Agency Law re: Acting For Another iro Agency Relationship, Independent Contractor & Quasi-Mutual Assent Doctrine

The plaintiff is a medical doctor, a gynaecologist, and a professor at the University of Zimbabwe. He boasts that he is a founder member and majority shareholder of the defendant, a maternity institution he is suing for $50,000, being money he says he paid to a creditor of the defendant on its behalf.

In his declaration, the plaintiff averred that sometime in September 2005, while he was the Managing Director of the defendant, he entered into an agreement with Vengesayi Architects (the architects), on behalf of the defendant, in terms of which the architects were to provide the defendant with services for a fee. The architects were contracted to make town planning applications for special consent on the Stand, co-ordinate all project consultations, design, work on drawings and supervise construction work of the proposed additions and alterations to the hospital.

Although the architects drew up the plans, the defendant did not proceed with the construction, but, the agreement he had concluded with the architects resulted in the defendant being indebted to the architects in the sum of US$1,300,000.

As Managing Director, founder, and majority shareholder of the defendant he paid a sum of $50,000 towards settlement of the debt in order to protect the integrity and good name of the defendant.

The $50,000 was paid by him in instalments between 30 May 2011 and 18 July 2011. The plaintiff averred, in paragraph 8 of the declaration, that:

“The money paid to the architects by the plaintiff thus made the latter the defendant's creditor. There is no dispute as to whether the plaintiff made the payment aforesaid.”

The plaintiff then prayed for judgement in the sum of $50,000 together with interest at the prescribed rate and costs of suit on a legal practitioner and client scale.

Having entered appearance to defend, the defendant filed a plea denying liability and stating that the plaintiff was not authorised by its Board of Directors and shareholders to enter into an agreement with the architects and that he had entered into that agreement unlawfully.

It further averred that when the plaintiff paid the sum of $50,000 to the architects, he did so without the authority of the defendant. As he had entered into the agreement without authority, the plaintiff was personally liable to the architects. The plaintiff's claim should therefore be dismissed with punitive costs.

At the pre-trial conference the parties agreed on the issues as:

1. Whether the plaintiff entered into an architectural agreement with the architects without the authority of the defendant's Board of Directors and shareholders.

2. Whether the defendant is liable to the plaintiff in the sum of $50,000 paid to the architects.

Only the plaintiff gave evidence at the trial of this matter, stating that he had been the Managing Director of the defendant since 1998 and he still holds that position.

On 29 January 2010, the defendant's Board had proposed, and agreed, that they should negotiate terms of payment of the architects' fees for work done. The architects had performed work for the defendant and submitted a claim for the payment of their fees.

Prior to that, the architects had drawn plans for the development of the hospital which was called the second phase.

A contract had been signed in 2005 between the hospital and the architects with the former being represented by himself. He made reference to pages 66 to 69 of exhibit 1, being the agreement in question, stating that it was signed by himself in his capacity then as Executive Chairman and countersigned by the defendant's Administrator.

The plaintiff maintained that he had the authority of the Board which he worked with then, to enter into the agreement, and, as such, the agreement was binding on the defendant which however did not pay the fees of the architects even though a demand for payment was initially made in 2006, re-submitted in 2009, and, finally, in 2010.

Prior to making payment on behalf of the defendant, he had been specifically mandated, by the Board, to negotiate with potential investors for the funding of the project. He had brought in Banc ABC which was willing to invest $7.5 million and Mbizvo Group which was willing to invest $15 million into the project. Content with the funding arrangement, the plaintiff said he had incorporated the architects' fees in the funding. He then paid $50,000 to the architects satisfied that he could recoup his money in due course.

The payment was made in order to create a good atmosphere for negotiation with the architects.

The plaintiff referred to letters written by the architects between 30 May 2011 and 18 July 2011…, in which the architects were acknowledging payment of the various sums allegedly made by the defendant to them.

The letters themselves are drafted the same way except for the figure acknowledged. The plaintiff did not explain why no receipt, in the usual manner, was issued. It was suggested to him, under cross-examination, that the letters were manufactured to justify his claim and he did not give a meaningful response.

The plaintiff stated that he had paid the money to the Administrator of the defendant, Mr Makamure, who, alone with the accountant, Mr Tembo, effected payment to the architects.

