The
plaintiff issued summons claiming against the defendant payment of a
sum of US$28,350= together with interest thereon at the prescribed
rate from the date of summons to the date of full payment, and costs
of suit.
The
money, according to the plaintiff's declaration, was paid to the
defendant pursuant to an agreement concluded in September 2009 in
terms of which the parties would purchase fuel for resale and share
profits realised from the business. The plaintiff's case, as
pleaded, was that the defendant paid him a total of US$41,714=43 as
his share of the profits but subsequently failed to pay the profit
shares. As a result of the failure by the defendant to pay him his
share of profits, the plaintiff cancelled the agreement and demanded
back the money he had invested in the business.
The
defendant, in its plea, denied that it entered into the alleged
agreement with the plaintiff. It contended that the agreement was
between the plaintiff and one Patrick Vudzi who was a Director of the
defendant. The defendant therefore took the point that it was
improperly joined in the proceedings.
The
defendant further averred that Patrick Vudzi had repaid the loan of
US$28,350= advanced to him by the plaintiff together with the
plaintiff's share of profits.
Three
issues were referred to trial, namely:
1.
Whether or not there is a misjoinder of the defendant;
2.
Whether or not the plaintiff and the defendant entered into any
agreement and the terms thereof; and
3.
Whether or not the plaintiff is entitled to refund of its capital sum
advanced to the defendant.
The
plaintiff gave evidence himself. His evidence was as follows:
He
is resident in the Republic of South Africa. He got to know the
defendant through its Director, Patrick Vudzi, who was a friend of
his young brother. He entered into an agreement with the defendant,
represented by Patrick Vudzi, in terms of which he was to invest
money for the purchase of fuel products for resale in Zimbabwe.
Pursuant to that agreement, he invested a capital sum of US$28,350=.
The money was paid directly to a supplier of fuel based on a proforma
invoice which was in the name of the defendant.
According
to him, Patrick Vudzi was the defendant's “director or sole
proprietor.”
His
evidence was that the parties would share the profits. The sharing
ratios depended on whether the fuel had been sold to an 'end user'
or to a dealer. If the fuel was sold to an end user, by which was
meant a person who purchased the fuel for his own use as opposed to
for resale, the plaintiff would get 37% while the defendant received
63% of the net proceeds. If the product was sold to a dealer, the
plaintiff would receive 40% while the defendant received 60%. The
plaintiff was entitled to receive back the capital amount which he
had invested in the business upon the termination of the agreement.
In accordance with the contract, he did receive certain sums of money
which totalled US$41,785= as his share of profit. He terminated the
agreement in June 2011 when the defendant was having difficulties
meeting its obligations to him.
The
plaintiff's testimony is contradicted by some of the documents
which he produced. He insisted that there were no interest payments
made to him yet he or his representatives acknowledged payments
expressed in writing as for interest.
Patrick
Kombayi Vudzi gave evidence that he is the Chief Executive Officer of
the defendant company. He and one Sithokozile Sibanda were the
Directors of the defendant. He denied that the defendant contracted
with the plaintiff on the terms alleged. His testimony was that he
personally entered into the agreement with the plaintiff in terms of
which the plaintiff provided a sum of US$28,350= for the purchase of
fuel for resale in Zimbabwe. The money was the plaintiff's
contribution to the business. He, Patrick Vudzi, would be responsible
for selling the fuel. Profit was shared between the plaintiff and him
personally.
The
defendant's name was only used for convenience.
Some
of the fuel was sold to the defendant or sold to third parties
through the defendant. The witness stated that, initially, the
plaintiff was entitled to a share of profit from the joint business.
Later on, the US$28,350= paid by the plaintiff became a loan to him
which he was obliged to pay back together with interest. He stated
that he repaid the capital amount together with the interest due to
the plaintiff….,.
The
second issue which was referred to trial is inelegantly formulated.
It
is not in dispute that the parties entered into an agreement in terms
of which the plaintiff invested an amount of US$28,350=. It is not in
dispute that that agreement involved the purchase of paraffin and
other fuel for resale. The parties shared profits pursuant to that
agreement. There is a dispute as regards whether the agreement
mutated into a loan agreement in terms of which the defendant was
required to pay interest on the invested money to the plaintiff. Some
documents produced by the defendant record some of the payments made
to the plaintiff as 'interest'. But, there is no need for the
court to inquire into the dispute regarding whether the agreement
later became a loan agreement given the fact that Patrick Vudzi, the
defendant's only witness, admitted that the capital amount was to
be paid back to the plaintiff upon termination of the agreement.
