,000 for
the second trailer, the Zelna. The total financing involved was
N$171,817 which included various bank charges. According to the
agreement, which was in writing and executed by the parties with
their respective witnesses on the 16th of March 1994, the
Plaintiff was to repay that amount by way of instalments spread over
a period of 60 months, commencing on 1st May 1994. the
last instalment was payable on the 15th March 1999.
The
Suspensive Sale Agreement was produced by the Plaintiff by mutual
consent. It shows the Plaintiff as the buyer and the Defendant as
the Seller. The serial or chassis numbers on the trailers are shown
as 880315143060 for the Zali and 0693927 for the Zelna. All these
details, together with those mentioned in the preceding paragraph,
are reflected on the obverse side of the agreement, while on the
reverse side there are printed a number of conditions to be observed
by both parties.
It
is now necessary to summarise the essence of a Suspensive Sale
Agreement. An intending buyer of specific and identified goods would
conclude negotiations with the supplier thereby ascertaining the
goods and also the purchase price. The buyer is required to satisfy
himself/herself that the goods are fit for the intended purpose.
Thereafter he/she would request the supplier to furnish an invoice
detailing the goods to be sold and purchased, name and address of the
supplier, name and address of the buyer and the price. The invoice,
is addressed to the financier, usually a bank. The buyer would then
apply to the bank for the financing of the transaction on the
strength of the invoice. Upon acceptance of the application, a
Suspensive Sale Agreement, which is a stereotype printed form is
completed and executed as hereinbefore stated. Subsequently a
delivery note, also a stereotype printed form is completed. The
latter is addressed to the supplier as per the invoice. The
delivery note in effect calls on the supplier to deliver the goods in
good order and to the satisfaction of the buyer who is to accept
delivery as an agent of the bank. Further the note states that after
the buyer has inspected the goods, the supplier should arrange for
the buyer to sign an acknowledgment of the delivery which is the
bottom part of the delivery note itself. The bank thereby
undertakes, upon receipt by it of the duly completed acknowledgement
of delivery, to pay the purchase price to the supplier.
Before
reviewing the evidence in this matter, let me reproduce herein a few
of the salient conditions in the Suspensive Sale Agreement.
Para 2 . Declaration and
Acknowledgment
Buyer
agrees to recognize FNB as the new owner
and to hold the goods as
bailee on behalf of FNB
subject to the terms of the
agreement and that any right recorded herein in favour of Seller,
shall on cession enure to the benefit of FNB
acknowledges
that prior to the signing of the agree-
ment and the schedule
(except in respect of the registration number, if any of the goods)
were fully completed and that the particulars set forth therein are
true and correct.
If
FNB is Seller under this agreement, Buyer shall, when
Receiving delivery of the
goods be deemed to be acting as the agent of FNB for the sole purpose
of accepting delivery on behalf of FNB from the supplier, being the
person selected by Buyer from whom FNB shall have purchased the
goods, which Buyer shall have selected and approved as being fit for
the purpose for which Buyer requires them, for resale to Buyer in
terms of this agreement.
Paragraph 4 - Ownership and
Risk
Ownership
in the goods shall remain vested in Seller and not
pass to Buyer until receipt
by Seller of all amounts payable by Buyer under this agreement.
All
risk of loss damage destruction or otherwise in and to the goods
shall pass to Buyer on delivery to Buyer or on signature of this
agreement whichever is the earlier, and all costs of delivery and
installation of the goods and insurance in transit shall be borne
and paid by Buyer.
Paragraph 7 - Use of the
Goods
Buyer
shall at all times, keep the goods in his possession and control,
and take reasonable care in the use of the goods and shall at his
own cost and expense maintain the goods in proper working order,
and if a motor vehicle in a roadworthy condition and shall protect
them from loss or damage if the goods are not to be kept at Buyer’s
chosen domicilium. Buyer shall upon taking delivery of the goods
notify Seller in writing of the address of the premises (“the
designated address)” in or upon which the goods will be kept and
notify Seller in writing immediately there is any change in such
address or of the place where the goods are kept. Furthermore
Buyer shall at his own expense keep the goods free from
attachment, hypothec or other legal charge or process and shall not
without the prior written consent of Seller sell, let, loan,
pledge, transfer, or otherwise encumber the goods in any way or
permit any lien to arise in respect of the goods.
