MOITA v. DUGMORE 1984 BLR 105 (CA)

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Citation: 1984 BLR 105 (CA)
Court: Court of Appeal, Lobatse
Case No:
Judge: Maisels P, Van Winsen JA, and Isaacs Ag J
Judgment Date: May 25, 1984
Counsel:
P. C. G. Collins for the appellant. J. M. Nganunu for the respondent
Flynote

Evidence - Affidavit evidence - Dispute of fact - No viva voce evidence given at trial - Resolution of disputed fact based on contradictory affidavit evidence - Desirability of adducing viva voce evidence in arriving at correct decision on disputed  F fact.

Headnote

The respondent took his vehicle to the appellant for certain repairs to be effected to it. On completion of the repairs, the vehicle was returned to the respondent. The appellant repossessed the vehicle allegedly with the consent of the respondent until the balance for the cost of repairs had been paid. The respondent sued the  G  appellant for the return of the vehicle on the grounds that he had fully paid for the cost of the repairs. In support of his case, the respondent swore to an affidavit stating when the balance due on the repairs was fully paid. The appellant denied the respondent's assertions. He also swore to an affidavit setting out his case. No viva voce  H  evidence was given at the trial. The trial judge held, on the balance of probabilities, that he believed the respondent and gave judgment for him. The appellant appealed to the Court of Appeal.

Held, allowing the appeal: it was undesirable to attempt to settle disputes of fact solely on probabilities disclosed in contradictory affidavits, in disregard of the additional advantage of viva voce evidence. There could be little doubt that neither of the issues in dispute, i.e. whether the balance of the money owing for repairs had been paid and whether the appellant was


 

1984 BLR p106

holding possession of the respondent's vehicle with the latter's consent, could in fairness to the parties be  A  decided without the court hearing viva voce evidence. Dictum of Murray A. J. P. in Room Hire Co. (Pty.) Ltd. v. Jeppe Street Mansions (Pty.) Ltd. 1949 (3) S.A. 1155 at p. 1162 applied. Mahomed v. Malk 1930 T.P.D. 615 at p. 618 cited.

Cases referred to:

     (1)     Room Hire Co. (Pty.) Ltd. v. Jeppe Street Mansions (Pty.) Ltd. 1949 (3) S.A. 1155.  B

     (2)     Mahomed v. Malk 1930 T.P.D. 615.

Case Information

APPEAL against a decision of a judge of the High Court wherein the judge settled disputes of fact solely on contradictory affidavit evidence without viva voce evidence.  C

P. C. G. Collins for the appellant.

J. M. Nganunu for the respondent.

Judgment

Van Winsen J.A. This appeal concerns the correctness of a judgment of O'Brien Quinn C.J. in the High Court in which he ordered that the appellant release immediately to the respondent a motor vehicle BH 666, the property  D  of the respondent. Costs were ordered to be paid by the appellant.

It appears that the respondent had handed the vehicle in question to the appellant for repairs in December 1982. The repairs having been completed the vehicle was returned to the respondent towards the end of January 1983. The cost of the repairs to the vehicle amounted to P736,72. The respondent paid the appellant P200 of this amount at the end of January.  E

Up to this point there is no dispute between the parties. What followed is in dispute, which dispute eventually led to application proceedings resulting in the order presently being appealed against. These proceedings were initiated by the respondent who set out in an affidavit in support of an application instituted by him against the  F  appellant for the return of the vehicle that he had paid the appellant the balance of the amount owing for the repairs to his vehicle. In support of this allegation he annexed an invoice, Annexure C, which appears to indicate that the balance of P536,72 had been paid on 2 February 1983. The respondent further alleges that on 25 February 1983 he received another invoice from the appellant claiming an amount of P536,72. He informed the appellant that he had paid this amount but the latter did not accept that he had done so. According to the  G  respondent by means of a ruse - the details of which are not relevant at the present time - the appellant obtained possession of his vehicle and claimed to hold it pending the payment of the balance of the account for repairs which the appellant claimed was still owing to him. The respondent further states that in his endeavour to recover his vehicle he took action in the magistrate's court. The court was informed from the bar that this action  H  has been withdrawn.

The appellant opposed the application for an order compelling him to return the vehicle. In his affidavit in support of his opposition to the application he denied that the respondent had called at his premises on 2 February and paid off the balance of P536,72. He admitted that the invoice, Annexure C, had been issued to the respondent but stated that


 

1984 BLR p107

VAN WINSEN JA

the words "paid balance 2/2/83 inscribed on the invoice "do not mean what they at first sight appear to mean".  A

The appellant averred that so far from the respondent having repeatedly informed him that he did not owe the sum in question, he had repeatedly apologised for not paying it.

He did not deny possession of the vehicle but stated that the respondent had agreed to leave the vehicle with him as security for the debt. He stated his willingness to return the vehicle to the respondent as soon as the sum  B  he alleged that the respondent owed him was paid.

The appellant's wife stated in a supporting affidavit that the respondent had not paid her the balance of the money owing on 2 February as alleged by him.

The affidavits by, and on behalf of, the parties thus disclose diametrically opposed versions of the events relevant to a decision of the dispute between them. Despite this and on the strength of the respective affidavits  C  the court a quo decided that on a balance of probabilities the respondent is to be believed rather than the appellant and accordingly granted with costs an order compelling the appellant to restore the vehicle to the respondent.

The notice of appeal against the judgment in the court a quo states as one of the grounds of appeal that it was impossible for that court to have come to a finding on a balance of probabilities, including one as to credibility,  D  solely on the basis of the evidence contained in the affidavits without reference to viva voce evidence.

There can be little doubt that neither of the issues in dispute, i.e. whether the balance of the money owing for repairs has been paid and whether the appellant was holding possession of the respondent's vehicle with the  E  latter's consent, can in fairness to the parties be decided without the court hearing viva voce evidence. It is trite law that it:

     "is undesirable to attempt to settle disputes of fact solely on probabilities disclosed in contradictory affidavits, in disregard  F  of the additional advantages of viva voce evidence . . . "

See Room Hire Co. (Pty.) Ltd. v. Jeppe Street Mansions (Pty.) Ltd. 1949 (3) S.A. 1155 at p. 1162, and Mahomed v. Malk 1930 T.P.D. 615 at p. 618. The principle is enshrined in many other judicial pronouncements, cf. The Rules of the High Court (Cap. 04:02) (Sub. Leg.) (1973 Rev.), Order 7, rule 7.

The circumstances of the present case par excellence call for the production of viva voce evidence in order to  G  arrive at a correct decision on the disputed issues.

In the normal course success on appeal would carry an order for costs in favour of the successful party. Since upon a consideration of the viva voce evidence it might appear that this application should never have been  H  brought or, on the other hand, that it should never have been opposed it would appear to be fairer to the parties to allow the costs so far incurred to follow the course of the ultimate result.

The appeal is allowed and the order made in the court a quo is set aside. The matter is referred back to the court a quo to hear such viva voce evidence as the parties wish to submit on the issues in dispute. The costs so far incurred of the application to the court a quo and the costs of this appeal are ordered to be costs in the cause. If the respondent


 

1984 BLR p108

VAN WINSEN J.A.

fails to apply to have the matter set down within 14 days of the date of this order leave is reserved to the  A  appellant to do so.

MAISELS P. I agree.

ISAACS AG. J. I agree.  B

Appeal allowed.
Case committed to trial court
to hear viva voce evidence.

E. K. T.  C


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