He pointed out that there was no formal Board meeting to authorize the payment and there was evidence that some Board members did not want payments to be made to the architects while others favoured payment.

There was no formal instruction given to him to effect that payment.

He however sought legal advice from Mr Mabulala, who was also a Board member. Before Mr Mabulala's advice came, in the form of a letter dated 13 June 2011..., the plaintiff went ahead and started paying instalments to the architects, the first one of $3,500 being made on 30 May 2011. When the letter from Mabulala & Motsi legal practitioners finally came it not only endorsed that payment was a fait accompli, it also counselled caution. It reads:

“RE: ARCHTECTS

I refer to your note to me dated 9th June 2011 and the letter from Kantor and Immerman dated 8th June 2011. It seems to me that you have already committed yourself, personally, to paying the architects' fees, and, any opinion from me would be of academic interest. The question which remains is whether or not you can, and did, lawfully commit the hospital as well. I hope the Board and the shareholders are fully informed of these latest developments.”

From the correspondence that had been refereed to Mr Mabulala, it is apparent that the plaintiff had already offered to pay $50,000 to the architects in “tranches” and had already agreed with them that he would sign a Deed of “surety, acknowledgement and undertaking” in respect of the full extent of their claim of $1,303,783 in respect of their fee note dated 3 August 2010…,.

The plaintiff says he then convened a meeting of the Board, in September 2011, intending to regularise what he had done without Board approval.

Unfortunately, on 21 September 2011, he says he was locked out of his office at the hospital and was prevented from going in by armed guards. He has never had access to the office since then and his efforts to reclaim his position and the office, subsequent to that, have hit a brick wall.

He approached this court, in HC9630/11, for spoliatory relief but was turned down. The judgement in that matter, delivered by MUTEMA J is HH221-11, and, at p3 of it, the court made the following findings:

“Applicant alleges (he) was despoiled of the office as well as his personal belongings lodged therein which he uses for his private life and business. Respondents have offered that applicant is at liberty, at his earliest convenience, to come and collect his personal items. I have no reason to doubt the sincerity of that offer.

However, as regards the office, that is a different kettle of fish.

While applicant alleges spoliation, respondents' papers clearly show that it is him who is the spoliator. He had been away for some 8 months and Saungweme was in lawful and undisturbed possession of that office. He was denied occupation of the office but he locked it to the exclusion of everyone except himself. This, despite the exitant dispute between the parties, amounts on the applicant's part, to self-held.

I did not hear applicant to dispute respondents' version either on paper or in oral submissions, of how he ended up re-occupying the office. He therefore cannot come to court with clean hands. He is the spoliator. To allow him audience would be tantamount to sanctioning unlawfulness.”

He says that if the meeting took place he does not know what transpired as he was unable to attend.

What is even more important is the fact that he was unable to “regularize” his payments made to the architects without approval - meaning that the plaintiff's payments remained unsanctioned.

The plaintiff testified that he paid the architects, on behalf of the defendant, because it was necessary to maintain the integrity and good name of the institution.

He did not have vouchers to show that payment was indeed made through the defendant.

Although he did not have direct and formal authority to effect the payment, he had indirect authority emanating from the fact that the Board had tasked him to raise funds for the project.

It did not specify the source of those funds which then left him at liberty, as the Managing Director at the time, to pay from his pocket. In any event, loans from shareholders (he is a major shareholder) have been given to the institution in the past.

Under cross examination, it became apparent that the plaintiff was not the Managing Director at the time that he made instalment payments of the $50,000 to the architects - Dr Saungweme was. According to the minutes of a Board meeting held on 10 May 2011…, the plaintiff was trying to force his way back in that position. The minutes state, at paragraph 4.2:

“Dr P. Zvandasara

Dr Zvandasara came into the boardroom and advised the Board that he had notified the Board chair person that he was now back at the hospital as the Managing Director. He went on to say that he had taken legal action against some Board members who had accused him of stealing hospital funds.”

That state of affairs was also captured in the minutes of a Shareholders meeting held on 25 May 2011 during which the plaintiff notified the gathering that he was coming back as Managing Director (MD) because some people had accused him of being a thief. At paragraphs 5 and 6, the minutes state:

“He (the plaintiff) went on to declare that whether the members approved or not, he was now the one running the activities of the institution as the MD. He said that he could no longer work with the shareholders and proposed that we proceed with a separation either through him buying the other shareholders out or vice versa.