As
earlier noted, the Plaintiff filed particulars of claim in support of
his combined summons. It is necessary to refer only to some of the
paragraphs of these particulars, viz:
Paragraph
3
On or about the 16th
March 1994 and at Windhoek the Plaintiff acting personally and the
Defendant, represented by a duly authorized employee entered into a
written Suspensive Sale Agreement in respect of two trailers – the
one a Zelna and the other a Zali – which are hereinafter referred
to as the “trailers”. Copies of the obverse and reverse sides of
the aforesaid Suspensive Sale Agreement are annexed hereto marked
“A1” and “A2” respectively. The Plaintiff prays that the
terms of the Suspensive Sale Agreement be incorporated herein as if
specifically traversed.
Paragraph
4
It was a material express,
alternatively implied, term of the aforesaid suspensive sale
agreement that the Defendant was the owner of the trailers and would
be able to pass ownership of the trailers to the Plaintiff.
Paragraph
5
The Defendant breached the
aforesaid written Suspensive Sale Agreement in that, (the
Defendant):-
during
or about March 1995 entered into a written Suspensive Sale
Agreement with Mr. Bindeman in terms whereof the Defendant sold to
Mr. Bindeman who purchased from the Defendant, the Zali trailer
with chassis number 880315143060 and pursuant to that agreement Mr.
Bindeman obtained ownership of the trailer. As a consequence the
Defendant was not able to pass ownership of the trailer to the
Plaintiff.
at
the time of conclusion of the agreement was not the owner of the
trailers.
6.
a) As a result of the aforesaid breach the Plaintiff has
cancelled,
alternatively,
hereby cancels the written Suspensive Sale
Agreement
Alternatively to 6 a):
Performance
in terms of the written Suspensive Sale Agree-
ment was impossible at the
time and during the existence
of the said agreement
inasmuch as the Defendant was
not the owner of the trailers
nor in a position to transfer
ownership in and to the
trailers to the Plaintiff.
As
a result of the aforesaid the agreement terminated,
alternatively was void
.
The
Plaintiff is not in a position to tender return of the trailers
to the Defendant inasmuch as
the Defendant, alternatively,
a third party has taken
possession thereof.
Paragraph
7 – Alternatively to paragraphs 4 to 6 aforegoing the
Plaintiff
pleads :-
the
Defendant, at the time of entering into the written
agreement and represented
by an authorized employee,
represented to the
Plaintiff that it was the owner of the
trailers.
The
aforesaid representation was material and was made:
with
the object of inducing the Plaintiff to enter into
the written agreement with
the Defendant: and/or
with
the knowledge that the Plaintiff would act on
the assumption that:
the
Defendant was the owner of the trailers;
the
Defendant would at the conclusion of the
agreement be able to give
the Plaintiff free
and undisturbed possession of
the trailers,
and the Defendant owed a duty
of care towards the Plaintiff to provide correct information.
The
Plaintiff relying on the truth of the representation
entered into the written
Suspensive Sale Agreement with
the Defendant.
At
the time of negotiating the agreement and at the time of
entering into the written
suspensive sale agreement, the
respresentation was false in
that the defendant was not the owner of the trailers and such
representation was made negligently alternatively intentionally.
As
a result of Defendant’s misrepresentation as aforesaid the
Plaintiff cancelled alternatively hereby cancels the agreement.
Alternatively
to paragraph 7 (e) above had the Plaintiff known of the true
position, the Plaintiff would not have concluded the agreement with
the Defendant on any basis at all.
The
Plaintiff is not in a position to tender return of the trailers to
the Defendant inasmuch as the Defendant, alternatively a
third party has taken possession thereof.
In
its pleading in reply to the claim by the Plaintiff the Defendant
denied the allegations in all the paragraphs reproduced above from
the particulars of claim and put the Plaintiff to strict proof, as
indeed it did to the rest of the controversial particulars.
The
only witness called in support of the Plaintiff’s case was Mr.
Johannes Bindeman. Herein below is a summary of his evidence:
At
one time Bindeman was the owner of both trailers which, as we have
already seen, were the subject of the Suspensive Sale Agreement
between the Plaintiff and the Defendant on the 16th of
March 1994. Bindeman testified that he purchased the Zali, also
known as the Zanli semi-trailer, from a Mr. Du Plessis in
Johannesburg sometime in 1993. He had it registered in Aranos,
Namibia, as N149AR. Regarding the Zelna, he stated that he bought it
from Zelna Trailers in Alberton in 1992 or 1993. Bindeman
subsequently registered the Zelna as N567AR. Operationally he used
the Zali semi-trailer at the front and the Zelna at the back, both
hooked to the Scania horse or Tractor which was also his property.
It would appear that later in 1993 he sold the Scania horse and
remained only with the two trailers. The trailers remained idle for
sometime at Bindeman’s farm. Later a friend and business partner
of his, one Andriano Schneider, noticing the idle trailers, suggested
to Bindeman that the two trailers could make money. Schneider
mooted the idea of loaning both trailers, to which Bindeman was
agreeable. Bindeman was imprecise as to the nature of the loan,
whether gratuitous or was by way of renting.
