Online Reporter
Fidelis Munyoro
Semegal Investments (Private) Limited’s bid to recover US$124 251 from Polomo Enterprises (Private) Limited has fallen flat, as the case crumbled under the weight of insufficient evidence.
The claim, which lacked the necessary proof to back its allegations, was rejected. In a judgment delivered recently, Justice Vivian Ndlovu emphasised that Semegal could not substantiate its case with credible proof.
“The celebrated rule of evidence that he who alleges must prove should always guide practitioners and parties,” Justice Ndlovu stated, citing precedence.
She stressed that the burden of proof lay squarely on the plaintiff, who failed to meet the standard required by law.
At the core of the dispute was a payment of US$84 551,52, which the plaintiff, Semegal, claimed was a loan advanced to the defendant, Polomo.
Polomo, however, maintained that the sum was payment for soya beans supplied to Semegal through Taten Trading (Private) Limited.
Polomo also alleged that a further amount of US$39 699 was advanced in cash to Semegal, but the court found no evidence to support this claim.
The court analysed the transaction and noted the absence of any written loan agreement or documentary evidence to confirm that the payment was a loan.
While Semegal asserted that the funds were meant for onward transmission to Taten Trading, the refusal to join Taten Trading as a party to the proceedings deprived the court of potentially clarifying testimony.
Justice Ndlovu remarked, “Parties are expected to argue their cases to persuade the court to see the merit, if any, in the arguments advanced for them.
They are not expected to make bald, unsubstantiated averments and leave it to the court to make of them what it can.”
Semegal’s claim of additional cash payments of US$39 699 also failed under scrutiny. The court found the oral testimony of Semegal’s witnesses, including Mr David Smith, insufficient without corresponding documentation.
Despite Mr Smith’s assertions that he collected the cash in three instalments and handed it over to Polomo’s employees on the instruction of its director, Mr Saaim Sirdar, no receipts or records were produced to corroborate these claims.
Justice Ndlovu also rejected Semegal’s alternative claim for unjust enrichment. To succeed on this doctrine, the plaintiff needed to show that the defendant had been unjustly enriched at the plaintiff’s expense.
The court found no evidence that Polomo’s receipt of US$84 551,52 was without lawful cause, noting that the defendant’s explanation that the funds were payment for soya beans remained plausible.
“The doctrine of unjust enrichment is not a catch-all remedy to cure evidentiary deficiencies; it requires a clear demonstration of unjustified benefit,” Justice Ndlovu said, referring to the principles laid out in the case of Gamanje (Pvt) Ltd v City of Bulawayo SC 94/04.
In dismissing the Semegal’s claim, the court ruled that it failed to prove each of its allegations on a balance of probabilities.
Justice Ndlovu concluded, “To hold otherwise would be to invite the court to speculate, or to impose liability in the absence of evidence, and that is impermissible.”
The court ordered that Semegal’s claim be dismissed with costs, effectively ending the dispute.