The shareholders noted, with concern, the developments that had taken place.

They advised Dr Zvandasara that the current recognised MD for the institution is Dr Saungweme; the position remained that Dr Saungweme had been appointed by the Board as the MD with effect from August 2010. This motion was put to the vote and was unanimously endorsed.”

It also became apparent that the defendant had contested the validity of the agreement for architectural services throughout, and, when they raised a fee note for those services, in the sum of $1,071,999=05, on 3 August 2010, about the same time that the plaintiff ceased to become Managing Director (MD), the defendant disputed liability.

It is a matter of record that in HC2893/12 the architects sued the defendant for the amount set out in the fee note, without deducting the $50,000 allegedly paid by the plaintiff, suggesting they did not recognise any payment. That claim was dismissed by this court, per DUBE J, by judgement delivered on 18 February 2015 (HH161-15).

In that matter, the plaintiff was called as a witness by the architects and stated that:

“He paid $50,000 from his own pocket after the defendant had refused to settle the fee note.”

My attention was also drawn to a summons and declaration in HC9444/11…, in which the plaintiff had sued the defendant for payment of the same amount of $50,000 through Mambosasa legal practitioners of Harare. In paragraph 7 of the declaration he had averred;

“The defendant failed, refused and/or neglected to pay the amount due to the architects in its entirety alleging, inter alia, that the plaintiff had no authority to contract with the architects resulting in the plaintiff feeling compelled to repay part of the debt from his personal sources.”

The totality of the evidence shows, clearly, that, at the time that the plaintiff took it upon himself to pay $50,000 of the claim made by the architects he had no authority of the defendant to make that payment and the defendant was already contesting the claim.

Evidence of Oath, Evidence Derived from Previous, Concurrent or Criminal Litigation, Perjury & Submissions from the Bar

The plaintiff is a medical doctor, a gynaecologist, and a professor at the University of Zimbabwe. He boasts that he is a founder member and majority shareholder of the defendant, a maternity institution he is suing for $50,000, being money he says he paid to a creditor of the defendant on its behalf.

In his declaration, the plaintiff averred that sometime in September 2005, while he was the Managing Director of the defendant, he entered into an agreement with Vengesayi Architects (the architects), on behalf of the defendant, in terms of which the architects were to provide the defendant with services for a fee. The architects were contracted to make town planning applications for special consent on the Stand, co-ordinate all project consultations, design, work on drawings and supervise construction work of the proposed additions and alterations to the hospital.

Although the architects drew up the plans, the defendant did not proceed with the construction, but, the agreement he had concluded with the architects resulted in the defendant being indebted to the architects in the sum of US$1,300,000.

As Managing Director, founder, and majority shareholder of the defendant he paid a sum of $50,000 towards settlement of the debt in order to protect the integrity and good name of the defendant.

The $50,000 was paid by him in instalments between 30 May 2011 and 18 July 2011. The plaintiff averred, in paragraph 8 of the declaration, that:

“The money paid to the architects by the plaintiff thus made the latter the defendant's creditor. There is no dispute as to whether the plaintiff made the payment aforesaid.”

The plaintiff then prayed for judgement in the sum of $50,000 together with interest at the prescribed rate and costs of suit on a legal practitioner and client scale.

Having entered appearance to defend, the defendant filed a plea denying liability and stating that the plaintiff was not authorised by its Board of Directors and shareholders to enter into an agreement with the architects and that he had entered into that agreement unlawfully.

It further averred that when the plaintiff paid the sum of $50,000 to the architects, he did so without the authority of the defendant. As he had entered into the agreement without authority, the plaintiff was personally liable to the architects. The plaintiff's claim should therefore be dismissed with punitive costs.

At the pre-trial conference the parties agreed on the issues as:

1. Whether the plaintiff entered into an architectural agreement with the architects without the authority of the defendant's Board of Directors and shareholders.

2. Whether the defendant is liable to the plaintiff in the sum of $50,000 paid to the architects.

Only the plaintiff gave evidence at the trial of this matter, stating that he had been the Managing Director of the defendant since 1998 and he still holds that position.