In
1993 or 1994 Bindeman bought another Scania horse. He later entered
into a contract with a company known as Pupkewitz to transport Zinc.
For this purpose he needed, and did recover, the Zali trailer from
Schneider. The actual recovery of the Zali was done some two or
three months before he purchased the second Scania horse - he did
this in anticipation of the Pupkewitz contract. Bindeman further
disclosed that from the date of the recovery of the Zali he retained
it in his possession throughout until the end of 1998 or beginning
of 1999 when he sold it to one John George Thompson. In fact under
cross-examination Bindeman disclosed that he remained the owner of
the Zali right from the time he bought it in 1993 from Mr. Du Plessis
up to the time he sold it to Mr. Thompson in 1998 or 1999.
Documentation produced before the court a quo indicates that the
Bindeman-Thompson Zali sale was similarly by way of a Suspensive Sale
Agreement with the Bank Windhoek as the financier.
It
was Bindeman’s evidence that the Zelna remained with Schneider
from the time when he, Bindeman, retrieved the Zali up to the time
of Schneider’s death in 1997. However Bindeman did not know the
actual physical whereabouts of the Zelna for sometime both before
and after Schneider’s death. After Schneider’s death Bindeman
made some concerted effort to try to locate the Zelna, which had
continued to be his (Bindeman’s) property, and did so through his
Attorneys, K.S. Dannhauser. He did not succeed.
Under
cross-examination Bindeman swore that he never sold the Zelna to
anybody at all, thus re-affirming his evidence that Schneider had
kept that trailer only as per loan arrangement to which reference has
been made earlier herein.
During
his business travels in his newly acquired Scania horse and while
towing the Zali trailer attached to it Bindeman once came across
Abraham’s driver. This was at the Ariamsvlei border post between
Namibia and South Africa. He noticed that coupled to that driver’s
own horse was the Zelna and another trailer which had same
registration number, that is to say N149AR, which belonged to the
Zali trailer which was at that time connected to Bindeman’s horse.
On being questioned about the Zelna, the driver explained that a Mr.
Abrahams, the Plaintiff herein, had purchased it from somebody.
Later Bindeman brought to the attention of Schneider this anomaly of
the duplication of the Zali registration number on one of Abrahams’
trailers. Schneider promised that he would rectify the situation.
As for the Zelna Schneider explained that Abrahams had just borrowed
it from him.
Bindeman
also testified that at one time he was indebted to Schneider in the
sum of N$55,000 but did not have the means of paying it back. So he
asked Schneider to issue an invoice to enable Bindeman get money
from the Defendant. To this end Schneider made out an invoice on
paper letter headed, “A.C.C. Agencies”. This documentation is
to be found at page 226 of Volume C of the Bundle of Documents with
the following details written or printed on it :
Addressee
: First National Bank of Namibia, Box 2941,
Windhoek
Invoice
No. : 0140
Date
: 28th March 1995
Quantity
and description: 1 x 1995 Rebuilt Henred Trailer
Chassis
No. : 880315143060
Buyer :
J.K. Bindeman, Box 318, Aranos
Price :
N$95,000.
Needless
to state that the supplier, according to this invoice, was A.C.C.
Agencies, a company owned by Schneider.
In
consequence of that invoice, the Suspensive Sale Agreement was
concluded and executed by a representative of that Bank and by
Bindeman. The details of the goods subject of the Suspensive Sale
Agreement were as per the invoice aforesaid. The date of execution
of the agreement is shown as 29th March 1995; mode of
repayment 36 monthly instalments with effect from 29th
March 1995 and to be completed on the 28th of March 1998.
(See at page 225 of Volume C). One copy of this Suspensive Sale
Agreement was handed to Mr. Bindeman. A copy of this is at page 220
of Volume C and this copy has the word “COPY” in bold print
across it. On this copy Mr. Bindeman scored through the word
“Henred” and superimposed over it the word “Zanli”.