Indeed, some of the payments made by the defendant to the plaintiff
are recorded as for capital.
The
issue to be considered, therefore, is whether the capital sum of
US$28,350= has been paid in full as per the agreement between the
parties.
The
defendant's witness stated that he repaid the amount in full. The
plaintiff disputes that and claims that no payment was made at all
for the capital.
The
documents produced in evidence show four categories of payment,
namely, profits, interest, capital as well as those that are not
classified. The oral evidence of the witnesses was not very helpful
as no attention was paid to the details contained in the documents,
and, in some instances, the witnesses gave evidence which
contradicted the facts averred in their pleadings. The payments that
are not classified show different amounts and reveal no consistent
pattern. I will therefore treat them as payments towards the capital
sum unless there are circumstances suggesting that they were for
interest or profit share.
It
should therefore be possible for the court to assess the total amount
paid in respect of the capital by reference to those documents. I do
not accept the plaintiff's assertion that no payment was made at
all for the capital. Those who received the payments on his behalf
accepted the payments as being made towards the capital sum by
appending their signatures to acknowledge receipt.
In
its schedule at page 33 of Exhibit 2, the defendant listed the
following payments as the ones appropriated towards the capital:
DATE
AMOUNT
(US$)
24
September 2009 2,084=
10
November 2009 2,089=
8
February 2010 1, 560=
23
February 2010 110=
3
March 2010 3,000=
4
March 2010 1,000=
12
May 2010 500=
7
June 2010 2,530=
15
June 2010 600=
23
June 2010 500=
5
July 2010 1,500=
8
July 2010 1,000=
8
August 2010 3,000=
24
September 2010 1,000=
25
October 2010 1,350=
30
November 2010 1,000=
24
December 2010 800=
4
May 2011 600=
7
June 2011 5,000=
______
TOTAL 29,223=
The
above figures would give the impression that the defendant actually
paid to the plaintiff more than what was due in respect of the
capital.
I
do not accept that to be the correct position.
A
sum of $2,084= is stated by the defendant as a capital repayment made
on 24 September 2009 based on a requisition form no.4023 at page 15
of exhibit 2. But an e-mail from the defendant, at page 6 of exhibit
1, shows that that amount represented the plaintiff's share of
profit as calculated in that email. An amount of US$2,089= is listed
as having been paid in respect of the capital on 10 November 2009.
What is attached as proof of payment is in fact a requisition form
no.4576 at page 13 of exhibit 2. The document at page 12 of exhibit 1
shows that that payment was for the plaintiff's share of profits. A
document relied upon by the defendant to prove a payment of $1,000=
on 24 September 2010 is a requisition form no.677 which appears at
page 18 of exhibit 2. That form is not signed on behalf of the
plaintiff to acknowledge receipt. Instead, there is an acknowledgment
of receipt of that sum of $1,000= at page 20 of exhibit 2 which is
signed on behalf of the plaintiff by one T. Sithole. The cash
received voucher is dated Friday, 24 September 2010 and is clearly
stated as for “Amen (Interest).” It is clear to me that that is
the same amount which the plaintiff had apportioned to capital based
on a requisition form. The same observation applies to a sum of
$1,000= contained in a requisition form no.506 at page 17 of exhibit
2. The cash received voucher for that amount is at page 22 of the
same exhibit 2 which shows that it is in respect of interest. A
payment of $800=, contained in a cash payment voucher no.303, dated
24 December 2010, is not signed for. There is no name written where
it states: 'Collected by:' There is therefore no proof that it
was paid to the plaintiff or received by him or by some other person
on his behalf.
Thus,
a sum of $6,973= must be deducted from the sum of $29,223=. A balance
of $22,250= remains, which amount I am prepared to accept as having
been paid in respect of the capital.
Subtracting
the sum of $22,250= from the total capital figure of $28,350= leaves
a balance of $6,100= outstanding. That, to me, is the only amount
which the plaintiff is entitled to recover from the defendant in
respect of the capital.
In
the result, judgment is given in favour of the plaintiff against the
defendant for:
1.
Payment of a sum of US$6,100=;
2.
Interest on the sum of US$6,100= at the prescribed rate from the date
of service of the summons, 18 May 2012, to the date of full payment;
and
3.
Costs of suit.
