Court name
High Court Main Division
Case name
Ehoro v Randalls Meat CC
Media neutral citation
[2020] NAHCMD 379
Case summary:

Contract – Purchase and sale – Contract providing for delivery of goods at defendants’ premises – Plaintiff suing defendants for goods sold and delivered – Plaintiff failing to prove goods were delivered at agreed place and the receiver of the goods – Court finding that plaintiff failed to prove delivery of goods – Consequently, court dismissing plaintiff’s claim – Defendants instituting counter action claiming damages for loss incurred in purchasing carcasses from alternative suppliers at a price higher than what plaintiff was charging when plaintiff failed to deliver – Court finding that defendants failed to allege in the pleadings and prove whether the transaction between them and those suppliers was  in terms of a written or oral contract and the terms of the contract – Consequently, court dismissed defendants counterclaim as unproved.

Headnote and holding:

Contract – Purchase and sale – Contract providing for delivery of goods at defendants’ premises – By agreement between the parties plaintiff was to deliver 25 cattle carcasses to defendants’ place of business for payment of agreed price – Plaintiff failed to place cogent and satisfactory evidence before the court tending to show that it delivered the carcasses to a particular authorized person at defendants’ place of business – Consequently, court finding that plaintiff failed to prove delivery of the carcasses – Accordingly, court dismissing plaintiff’s claim – Defendants instituted counter action claiming damages for loss incurred in purchasing the same amount of carcasses from alternative suppliers at a price higher than what plaintiff was charging as plaintiff had failed to deliver – Defendant failed to allege and prove the identity of those phantom alternative suppliers and the nature and terms of their transaction and whether the transaction was governed by a written or oral contract – Consequently court dismissed defendants’ counterclaim on the basis that it was not proved.

 

REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

 

Case No: HC-MD-CIV-ACT-CON-2017/02862

 

In the matter between:

 

EHORO INVESTMENT CLOSE CORPORATION                                PLAINTIFF

 

and

 

RANDALL’S MEAT CLOSE CORPORATION                          1st DEFENDANT

DAVID SHANE WINBORN                                                            2nd DEFENDANT

 

 

Neutral citation:      Ehoro Investment CC v Randall’s Meat Close Corporation (HC-MD-CIV-ACT-CON-2017/02862) [2020] NAHCMD 379 (27 August 2020)
 

 

Coram:                      PARKER AJ

Heard:                       9, 10, 11 & 12 March, 9 April 23 July 2020

Delivered:                 27 August 2020

 


ORDER


 

1.         Plaintiff’s claim is dismissed.

2.         Defendant's counterclaim is dismissed.

3.         There is no order as to costs.

4.         The matter is considered finalized and is removed from the roll.

 


JUDGEMENT


 

[1]        This is a case of beef, that is, beef supplied and not paid for, according to plaintiff, and beef not supplied and, therefore, not paid for, according to defendants; and defendants' counterclaiming against plaintiff for not supplying the beef, as agreed, leading to defendant suffering a loss, as claimed by defendants.

[2]        All the kafwafwa about the partly oral and partly written contract, about whether or not the second consignment was ‛delivered’ as opposed to ‛collected’, about the claim and defence, and about defendants' counterclaim resolves itself into this neat holistic question:  Did plaintiff supply the agreed second consignment of beef to defendant?  The question whether or not defendants have paid for the second consignment is secondary to this key issue.

[3]        The starting point is naturally the contract which governed the transaction of the parties to the contract, the subject of the dispute.  I should say, what the parties are agreed constitutes the memorial of their transaction, and it is not a model of elegant written contract.  The parties called it ‛MEMORANDUM OF UNDERSTANDING’ (‛the memorandum’).  The memorandum contains:  ‛mandate’, ‛charges’, ‛conditions of agreement’, ‛breach’, and ‛entering into buyer- meat products agreement’.  We would have thought that all these constitute the terms and conditions of the contract.

[4]        Be that as it may, in the particulars of claim, plaintiff alleges that the terms of the memorandum were varied.  But plaintiff does not say which individuals carried out the varying of the terms of the memorandum, as required by the rules of court. In terms of r 45 of the rules of court, a party –

‘(7)       … who in his or her pleading relies on a contract must state whether the contract is written or oral and when, where and by whom it was concluded and if the contract is written a true copy thereof or of the part relied on in the pleadings must be annexed to the pleading.’

