A MUTARE-BASED businessman has lost a High Court case in which he was demanding US$75 000 from the Forestry Commission of Zimbabwe (FCZ) and a local auctioneer.
Walter Nyaungwa had dragged JEFFM Auction and the FCZ to the courts demanding US$74 807 alleging that the equipment he bought at an auction had been tampered with.
JEFFM auction was engaged as the auctioneer by the FCZ to dispose through public auction various movable property across the country.
Nyaungwa bought a hot press system for US$7 500, sanding machine (US$1 500) and a glue spreader for US$1 500 on July 24, 2021 at the auction. He told the court that he left the equipment in the custody and control of the JEFFM and he found that the it had been tampered with, vandalised or neglected.
The equipment, he said, needed repair with the hot press system needing US$59 807, sanding machine (US$7 500) and glue spreader (US$7 500) with the total cost being US$74 807.
The respondents, however, denied liability.
JEFFM Auction pleaded that the sale of the goods to Nyaungwa was a voetstoots and further averred that once the sale is concluded, all risks associated with destruction, damage or loss is passed on to the buyer.
The auctioneer further pleaded that the issue of who had custody of the goods was immaterial as risk was passed on to Nyaungwa on the conclusion of the sale. It also denied that the goods were damaged and that it made no undertakings on the quality of the goods.
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FCZ also dismissed the claim, noting that Nyaungwa delayed paying for the goods by more than a month after the sale. It also concurred with the auctioneer that the risk was passed on to Nyaungwa from the date of auction or sale in terms of the sale conditions.
The commission submitted that Nyaungwa could not collect or have access to the goods because he had not paid and on making payment access to the goods was granted.
In his judgment, High Court judge Justice Tawanda Chitapi said no evidence of the damage suffered degeneration or deterioration of the machinery was linked to the parties.
He said: “The outstanding issue after noting that the plaintiff’s claim cannot succeed is to decide the incidence of costs. The general rule that costs follow the event is subject to the rider that costs are at the discretion of the court.
“In this case the defendants have not succeeded on the merits but through a technicality and are equally to blame as much as the plaintiff for not settling pleadings and pre-trial conference issues clearly.
“In such a case the most equitable order to grant is one in which each party bears its own costs. Accordingly, the plaintiff’s claim is dismissed with each party to bear its own costs,” Justice Chitapi ruled.