The
invoice and the Suspensive Sale Agreement were put under scrutiny
during cross-examination of Mr. Bindeman. He disclaimed the latter
as a Suspensive Sale Agreement and instead called it a mere loan
agreement whereby he borrowed from the Defendant N$95,000 and pledged
the Zali trailer as a collateral, adding that he needed the money in
order to repay the loan to Schneider. Challenged as to why he used
the artifice of the Suspensive Loan Agreement when all that he needed
was a loan, Bindeman confessed that not only he alone resorted to
such practice when in need of money. He was also challenged on his
self confessed cancellation of the word “Henred” and replacement
herewith of a “Zanli”. Bindeman lamely insisted that the trailer
at issue in that transaction was not a Henred, as he had never ever
in his life owned a Henred trailer. He further explained that the
invoice was not made by himself but by Schneider; equally the
insertion of Henred in the Suspensive Sale Agreement was not one of
his making, but that of the bank, the Defendant, Bindeman said. When
it was bluntly put to him that he defrauded the Defendant in that
transaction by representing falsely that he was intending to buy the
trailer indicated therein to be supplied by A.C.C. Agencies,
Bindeman apparently found no way of escape and answered - “Yes, we
do this for me to get the money by the bank”. (see at page 237,
lines 16 – 18, Volume 3 of the record of appeal). In
cross-examination Bindeman confessed that at the time of this
Suspensive Sale Agreement the Zali trailer was in fact in his
possession at Aranos and that he never purported to buy it from
anybody. Yet on the supporting invoice it was stated that the
trailer was to be delivered by A.C.C. Agencies to Bindeman in Aranos.
While
under the pressure of cross-examination Bindeman was forced to make
the following admission as reflected at page 226, lines 20 to page
227 line 4 Volume 3 of the record –
“Ms.
Vivier Turck - Yes, and you also earlier indicated it is quite
possible
to remove a plate or to have a plate
punched
out with the same chassis number
as
yours.
Bindeman Yes
he (ie. Schneider) can do it.
Ms.
V. Turck You say it is easy to do that?
Bindeman Ja
Ms.
V. Turck So it is quite possible, now there are two trailers
with
the same number, it is possible that they
may
have had the same chassis number and
that
one was in fact sold to Mr. Abrahams that
was
not yours?
Bindeman The
front one, Ja.”
The
reproduction and any imprinting of duplicate chassis numbers is also
elaborated on at pages 147 – 148 of the appeal record where the
following occurs from line 20:
Ms.
V. Turck Where is the chassis number usually found on
the
trailer?
Bindeman You
put it under a plate, on small place, they
stencil
it on a plate.
Ms.
V. Turck And that can also be removed at leisure?
Bindeman Yes.
Ms.
V. Turck And moved about?
Bindeman Yes.
A few times he(Schneider) told me he only pay for one trailer and
there run now three trailers on my number.”
And
at pages 149 – 150 the following dialogue continued in the some
vein:
“Ms. V. Turck Yes. Mr.
Bindeman, the reason why I ask you
this is, you say that Mr.
Schneider practiced in that way, he says you, only need one Zelna and
one Zali and thereafter you just change number
plates
and chassis numbers and things and …….”
Court No,
who said about chassis numbers, he never
said
that he changed chassis numbers.
Ms.
V. Turck Well, I did ask him whether the chassis number
could
easily be placed on another truck.
Bindeman Yes,
you could have.
Ms.
V. Turck It is just a plate that you loosen it or you can
make
a duplicate and put it on another truck
or
trailer?
Bindeman Yes,
everybody can put this chassis number on
a
trailer. If I built the trailer I quickly just put
the
chassis number on with my own, I built lots
of
trailers.”
On
behalf of the Defendant it has been submitted by Mr. McWilliams,
inter alia, that Bindeman’s evidence was “wholly unsatisfactory
and should have been rejected in its entirety ” (Heads of Argument
at paragraph 27.2). In further argument at paragraph 27.3 the
Appellants’ Heads of Arguments state –
“Even
if one were to accept the evidence of (Bindeman)
upon which the (Plaintiff) relies, when one analyses
this evidence it does not provide a foundation for the
(Plaintiff’s) claim”.
In
retort to the foregoing, the Heads of Argument on behalf of the
Plaintiff state as follows in paragraph 4 :
“4.1 Bindeman
was criticized by Counsel for the Bank
(Defendant)
as being a “poor witness, and unsatisfactory
in
many respects” and whose evidence should be rejected.
The
Court a quo was fully alert to this criticism. There is no
doubt that Bindeman was not
an ideal witness. Despite
this, the court a quo was
prepared to accept his testimony
in certain respects.
There are no good grounds for
rejecting the approach adopted by the court below.
No misdirections are relied
upon by the bank and general approach is that an appeal court will
be slow to interfere with the findings of credibility made by the
lower court. See generally R v Dhlumayo and Anor 1948(2) S.A.
677(A)”
Upon
a proper reading of the judgment of the trial judge it is indeed
correct that to a large extent the verdict in favour of the plaintiff
was founded on the credibility tagged to Bindeman’s evidence.