 

[5]        In the instant matter, defendants deny there was any such varying of the terms of the memorandum, as alleged by plaintiff.  Plaintiff did not state in its pleadings ‛when and where and by whom’ an agreement was made to vary the memorandum.  The word ‛where’ in r 45 (7) requires a definite location and not alternative unsure locations, as pleaded in the particulars of not of claim; and ‛where’ requires a definite date or dates.  January 2017 is not a definite date.  Furthermore, plaintiff did not allege in its pleadings by whom, an agreement was made to vary the memorandum.

[6]        Based on the foregoing, I roundly reject plaintiff's allegation that the memorandum was varied.  It follows inevitably that it is the memorandum that constitutes the entire memorial governing the parties' transaction.

[7]        It is a term of the contract that plaintiff shall supply 25 beef carcasses to the premises of first defendant (ie the buyer), at Erf 6940, Unit 12 Newcastle Street, Windhoek.  The buyer shall in turn, upon receipt of the 25 carcasses, arrange the agreed payment in two weeks. The ripe question that arises for consideration is this.  Is there cogent and satisfactory evidence establishing that plaintiff supplied 25 carcasses to first defendant at Erf 6940, Unit 12 Newcastle Street, Windhoek, in terms of the memorandum?  Thus, the next level of the enquiry should dwell on finding and considering evidence on this issue.

[8]        In his examination-in-chief-evidence, Mr Ndaheya Kahuure (a plaintiff witness), who described himself as the sole member of plaintiff, testified that he gathered 25 head of cattle and took them to Aandrus Abattoir (‘the abattoir’), Plot No. 75, Gobabis District, and were slaughtered there.  He testified further that he signed the Meat Export and Meat Transport Permit and delivered the invoice to a ‘Mr Anton van Wyk’, the driver of first defendant. The name ‛Anton van Wyk’ appears on the permit.  Kahuure does not say that he also gave the 25 carcasses to Mr Anton van Wyk.  The Permit indicates the date of hearing as ‛24 and 28 March 2017’. Mr Van Wyk denied strenuously that he collected meat on behalf of first defendant on 23, 24 or 28 March 2017 or any other day.  To emphasize his denial, he drew the court's attention to the fact that the spelling of his first name on the Permit is not correct.  The name indicated there is ‛Anton’; but his first name is ‛Antwan’.

 

[9]        According to Ndaheya, Van Wyk collected the beef from the abattoir in Gobabis for and on behalf of first defendant on 24 and 28 March 2017.  And Raungura Kahuure, also a plaintiff witness, and who also described himself as the sole member of plaintiff, testified as follows.  David Winborn (second defendant) informed him on the phone that the beef would be collected by first defendant on 24 March 2017.  On that date the driver of first defendant whom he knew as Anton collected 13 carcasses and the remainder (i.e 12 cattle carcasses) on 27 March 2017.

[10]      It is important to note that Ndaheya does not tell the court why Anton did the collection on 24 and 28 March as shown in the permit.  Furthermore, as mentioned previously, Ndaheya described himself as the sole member of plaintiff; so did Raungura.  Ndaheya settled his witness statement on 28 February 2020, and Raungura settled his witness statement some four days later, on 4 March 2020; and so, it would seem each one of them was the sole member of plaintiff at the material time.

[11]      A more telling testimony from Ndaheya and Raungura is this.  Ndaheya said that without any prior arrangement with second defendant, ‛Anton’ van Wyk just arrived suddenly to collect the 25 cattle carcasses at the abattoir; and on 24 March and 28 March 2017.  But Raungura's testimony is that pursuant to a prior arrangement with second defendant, driver Anton went to collect 13 cattle carcasses on 24 March 2017 and 12 cattle carcasses on 27 March 2017, making a total of 25. Raungura testified that on both occasions, the meat was delivered at the offices of John and Penny by him, Raungura, and driver ‛Anton’.

[12]      What all this means is that on 24 March 2017 Ndaheya and Raungura did not meet, but both of them at different times saw ‛Anton’ collect cattle carcasses from the abattoir in their presence.  That does not make sense. It does not accord with common sense and common human experience.