On 29 January 2010, the defendant's Board had proposed, and agreed, that they should negotiate terms of payment of the architects' fees for work done. The architects had performed work for the defendant and submitted a claim for the payment of their fees.

Prior to that, the architects had drawn plans for the development of the hospital which was called the second phase.

A contract had been signed in 2005 between the hospital and the architects with the former being represented by himself. He made reference to pages 66 to 69 of exhibit 1, being the agreement in question, stating that it was signed by himself in his capacity then as Executive Chairman and countersigned by the defendant's Administrator.

The plaintiff maintained that he had the authority of the Board which he worked with then, to enter into the agreement, and, as such, the agreement was binding on the defendant which however did not pay the fees of the architects even though a demand for payment was initially made in 2006, re-submitted in 2009, and, finally, in 2010.

Prior to making payment on behalf of the defendant, he had been specifically mandated, by the Board, to negotiate with potential investors for the funding of the project. He had brought in Banc ABC which was willing to invest $7.5 million and Mbizvo Group which was willing to invest $15 million into the project. Content with the funding arrangement, the plaintiff said he had incorporated the architects' fees in the funding. He then paid $50,000 to the architects satisfied that he could recoup his money in due course.

The payment was made in order to create a good atmosphere for negotiation with the architects.

The plaintiff referred to letters written by the architects between 30 May 2011 and 18 July 2011…, in which the architects were acknowledging payment of the various sums allegedly made by the defendant to them.

The letters themselves are drafted the same way except for the figure acknowledged. The plaintiff did not explain why no receipt, in the usual manner, was issued. It was suggested to him, under cross-examination, that the letters were manufactured to justify his claim and he did not give a meaningful response.

The plaintiff stated that he had paid the money to the Administrator of the defendant, Mr Makamure, who, alone with the accountant, Mr Tembo, effected payment to the architects.

He pointed out that there was no formal Board meeting to authorize the payment and there was evidence that some Board members did not want payments to be made to the architects while others favoured payment.

There was no formal instruction given to him to effect that payment.

He however sought legal advice from Mr Mabulala, who was also a Board member. Before Mr Mabulala's advice came, in the form of a letter dated 13 June 2011..., the plaintiff went ahead and started paying instalments to the architects, the first one of $3,500 being made on 30 May 2011. When the letter from Mabulala & Motsi legal practitioners finally came it not only endorsed that payment was a fait accompli, it also counselled caution. It reads:

“RE: ARCHTECTS

I refer to your note to me dated 9th June 2011 and the letter from Kantor and Immerman dated 8th June 2011. It seems to me that you have already committed yourself, personally, to paying the architects' fees, and, any opinion from me would be of academic interest. The question which remains is whether or not you can, and did, lawfully commit the hospital as well. I hope the Board and the shareholders are fully informed of these latest developments.”

From the correspondence that had been refereed to Mr Mabulala, it is apparent that the plaintiff had already offered to pay $50,000 to the architects in “tranches” and had already agreed with them that he would sign a Deed of “surety, acknowledgement and undertaking” in respect of the full extent of their claim of $1,303,783 in respect of their fee note dated 3 August 2010…,.

The plaintiff says he then convened a meeting of the Board, in September 2011, intending to regularise what he had done without Board approval.

Unfortunately, on 21 September 2011, he says he was locked out of his office at the hospital and was prevented from going in by armed guards. He has never had access to the office since then and his efforts to reclaim his position and the office, subsequent to that, have hit a brick wall.

He approached this court, in HC9630/11, for spoliatory relief but was turned down. The judgement in that matter, delivered by MUTEMA J is HH221-11, and, at p3 of it, the court made the following findings:

“Applicant alleges (he) was despoiled of the office as well as his personal belongings lodged therein which he uses for his private life and business. Respondents have offered that applicant is at liberty, at his earliest convenience, to come and collect his personal items. I have no reason to doubt the sincerity of that offer.

However, as regards the office, that is a different kettle of fish.

While applicant alleges spoliation, respondents' papers clearly show that it is him who is the spoliator. He had been away for some 8 months and Saungweme was in lawful and undisturbed possession of that office. He was denied occupation of the office but he locked it to the exclusion of everyone except himself. This, despite the exitant dispute between the parties, amounts on the applicant's part, to self-held.

