CIV/T/84/2003
IN THE HIGH COURT OF LESOTHO
HELD AT MASERU
In the matter between:-
TEBELLO MAKHAKHE PLAINTIFF
AND
MONKIMAKOTOKO DEFENDANT
JUDGMENT
Delivered by the Honourable Acting Judge Mr. G.N. Mofolo On the 17th March, 2008
The plaintiff has approached this court claiming:-
Cancellation of the agreement/contract entered into by parties in 1997;
Payment of a sum ofM130,000.00 being fair market value of a bus A5575;
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Interest at the rate of 18.5% per annum a temporae morae;
Costs of suit; and
Alternative relief.
The claim is defended.
Pwl, Tebello Makhakhe sworn has testified he is plaintiff of Maseru West and defendant is Monki Makotoko of Tsifalimali, Leribe and the court has jurisdiction to entertain matter. The plaintiff has testified his means of knowing defendant is that he sold a vehicle to defendant and prior to entering into contractual relationship with defendant he did not know defendant in that his means of knowing defendant was through one Lebohang whom he had known for a number of years. The said Lebohang had brought defendant to him saying he wished to buy plaintiffs vehicle, a minibus A5575. He says he told defendant his vehicle was worth M 130,000.00 at the time and defendant suggested as he did not have money he would give plaintiff a Nissan truck registration C210.
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Plaintiff says he gave defendant documents for the bus the truck coining to him without documents Lebohang Phohleli saying he was to shortly meet defendant. The truck had been delivered shortly after the agreement. Plaintiff has testified despite several requests for delivery of documents these had not been delivered and plaintiff suspected the vehicle to be stolen though he kept it at someone's home as his home was too small. Because papers were not delivered to him he was unable to register the vehicle. He says he did say defendant was to come to fetch his vehicle and defendant said he would bring the documents. He had returned to Lebohang Phohleli to have defendant deliver documents saying failing which he would sue defendant and no papers were received and the reason he has sued defendant for cancellation of the agreement and payment of M130.00.00 being value of the bus and other ancillary prayers. He says he has no knowledge where his bus is and he still has the truck which he has not used by reason of it being unregistered. He says he did check registration in Leribe and found it was registered in Rankhethoa Matete's name.
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Cross-examined by Mr. Teele for the defendant the witness has testified it is incorrect to say bus kept at Tvlakhotso's where the defendant collected it for the bus was fetched from his home and he disagrees the bus was without an engine and gearbox. The witness disagrees the agreement was to buy the body without engine and gearbox. He disagrees he demanded M70,000.00 for the bus. He says the agreement was in as much as the bus was registered in his name, the truck was also to be registered in plaintiffs name in Lesotho. He says he did not see the truck or its registration papers; he says he did see the truck before he delivered his bus at defendant's home where he showed it to him and he checked it. He says he was a businessman then and did not know defendant. At defendant's home he did not ask for registration papers. Asked why he did not ask for papers he says he trusted defendant as an elderly person. The witness agrees he went to Leribe, given papers and checked the vehicle against papers; he also adds he gave defendant his papers after removing the vehicle. The witness says by not roadworthy, he means the papers had expired. The witness
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has testified he does not know when the vehicle came to him. He says the certificate of registration is still on the truck. Put to him he knew details of the registration certificate he denies. Put to him the bus was sold to Russel Sebatana he says he heard this. He disagrees he signed papers and does not know in which name the bus is. He says he does not know registration number A5555 and the amount of M130,000.00 he is claiming is in respect of his vehicle being purchase price of the vehicle. He says he did say the vehicle is valued at M130,000.00 and this comes from him and assessment by an expert would come later. The expert had come and assessed the vehicle. He denies the claim is based on inaccuracies. He denies he used the truck. Put to him when delivered to him the truck was registered in the name of Liteboho Rankhethoa he says he was given no papers and C210 not the vehicle's registration numbers. He says the vehicle came bearing the numbers and he denies he was told to remove them. Put to him the vehicle not stolen he says he does not know. He says he decided to cancel the contract he does not know when but now remembers it was in 2003. Put
to him from 1997-2003
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his conduct is consistent with having had no problem he denies. He says truck in the same condition it was when he received it.
Pw2, Lebohang Phohleli sworn has testified he lives at Maseru Hill'sview and knows both the plaintiff and defendant before court. He says he has known defendant from 1990 by reason of their being businessmen. He knew plaintiff from 1979 or 1980 having been in business with his father.