Therefore the submission on behalf of the Plaintiff that the
appellate court ought to be slow in interfering with the trial
court’s decision based on the credibility of witness ses was well
founded. It is a well established and recognized legal truism,
indeed it is a principle of law, that a trial judge has an advantage
over an appellate court in that the judge has seen and heard the
witnesses and therefore is in a better position to assess their
credibility.
In
the case of Watt or Thomas v Thomas (1947) A.C. 484 Lord Thankerton
(sitting in the House of Lords with Viscount Simon, Lord McMillian,
Lord Simmonds and Lord du Parq) stated at page 487 –
“1. Where a question of
fact has been tried by a judge without a jury and there is no
question of misdirection of himself by the judge, an appellate court
which is disposed to come to a different conclusion on the printed
evidence, should not do so unless it is satisfied that any advantage
enjoyed by the trial judge by reason of having seen and heard the
witnesses, could not be sufficient to explain and justify the trial
judge’s conclusion.
The
appellate court may take the view that, without having seen or heard
the witnesses, it is not in a position to come to any satisfactory
conclusion on the printed evidence.
The
appellate court, either because the reasons given by the trial judge
are not satisfactory, or because it unmistakably so appears from the
evidence, may be satisfied that he has not taken proper advantage
of his having seen and heard the witnesses, and the matter will then
become at large for the appellate court.”
Furthermore
in Benmax v Austin Motor Company Limited (1955) 1 All ER 326,
another House of Lords case, the headnote reads -
“An appellate court, on an
appeal from a case tried before a judge alone should not lightly
differ from a finding of the trial judge on a question of fact, but a
distinction in this respect must be drawn between the perception of
facts and evaluation of facts. Where there is no question of
credibility of witnesses, but the sole question is the proper
inference to be drawn from specific facts, an appellate court is in
as good a position to evaluate the evidence as the trial judge, and
should form its own independent opinion, though it will give weight
to the opinion of the trial judge.”
In
the present case the learned trial judge assessed the evidence of
Bindeman by stating the following at page 352 of Volume 4 of the
Appeal Record, i.e. in his judgment –
“(Bindeman) certainly
impressed the court with a sound knowledge relating to trailers.
This knowledge was tested in cross-examination but not dented”.
And
on page 354 he said –
“Bindeman
is an objective witness with no interest in this matter.”
That
assessment quite clearly shows that the judge held Bindeman to be a
credible witness. But was he satisfactory? And if not, in what
respect was he not satisfactory? The answer to the first part of
this question is provided by the Plaintiff’s own appeal advocate
Mr. Beasley, who submitted, as shown earlier herein, namely –
“Bindeman was criticized as
being a poor witness and not satisfactory in many respects. The
court a quo was fully alert to this criticism. There is no doubt
that Bindeman was not an ideal witness.”
This
was a concession that Bindeman was not a satisfactory witness, albeit
that the court found him to be credible. We should therefore
explore in what way, his credibility notwithstanding, Bindeman was
not a satisfactory witness. It is necessary to make this exploration
and in doing so I propose to rely on Lord Thankerton’s dictum in
Watt or Thomas, supra, when he said –
“The appellate court,
either because the reasons given by the trial judge are not
satisfactory or it unmistakably so appears from the evidence, may be
satisfied that he has not taken proper advantage of his having seen
and heard the witnesses, and the matter will then be at large for the
appellate court.”
I
equally rely on Benmax, supra, to the extent that the headnote
states that where there is no question of the credibility of
witnesses, but the sole question is the proper inference to be drawn
from specific facts, an appellate court is in as a good position to
evaluate the facts as the trial judge, and should form its own
independent opinion.”
A
well worn legal principle states that he who asserts the affirmative
must prove his assertion. In other words when a plaintiff sets out
particulars of his claim, he thereby makes only allegations. These
have to be proved. Indeed we have seen that on all controversial
particulars given by the plaintiff herein, the defendant has him to
strict proof.
The
basic breach of contract which is alleged in the present case is
that the Defendant, having bought and resold the Zali and Zelna
trailers through the mechanism of the Suspensive Sale Agreement on
the 16th March 1994, later entered into yet another such agreement
on 29th March 1995 whereby one of the same trailers, the Zali, was
sold to Bindeman. As a result of that second resale the defendant,
being the person in whom ownership in the trailers was vested under
the sale agreement of 16th March 1994, disabled itself from
transferring, at the time of maturity of the said sale of 16th
of March 1994, such ownership to the Plaintiff. I pose the question.
Was that breach proved by the Plaintiff’s only witness, Bindeman?
Bindeman’s
total evidence in this regard was that he bought the Zali and Zelna
Trailers way back in 1992 or 1993. He used them in tandem with his
scania horse until sometime later in 1993 when he sold that horse.