[13]      I have set out the testimonies of Ndaheya and Raungura in the previous paragraphs to the come to the conclusion that what they testified cannot possibly be true; and I reject them.  They either lied or they were mistaken as to the collection of the 25 cattle carcasses by someone they thought was Anton, first defendant's driver.  But he is not Anton, as I have demonstrated previously.  In any case, both on Ndaheya’s evidence and Raungura’s evidence, it is crystal clear and indisputable that plaintiff did not supply the consignment of ‛25 beef carcasses’ to first defendant's premises at Erf 6940, Unit 12 Newcastle Street, Windhoek, as demanded in material terms by clause 1 of the memorandum.

[14]      Based on all these reasons, I hold that there is no evidence upon which the court ought to find tor plaintiff that plaintiff complied with paragraph 1 of the memorandum, requiring defendants to make payment.  Consequently in my judgment plaintiff's claim must fail; and it fails.  I now proceed to consider defendants' counterclaim.

[15]      There are Claims 1 and 2 under the counterclaim.  As respect's Claim 1, defendants allege as follows:

(1)       As a result of the Plaintiff's failure to comply with the terms of the agreement, First Defendant was compelled to approach alternative suppliers for the supply and delivery of meat to its clients.

(2)       As a direct result of the Plaintiff's failure to comply with the terms of the agreement, First Defendant could only secure a new supplier who charged the First Defendant an amount of N$37 per kilogram.

(3)       First Defendant suffered damages in the amount of N$1 330 000 calculated as follows:

Difference between initial contract price and alternative supplier is N$7.00 per kg.

Average weight of medium to fat grade beef carcass is 200 kilogram.

Therefore N$7.00 per kg x 25 x 200kg x 38 weeks =N$1 330 000.

(4)       As a result of the Plaintiff failing to honour the agreement between the parties, the Defendant suffered damages in the amount of N$1 330 000.

 

[16]      And as to Claim 2, defendants allege as follows:

(1)       As a result of the Plaintiff's failure to comply with the terms of the agreement, First Defendant was compelled to approach alternative suppliers for the supply and delivery of meat to its clients.

(2)       As a direct result of the Plaintiff's failure to comply with the terms of the agreement, Defendant could only secure a new supplier who currently charges the Defendant an average amount of N$37.00 per kilogram.

(3)       Defendant will therefore suffer damages in respect of reasonable future loss directly caused by the Plaintiff in the amount of N$4 095 000.00 calculated as follows:

Difference between initial contract price and alternative supplier is N$7.00 per kg.

Average weight of medium to fat grade beef carcass is 200 kilogram.

Therefore N$7.00 per kg x 25 x 200kg x117weeks =N$4 095 000.

(4)       As a result of the Plaintiff failing to honour the agreement between the parties, the Defendant will suffer damages in the amount of N$4 095 000.

 

[17]      Defendants allege under Claim 1 that they secured alternative suppliers.  The identity of the alternative suppliers is not pleaded; and yet defendants wish to rely on the existence of a transaction in respect of Claim 1.  There is not one single item in the pleadings tending to establish the transaction between defendants and these phantom suppliers.  If their transaction was evidenced by a written document, this was not pleaded and such document was not placed before the court; and if, on the other hand, their transaction was governed by an oral agreement, such was not pleaded and proved.  On these grounds alone Claim 1 ought to be rejected; and it is rejected.  It is rejected on also the ground that the court has only the bare and naked averments in the counterclaim, as aforesaid. What defendants aver is not established; it becomes a mere irrelevance. (See Klein v Caramed Pharmaceuticals (Pty) Ltd 2015 (4) NR 1016 (HC), para 13.) The averments turn on nothing which the court could consider.  Claim 2 stands in the same boat as Claim 1; and so Claim 2, too is rejected.

 

[18]      Based on these reasons, I order as follows:

1.         Plaintiff’s claim is dismissed.

2.         Defendant's counterclaim is dismissed.

3.         There is no order as to costs.

4.         The matter is considered finalized and is removed from the roll.

 

________________

C PARKER

Acting Judge

 

 

APPEARANCES:

 

PLAINTIFF:                          T Mbaeva

Of Mbaeva & Associates,

Windhoek

 

FIRST DEFENDANT:           M Schurzs

                                             Of Delport Legal Practitioners,

Windhoek