Three dealers ordered to refund customer US$10 400

Source: The Herald – Breaking news.

Three dealers ordered to refund customer US$10 400

Fidelis Munyoro

Chief Court Reporter

THREE car dealers from Harare have been ordered to refund a Chinese national US$10 400 he was forced to pay in customs duty for a Toyota Fortuner that was fraudulently imported into the country.

The Toyota Fortuner sold to Mr Feng Li was seized by the Zimbabwe Revenue Authority in December 2019 after it turned out that it had been fraudulently brought into the country.

The trio of Tawanda Mutare, Zvikomborero Gomera and Kudzai Leo Marowa sold Mr Feng the tainted vehicle, after misrepresenting to him that it was clean.

Mr Feng found himself in trouble when he approached Southerton Police in December 2019 to have the vehicle cleared for his trip to Mozambique.

 The police impounded the vehicle on the grounds that customs duty had not been paid, and handed the vehicle to Zimra. 

But before he bought the car, Mr Feng enquired if the vehicle’s papers were “clean” and the trio assured him that everything was above board.

After the surprise seizure, he approached the trio to have the car they sold him properly cleared, but they refused to pay the sums demanded by Zimra.

The vehicle was only released after Mr Li paid the duty, penalties and storage charges all to the tune of US$10 403. 

In a bid to recover his money, Mr Feng sued Mutare, Gomera and Marowa at the High Court.

The three operate their business at Enterprise Car Sales at the corner of Emmerson Dambudzo Mnangagwa Road and John Landa Nkomo Avenue in Harare.

 On a balance of probabilities, the standard of proof in a civil hearing, Justice Gladys Mhuri found merit in the claim and ruled in Mr Feng’s favour and ordered the trio to pay him the US$10 402,42 that he had to shell out to get his car back.

“Alternatively, failing to comply with the above, payment or refund of the full purchase price for the vehicle US$22 000 paid to the first and third defendants.” 

 It was the court’s findings that Mutare was an employee of Gomera and acted on behalf of the latter in the whole transaction.

 Both declared themselves to Mr Feng as the sellers and never mentioned that there was a third party involved as the principal in this transaction. However, they later claimed in court that they sold the vehicle as agents for one Ngonidzashe Taguta, their principal.

Mutare and Gomera assured Mr Feng verbally and in writing in the agreement of sale that the vehicle was “clean”. 

The judge said this meant that everything was above board , which position was not true. 

 Marowa was found to be the root cause of the problems for importing the vehicle fraudulently, hence there was no proof of customs clearance certificate that he had paid the duty.

 Justice Mhuri criticised Marowa for giving the impression that if it was Taguta who had sued him, that would have made sense, and not Mr Feng  whom he did not deal with.

 “In the result, the plaintiff’s claim against first, third and fourth defendants jointly and severally, the one paying others to be absolved is granted,” she said, ordering payment of US$10 402.42 to Mr Feng.

 “Alternatively, failing to comply with the above, payment or refund of the full purchase price for the vehicle US$22 000 paid to the first and third defendants.” 

 The judge heavily criticised the three when they decided to fight relentlessly to the end in a matter which could have been settled out of court.

For putting such an unwarranted fight and putting Mr Feng out of pocket prosecuting the case to finality over and above the expenses he incurred, Justice Mhuri hit the trio with costs on an attorney and client scale. 

In their defence, the trio claimed that they sold the vehicle as agents for Taguta. As agents, they argued, they were not liable for the transaction they did on behalf of their principal.

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