The trailers then remained for sometime idle on his farm. In due
course, his friend and business partner, Schneider, borrowed the two
trailers and used them in business. At yet a later stage Bindeman
purchased a second scania horse. For the purpose of utilizing that
horse in a transport contract which Bindeman then had with Pupkewitz,
Bindeman withdrew the Zali from Schneider. The Zali thereafter
remained in Bindeman’s physical possession until he sold it to
Thompson at the end of 1998 or at the beginning of 1999. As for the
Zelna Trailer, this remained with his friend Schneider up to the time
of Schneider’s death in 1997. Thereafter he took action through
his Attorneys to recover the Zelna.
The
nearest Bindeman came to proving that the Zali trailer went through
a sale by way of a Suspensive Sale Agreement on the 29th
March, 1995, was when he stated that during that period Bindeman had
a loan of N$55,000 from Schneider. Not having his own independent
means of repaying that loan, he conceived the idea of getting yet
another loan from the defendant in order to pay Schneider. To that
end Bindeman asked Schneider to let him have an invoice to present to
the defendant.
That
invoice, as we have earlier seen, represented that the A.C.C.
Agencies, a company owned by Schneider, had a rebuilt Henred trailer,
chassis number 880315143060, for delivery to Bindeman upon payment
of N$95,000. It was on the basis of that invoice that the 29th
of March 1995 agreement was concluded, showing that the
Defendant bought and resold the said rebuilt Henred trailer to
Bindeman for the basic price of N$95,000.
I
have shown hereinbefore that under cross-examination Bindeman
disclaimed the transaction of 29th March 1995 as a Suspensive Sale
Agreement; he denied that the trailer concerned therein was a rebuilt
Henred, but a Zali; to that end he cancelled the word “Henred”
and superimposed over it the word “Zali”, doing so only on the
copy supplied to him by the Defendant. Bindeman conceded that the
copy (of that transaction) which remained with the Defendant, and
which was exhibited at the trial during Bindeman’s
cross-examination still had the description of the trailer sold as a
“rebuilt Henred”. Moreover, Bindeman denied the clear statement
in the A.C.C. Agencies’ invoice suggesting that the rebuilt Henred
trailer, which, as we have seen, was, according to Bindeman, not a
rebuilt Henred but a Zali, to be delivered to Bindeman at Aranos.
Bindeman asserted that in fact at the material time the Zali was in
his physical possession at Aranos. Bindeman moreover brazen-facedly
had no option but to confess that as regards the so called Suspensive
Sale Agreement of 29th March 1995 he did defraud the
Defendant, the transaction having been a fake sale.
In
a nutshell the only credible evidence Bindeman gave regarding his
association with the Zali trailer was this. Having bought it in
Johannesburg sometime in 1992 or 1993, it remained in his ownership
and possession throughout, save for a period of two to three months
when it was on loan to Schneider; he only disposed of it by sale to
Thompson in 1998/99. On 29th March 1995, however, he was
involved with Schneider in a cooked up fake sale of the Zali by
presenting it to the Defendant as a rebuilt Henred trailer, but
otherwise with the same Zali chassis number 880315143060, and, as a
result, he obtained N$95,000, out of which he paid Schneider
N$55,000. He categorically denied having sold the Zelna to anybody,
excepting its being loaned and retained by Schneider up to 1997 when
Schneider died.
It
will clearly be seen, therefore, that Bindeman’s evidence was a
far cry from the allegation of breach asserted in paragraph 5 of the
particulars of claim which suggested that the Defendant divested
itself of the ownership of the Zali by reselling it to Bindeman on
29th of March 1995 during the existence and continuance of
the Suspensive Sale Agreement which the Defendant had concluded with
the Plaintiff on 16th of March 1994. In fact Bindeman’s
evidence was blatantly in contradiction with the Plaintiff’s
allegation that the plaintiff bought the trailers through the
Suspensive Sale Agreement on the 16th of March 1994. This
begs the question whether the so called Suspensive Sale Agreement
of 16th of March 1994 was not another bogus transaction.
It is my considered view
that once the averment in paragraph 5 of the particulars of claim
is irreparably dented, then the Plaintiff is left with no leg to
stand on in his claim against the Defendant. That averment was most
pivotal to the case against the Defendant.
The
strength of a party’s case must be self sustaining: it must never
be propped up by reason of the weakness of the case of the opposite
side. This is a truism to which the trial judge in this case, with
due respect to him, seemed oblivious. His judgment shows that he
dwelt in extenso on the weaknesses of the Defendant’s
pleadings. In doing so the learned judge allowed those weaknesses to
over shadow the emptiness of the Plaintiff’s supporting evidence.