I did not hear applicant to dispute respondents' version either on paper or in oral submissions, of how he ended up re-occupying the office. He therefore cannot come to court with clean hands. He is the spoliator. To allow him audience would be tantamount to sanctioning unlawfulness.”

He says that if the meeting took place he does not know what transpired as he was unable to attend.

What is even more important is the fact that he was unable to “regularize” his payments made to the architects without approval - meaning that the plaintiff's payments remained unsanctioned.

The plaintiff testified that he paid the architects, on behalf of the defendant, because it was necessary to maintain the integrity and good name of the institution.

He did not have vouchers to show that payment was indeed made through the defendant.

Although he did not have direct and formal authority to effect the payment, he had indirect authority emanating from the fact that the Board had tasked him to raise funds for the project.

It did not specify the source of those funds which then left him at liberty, as the Managing Director at the time, to pay from his pocket. In any event, loans from shareholders (he is a major shareholder) have been given to the institution in the past.

Under cross examination, it became apparent that the plaintiff was not the Managing Director at the time that he made instalment payments of the $50,000 to the architects - Dr Saungweme was. According to the minutes of a Board meeting held on 10 May 2011…, the plaintiff was trying to force his way back in that position. The minutes state, at paragraph 4.2:

“Dr P. Zvandasara

Dr Zvandasara came into the boardroom and advised the Board that he had notified the Board chair person that he was now back at the hospital as the Managing Director. He went on to say that he had taken legal action against some Board members who had accused him of stealing hospital funds.”

That state of affairs was also captured in the minutes of a Shareholders meeting held on 25 May 2011 during which the plaintiff notified the gathering that he was coming back as Managing Director (MD) because some people had accused him of being a thief. At paragraphs 5 and 6, the minutes state:

“He (the plaintiff) went on to declare that whether the members approved or not, he was now the one running the activities of the institution as the MD. He said that he could no longer work with the shareholders and proposed that we proceed with a separation either through him buying the other shareholders out or vice versa.

The shareholders noted, with concern, the developments that had taken place.

They advised Dr Zvandasara that the current recognised MD for the institution is Dr Saungweme; the position remained that Dr Saungweme had been appointed by the Board as the MD with effect from August 2010. This motion was put to the vote and was unanimously endorsed.”

It also became apparent that the defendant had contested the validity of the agreement for architectural services throughout, and, when they raised a fee note for those services, in the sum of $1,071,999=05, on 3 August 2010, about the same time that the plaintiff ceased to become Managing Director (MD), the defendant disputed liability.

It is a matter of record that in HC2893/12 the architects sued the defendant for the amount set out in the fee note, without deducting the $50,000 allegedly paid by the plaintiff, suggesting they did not recognise any payment. That claim was dismissed by this court, per DUBE J, by judgement delivered on 18 February 2015 (HH161-15).

In that matter, the plaintiff was called as a witness by the architects and stated that:

“He paid $50,000 from his own pocket after the defendant had refused to settle the fee note.”

My attention was also drawn to a summons and declaration in HC9444/11…, in which the plaintiff had sued the defendant for payment of the same amount of $50,000 through Mambosasa legal practitioners of Harare. In paragraph 7 of the declaration he had averred;

“The defendant failed, refused and/or neglected to pay the amount due to the architects in its entirety alleging, inter alia, that the plaintiff had no authority to contract with the architects resulting in the plaintiff feeling compelled to repay part of the debt from his personal sources.”

The totality of the evidence shows, clearly, that, at the time that the plaintiff took it upon himself to pay $50,000 of the claim made by the architects he had no authority of the defendant to make that payment and the defendant was already contesting the claim.

Findings of Fact re: Assessment of Evidence and Inferences iro Approach, Facta Probantia and Facta Probanda

The plaintiff is a medical doctor, a gynaecologist, and a professor at the University of Zimbabwe. He boasts that he is a founder member and majority shareholder of the defendant, a maternity institution he is suing for $50,000, being money he says he paid to a creditor of the defendant on its behalf.

In his declaration, the plaintiff averred that sometime in September 2005, while he was the Managing Director of the defendant, he entered into an agreement with Vengesayi Architects (the architects), on behalf of the defendant, in terms of which the architects were to provide the defendant with services for a fee. The architects were contracted to make town planning applications for special consent on the Stand, co-ordinate all project consultations, design, work on drawings and supervise construction work of the proposed additions and alterations to the hospital.

