Court name
High Court
Case number
1402 of 2007
Title

Coastal Cellular CC v Paavo Amwele t-a Huhu City (1402 of 2007) [2012] NAHC 104 (12 April 2012);

Media neutral citation
[2012] NAHC 104
Coram
Hoff J












NOT
REPORTABLE


CASE
NO: I 1402/2007





IN
THE HIGH COURT OF NAMIBIA








MAIN
DIVISION








HELD
AT WINDHOEK








In
the matter between:








COASTAL
CELLULAR CC
….....................................................................................PLAINTIFF








and








PAAVO
AMWELE T/A HUHU CITY
…....................................................................DEFENDANT














CORAM:
HOFF, J











Heard
on:
13 – 14 April 2010








Delivered
on:
21 May 2010










Reasons
on:
12 April 2012














JUDGMENT













HOFF,
J
: [1] In an action instituted by the plaintiff an
amount of N$31 051.00 plus interest was claimed from the defendant in
respect of goods sold and delivered.



The
defendant in a counterclaim claimed an amount of N$2 599.50 for
unjustified enrichment on the basis of an overpayment made by the
defendant to the plaintiff.







[2]
This Court on 21 May 2010 made the following order:






1. That the defendant pays the plaintiff the amount of
N$31 051.00 plus interest at the rate of 20% per annum as from 11
April 2005 to date of final payment.



2. That the defendant pays costs of suit.



3. That the Counterclaim of the defendant is dismissed
with costs.







[3]
The following are the reasons for abovementioned order.







[4]
During the trial the plaintiff called two witnesses. The first
witness Johannes Willemse worked as a salesperson for the plaintiff.
Willemse testified that he had concluded an agreement with the
defendant during the year 2004 in terms of which plaintiff would sell
their telecards and recharge vouchers to the defendant. On two
occasions during June 2004 and August 2004 the said goods were
delivered and payments were subsequently received.







[5]
The dispute relates to a third occasion during August 2004 when
according to Willemse he had met the defendant at a place referred to
as the “whole sale” in Ondangwa where it was agreed upon
that the defendant would buy a number of recharge vouchers. It was
the evidence of Willemse that the defendant was on his way to a
certain destination (Oshikango) and that the defendant had instructed
Willemse to deliver the recharge vouchers at one of the defendant’s
business premises “Huhu City” where employees of the
defendant would take delivery of the vouchers. Willemse testified
that he duly delivered the vouchers and that one of the employees of
the defendant, after counting these vouchers, signed on a tax invoice
for the receipt of those vouchers. Willemse referred to a document
(tax invoice) attached to plaintiff’s particulars of claim in
respect of which he confirmed that this tax invoices was the document
reflecting the quantity of cards sold for the amount of N$33 600.00.
The date which appears on this document is 17 August 2004.
Furthermore he confirmed that his signature appears on this tax
invoices and that one of the employees of the defendant signed for
the receipt of the vouchers. The name of the employee which appears
on this invoice is Sophia Namupala. His evidence during
cross-examination was that the person who signed as Sophia Namupala
was behind the counter when she so signed the invoice. Payment not
forthcoming from the defendant, Willemse subsequently personally
requested payment from the defendant. There was an altercation in the
office of the defendant which resulted in Wilelmse leaving the office
of the defendant, and defendant according to Willemse, promising that
payment would be made in due course. Willemse testified that on this
occasion he had recognised the lady who had previously signed for the
vouchers.







[6]
David Gibbons the managing member of the plaintiff testified that
after the conclusion of the third sale of vouchers to the defendant
he phoned the defendant in connection with the arrear payment on
which occasion the defendant had informed the Gibbons that one Sophia
Namupala did not work for defendant anymore since she had stolen from
the defendant. The defendant during cross-examination did not deny
someone on behalf of plaintiff phoned him in connection with the
outstanding monies but stated that he was unable to recall the name
of the person who had phoned him.







[7]
After the closure of plaintiff’s case an application for
absolution of the instance was made on behalf of the defendant. This
application was unsuccessful.







[8]
The defendant thereafter testified that he is the owner of several
businesses and that Willemse approached him on 19 June 2004 on which
date the first transaction was concluded. Thereafter on 6 August 2004
he received another consignment by mail and subsequently made certain
payments to the plaintiff. Defendant denied meeting Wilemse at the
“wholesale”, denied that he received any vouchers from
anyone of his employees, denied that a person by the name of Sophia
Namupala was ever employed by him, that he had only seen the tax
invoice dated 17 August 2004 for the first time when he received the
summons, denied that he had ever met Willemse for a second time in
his (i.e defendant’s office) where there was an altercation
between himself and Willemse, and denied that he ever said to Gibbons
that Sophia Namupala was not working there anymore.







[9]
The issue in dispute is whether the defendant had received the
relevant vouchers on a third occasion.







[10]
Ms Schneider-Waterberg submitted that the defendant, on plaintiff’s
version, made a representation to Willemse that he may deliver the
vouchers to one of defendant’s employees and that defendant
should be estopped from denying taking delivery of the relevant
vouchers since the plaintiff acted to its prejudice on the
representation made by the defendant himself.







[11]
Mr Namandje on behalf of the defendant submitted that plaintiff must
prove that an agreement was entered into between the parties relating
to the third consignment and in addition to this the plaintiff must
prove delivery of the vouchers to the defendant by the plaintiff. He
submitted in this regard that Willemse could not remember how many
boxes of vouchers he delivered, could not recall the value of the
vouchers (after six years), could not recall the month of the
transaction, and that the tax invoice referred to by Willemse could
not be of any use to this Court when the whole transaction of
delivery is denied by the defendant.







[12]
In order to decide the issue in dispute one has to consider the
probabilities. Even though Willemse testified that he could not
recall all the detail after a period of six years he identified the
tax invoice dated 17.08.2004 as the one which he had completed in his
handwriting, that defendant’s name appear on it, that his
signature appears on it as well as the number of cards sold and the
price of those cards, and that an employee of the defendant Sophia
Namupala’s signature appear on it. There is no reason why
Willemse’s testimony in this regard should be ignored.



Willemse
testified about an incident in the office of the defendant when
Willemse requested payment in respect of the relevant vouchers when
the defendant lost his temper and that defendant afterwards promised
to make the payment. Thereafter Gibbons was informed of the incident
and he in turn requested payment from the defendant in respect of the
arrears. Defendant does not deny this conversation in respect of the
request for payment of the arrears. It is not the defendant’s
case that Willemse forged the relevant tax invoice. I am of the view
in the light of the bare denial by the defendant that the
probabilities favour the version of Willemse. I am satisfied that
plaintiff has proved the agreement of sale of the relevant vouchers
and their delivery to one of the employees of the defendant. The
defendant is therefor indebted to the plaintiff in respect of the
amount claimed for. This in turn also disposes of the counterclaim by
the defendant.







[13]
The plaintiff is the successful party and therefore entitled to costs
of suit.























________



HOFF
J



















ON
BEHALF OF THE PLAINTIFF: MS SCHNEIDER-WATERBERG







Instructed
by: FISHER, QUARMBY & PFEIFER















ON
BEHALF OF THE DEFENDANT: MR NAMANDJE







Instructed
by: SISA NAMANDJE & CO. INC.