If
the obverse side of the Plaintiff’s case does not stand the test
of scrutiny because of the failure by Bindeman’s evidence to prove
the Plaintiff’s basic averment, let us look at its reverse side –
the case as presented by the Plaintiff having been the unusual
witness for the Defendant. I propose to do this merely ex
abundante cautela . Let us see whether that case fills up the
yawning gap which Bindeman’s evidence shied away from plugging .
In
his evidence the Plaintiff, Abrahams, emphatically said at the outset
that when he entered into the agreement of 16th March 1994
earlier mentioned, he did not take delivery of the trailers soon
after the agreement was executed. It was his evidence that the
trailers were delivered to him three or four months after the
execution of the contract, adding that that was because the trailers
were not in good working condition at the time of the sale. His
attention was drawn to the delivery receipt to be found at page 90 of
the volume A of the record of appeal. That receipt contained the
information requesting A.C.C. Agencies, the suppliers of one Zali
trailer and one Zelna trailer to deliver to the Plaintiff as a
customer of the Defendant and was signed on the 16th of
March 1994 by a representative of the Defendant. It is there stated
also that upon delivery of the goods sold, the trailers, the customer
should inspect the goods and then sign an acknowledgement of
delivery. During the questioning by Ms. Vivier Turck, Abrahams
acknowledged his signature on the said receipt and added that he
appended it thereon on 16th March 1994, the very day of
the Suspensive Sale Agreement. Notwithstanding his admission that he
so signed the acknowledgement the Plaintiff asserted that he did not
take delivery of the trailers as acknowledged. The Plaintiff was
further asked if he had seen or inspected any of the two trailers
before he bought them by way of the Suspensive Sale Agreement. He
answered that he did not.
An
affidavit which is at pages 14 – 20 in volume A of the record was
put to the Plaintiff while he was in the witness box. He
acknowledged it to be an affidavit he swore in regard to the court
action he had instituted against Schneider. The position as
represented in that affidavit was succinctly that by the Suspensive
Sale Agreement of 16th of March 1994 aforesaid the
Plaintiff bought the Zali and Zelna trailers from Schneider. However
the Plaintiff did not take delivery of the trailers upon concluding
the agreement that day. He instead took delivery on the 15th
of July 1994. This was because at the time of the agreement the
trailers were not in good working order. By 15th of
September 1994 the mechanical problems of the trailers had worsened
and the plaintiff had to, and did, return the trailers to Schneider
for further attention.
The
Plaintiff swore in terms of that affidavit that while the two
trailers were with Schneider after their return to him, the
Plaintiff’s pleas for Schneider to surrender them back were falling
on deaf ears. Schneider was continually giving excuses for
non-delivery. Eventually at the end of February 1995 the Plaintiff
and Schneider agreed that Schneider would repurchase the two trailers
from the Plaintiff at a price equivalent to the outstanding balance
on the Suspensive Sale Agreement of 16th March 1994. That
deal was concluded legally with the involvement of the Attorneys of
both the Plaintiff and Schneider.
At
pages 320 to 321 occurs a text as to how the foregoing repurchase
proceeded -
“Vivier Turck Yes. What
was your concern in regard to the payment to the Bank, What was your
way?
Plaintiff Well there were no
concerns. After (Schneider) took over the trailers he said that he
would pay for the trailers. But after he passed away the bank came
back to me.
Vivier Turck Sir, is it
correct that (Schneider) paid for these trailers until he passed
away?
Plaintiff Yes.
That is correct.
Vivier Turck That this whole
application was brought about because at one stage (Schneider) didn’t
pay and he didn’t comply with his commitment to you?
Plaintiff That
is correct, on a certain stage he didn’t pay.
Vivier Turck And you
took him to court to enforce your agreement, is that correct?
Plaintiff That’s
correct”
It
is patently clear to me that the plaintiff did not cut a good figure
as a witness. In a nutshell his story was that after he had
concluded the Suspensive Sale Agreement and acquired the two
trailers, he returned them to Schneider so that the latter could put
them into good working order. Schneider procrastinated in that
assignment and by February 1995 the Plaintiff was fed-up and decided
that Schneider should retain the trailers permanently. He therefore
resold them back to Schneider. That resale was by way of Schneider
taking over the Plaintiff’s obligations under the Suspensive Sale
Agreement of 16th March 1994. That deal concluded,
Schneider duly paid subsequent instalments as they fell due.
Regrettably, Schneider died before he finished paying the outstanding
balance.
The
question I pose is, if the Plaintiff sold the Zali and Zelna trailers
back to Schneider in February 1995, how could the Defendant sell the
very same Zali trailer on the 29th March 1995 to Bindeman?