Defendant had expressed the view he wished to buy plaintiff's bus and they exchanged a bus for a truck. Plaintiff had released his bus with documents but when the truck came, it was said documents would follow. He says he learned later from the plaintiff that documents had not arrived. Defendant had told him documents were with the man from whom he purchased the truck being Liteboho Rankhethoa and said he would ask Liteboho to give plaintiff the documents. Plaintiff had returned to him saying documents not delivered and he had urged defendant to release the documents. A long
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time passed and there were no documents. Plaintiff had returned to him and he was not happy and he returned to the defendant wondering why documents were still missing. Documents were never delivered to plaintiff. He saw the bus before it was taken to defendant. It was not moving when he saw it for it had been parked for a long time and he did not know what the problem was. He says the documents were not released at once having been released after the bus was painted. The bus was sold to Mr. Sebatana.
Cross-examined, the witness has testified the last time he saw the bus was in custody of the plaintiff just before 2000 when it was being penal beaten and painted by Moremoholo Penal Beaters and put in good condition by plaintiff about 1997. He says he left business in 2000 and saw the vehicle before then. He could not quite remember whether he was present when the truck was delivered to plaintiff. He says after he saw the vehicle it was taken to penal beaters and a few days after it returned. He had seen the truck at penal beaters and it was there for a long time and saw it being
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painted and the while plaintiff was waiting for papers. He says when the truck came to plaintiff, the paint was peeling for it was an old vehicle. He says he has come to court to say plaintiff was not given registration documents and he had chased this omission on behalf of the plaintiff. He says he asked for documents several times for about two (2) years. He says he could have done this up to 1999 and does not know whether plaintiff went to examine the vehicle and was then given the documents. The witness has testified plaintiff informed him defendant sought his assistance to have the bus's ownership changed in favour of Mr. Sebatana. He says when one buys a vehicle one checks it against registration papers and he would expert the plaintiff to have done this. He says he does not know if defendant gave plaintiff registration papers in the name of Liteboho Rankhethoa. He says he also agrees if plaintiff repainted the truck he would ask for costs thereof. He also agrees he has a feeling plaintiff is blaming him for having negotiated on his behalf with defendant.
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There being no re-examination, the plaintiff closes his case as the defendant also closes his case.
This is a very strange case. Plaintiff and defendant agreed verbally to exchange vehicles and vehicles were in fact exchanged sometime in 1997. About six (6) years later, the plaintiff has approached this court asking for the cancellation of the contract and payment of the sum of M130,000.00, being value of his vehicle. Plaintiff does this in circumstances in which defendant's vehicle delivered to him in 1997 remains in plaintiff's possession and custody and from the evidence of his own witness Pw2, it would appear plaintiff cooperated with defendant to have ownership of the vehicle changed into Mr. Sebatana. If he allowed and facilitated ownership being changed to Sebatana on defendant's behalf, how can plaintiff claim a vehicle defendant parted with lawfully? It has taken plaintiff nearly six (6) years and by his own evidence he allowed defendant to sell the bus to one Sebatana. It is this bus he allowed to be sold to Sebatana that he is now claiming alleging, at the time of the exchange of vehicles the bus was
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worth M130,000.00. It has taken plaintiff nearly six (6) years to cancel the contract and I may say a contract is liable to be cancelled
where, although parties have agreed or are ad idem, it appears while one party performs the other is guilty of nonperformance.
If, as plaintiff has claimed, defendant was guilty of not delivering registration papers to plaintiff, it stands to reason that defendant would be guilty of non-performance. Unfortunately, this is not the case in that in this respect plaintiff blows hot and cold. In one breath defendant has given him no registration papers at all and in another defendant has although the papers when delivered to him had expired. If so, one expects that plaintiff would have returned to the defendant to deliver fresh papers. Plaintiff has not done this but has been sending messages by Pw2 the intermediary that defendant deliver registration papers which, according to plaintiff, he was in receipt of. Not only this, according to Pw2 plaintiffs witness, plaintiff resprayed and repainted the truck from defendant. How could he do this unless he was satisfied
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with the truck's condition for if for any reason he was dissatisfied, he should have returned the vehicle or demanded that the truck be returned to defendant and defendant return his bus instead of allowing defendant to sell it and worse, allowing or permitting
change of ownership of the bus? By allowing change of ownership of the bus, plaintiff divested himself irrevocably of ownership of the bus and he cannot reclaim it. Plaintiff can't have it both ways, keeping defendant's truck and claiming a bus whose sale he sanctioned. Plaintiffs conduct is throughout consistent with having been satisfied with the truck delivered to him.
I have found plaintiff to be a liar in material respects and I have not believed him. As for Pw2, genuine as he was, he was no more than a plaything in plaintiffs theatrics and his evidence has not advanced plaintiffs case a whit.
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In the result, defendant is absolved from the instance with costs.
G.N. MOFOLO
PUISNE JUDGE
For Plaintiff : Mr. Phafane
For Defendant : Mr. Teele
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