In my view the pleading in paragraph 5.1 of the Plaintiff’s
particulars of claim does not make sense.
The
contents of the affidavit in the action between the Plaintiff
Abrahams and Schneider were put to the Plaintiff during examination
by Ms. Vivier Turck and Abrahams conceded that everything in it which
was put to him was true and correct. Therefore those parts of the
affidavit became part of Mr. Abrahams’ evidence in the instant
case. He adopted them. It is consequently surprising that the
learned trial judge in the court below never made any reference to
that very crucial evidence. In my view the learned trial judge fell
into error in this regard. He misdirected himself by failing to
consider that relevant evidence.
On
a critical analysis of the evidence of Bindeman and that of the
Plaintiff what emerges is this. Bindeman bought the Zali and Zelna
in 1992 or 1993. In due course he loaned the two trailers to
Schneider, but later retrieved the Zali. He thereafter kept the
Zali until at the end of 1998 or beginning of 1999 when he sold it to
Thompson. The Zelna remained iin the possession of Schneider from
1993 until 1997 when Schneider died.
Bindeman’s
evidence has put into question the authenticity of the reputed
suspensive sale agreement of 16th March 1994. Perhaps
that explains why Abrahams faked signing for acceptance of the
delivery of the 2 trailers on 16th March 1994 when in fact
nothing was delivered to him that date. It also seems to explain why
Abrahams, though in accordance with the printed conditions of the
suspensive sale agreement of 16th March 1994 he was
required to inspect the trailers to satisfy himself that they were
fit for the intended purpose, did not in fact inspect them.
Regarding
the Plaintiff, Abrahams’ evidence as told in the affidavit which
has received scrutiny in this judgment, after what now appears to be
a fake sale on 16th March 1994, except for a short period
between 15th July 1994 and 15th September 1994
when the Plaintiff supposedly took delivery and kept the two
trailers, the two trailers were in the possession of Schneider.
This was because Schneider was ostensibly trying to repair them or
was giving lame excuses for not delivering them back to the
Plaintiff. Late in February 1995 the Plaintiff resold them to
Schneider through a legally arranged agreement. This resale took
place at a time when the Suspensive Sale Agreement of 16th
March was subsisting.
By
clause 4.1 of the printed conditions of that Suspensive Sale
Agreement ownership of the trailers vested in the Dependant upon
execution of that agreement. Consequently, the purported resale by
the Plaintiff of the trailers in February 1995 breached that
condition, because he had no power to transfer ownership. The
Plaintiff cannot now be heard to allege that the Defendant sold the
Zali trailer to Bindeman on 29th March 1995, because by
that date both trailers had been resold by the Plaintiff to
Schneider. The Plaintiff’s claim in this matter therefore seems to
be spurious.
At
the end of the day the situation is that neither Bindeman nor the
Plaintiff succeeded in giving credence to the critical averments
occurring in the Plaintiff’s particulars of claim. To my mind,
therefore, the learned trial judge erred in giving judgment in favour
of the Plaintiff whose case remained unproved at the end of the
trial.
I
would allow this appeal.
________________________
CHOMBA, A.J.A.
I
agree
________________________
STRYDOM,
C.J.
I
agree.
________________________
O’LINN,
A.J.A.
STRYDOM
C.J.:
I
agree with my brother Chomba that the appeal in this matter should
succeed. Mr. MacWilliam, on behalf of the appellant, submitted
that this was a matter where the Court should grant the costs
consequent upon the employment of two Counsel. I agree with Counsel
that the matter was not easy and that it involved complicated issues.
This is in my opinion brought out by the fact that the respondent
also employed the services of Senior Counsel. I am therefore
satisfied that this is an appropriate instance where the Court should
allow the costs of the appeal to be taxed on the basis of the
employment of two Counsel.
In
the result the following order is made:
The
appeal succeeds with costs, such costs to include the costs
consequent upon the employment of two Counsel.
The
judgment of the Court a quo is set aside and the following
judgment is substituted therefore, namely:
“The
plaintiff’s claims are dismissed with costs.”
________________________
STRYDOM,
C.J.
I
agree.
________________________
O’LINN,
A.J.A.
I
agree,
________________________
CHOMBA,
A.J.A.
COUNSEL
ON BEHALF OF THE APPELLANT: Adv. R.W.F. Mac William, S.C.
ASSISTED
BY : Adv. S. Vivier-Turck
COUNSEL
ON BEHALF OF THE RESPONDENT: Adv. D.M. Beasley, S.C.
ASSISTED
BY : Adv. B.W. Maselle
First National Bank of Namibia Ltd v Abrahams (SA7/01 ) [2002] NASC 5 (28 March 2002);