Although the architects drew up the plans, the defendant did not proceed with the construction, but, the agreement he had concluded with the architects resulted in the defendant being indebted to the architects in the sum of US$1,300,000.

As Managing Director, founder, and majority shareholder of the defendant he paid a sum of $50,000 towards settlement of the debt in order to protect the integrity and good name of the defendant.

The $50,000 was paid by him in instalments between 30 May 2011 and 18 July 2011. The plaintiff averred, in paragraph 8 of the declaration, that:

“The money paid to the architects by the plaintiff thus made the latter the defendant's creditor. There is no dispute as to whether the plaintiff made the payment aforesaid.”

The plaintiff then prayed for judgement in the sum of $50,000 together with interest at the prescribed rate and costs of suit on a legal practitioner and client scale.

Having entered appearance to defend, the defendant filed a plea denying liability and stating that the plaintiff was not authorised by its Board of Directors and shareholders to enter into an agreement with the architects and that he had entered into that agreement unlawfully.

It further averred that when the plaintiff paid the sum of $50,000 to the architects, he did so without the authority of the defendant. As he had entered into the agreement without authority, the plaintiff was personally liable to the architects. The plaintiff's claim should therefore be dismissed with punitive costs.

At the pre-trial conference the parties agreed on the issues as:

1. Whether the plaintiff entered into an architectural agreement with the architects without the authority of the defendant's Board of Directors and shareholders.

2. Whether the defendant is liable to the plaintiff in the sum of $50,000 paid to the architects.

Only the plaintiff gave evidence at the trial of this matter, stating that he had been the Managing Director of the defendant since 1998 and he still holds that position.

On 29 January 2010, the defendant's Board had proposed, and agreed, that they should negotiate terms of payment of the architects' fees for work done. The architects had performed work for the defendant and submitted a claim for the payment of their fees.

Prior to that, the architects had drawn plans for the development of the hospital which was called the second phase.

A contract had been signed in 2005 between the hospital and the architects with the former being represented by himself. He made reference to pages 66 to 69 of exhibit 1, being the agreement in question, stating that it was signed by himself in his capacity then as Executive Chairman and countersigned by the defendant's Administrator.

The plaintiff maintained that he had the authority of the Board which he worked with then, to enter into the agreement, and, as such, the agreement was binding on the defendant which however did not pay the fees of the architects even though a demand for payment was initially made in 2006, re-submitted in 2009, and, finally, in 2010.

Prior to making payment on behalf of the defendant, he had been specifically mandated, by the Board, to negotiate with potential investors for the funding of the project. He had brought in Banc ABC which was willing to invest $7.5 million and Mbizvo Group which was willing to invest $15 million into the project. Content with the funding arrangement, the plaintiff said he had incorporated the architects' fees in the funding. He then paid $50,000 to the architects satisfied that he could recoup his money in due course.

The payment was made in order to create a good atmosphere for negotiation with the architects.

The plaintiff referred to letters written by the architects between 30 May 2011 and 18 July 2011…, in which the architects were acknowledging payment of the various sums allegedly made by the defendant to them.

The letters themselves are drafted the same way except for the figure acknowledged. The plaintiff did not explain why no receipt, in the usual manner, was issued. It was suggested to him, under cross-examination, that the letters were manufactured to justify his claim and he did not give a meaningful response.

The plaintiff stated that he had paid the money to the Administrator of the defendant, Mr Makamure, who, alone with the accountant, Mr Tembo, effected payment to the architects.

He pointed out that there was no formal Board meeting to authorize the payment and there was evidence that some Board members did not want payments to be made to the architects while others favoured payment.

There was no formal instruction given to him to effect that payment.

He however sought legal advice from Mr Mabulala, who was also a Board member. Before Mr Mabulala's advice came, in the form of a letter dated 13 June 2011..., the plaintiff went ahead and started paying instalments to the architects, the first one of $3,500 being made on 30 May 2011. When the letter from Mabulala & Motsi legal practitioners finally came it not only endorsed that payment was a fait accompli, it also counselled caution. It reads:

“RE: ARCHTECTS

I refer to your note to me dated 9th June 2011 and the letter from Kantor and Immerman dated 8th June 2011. It seems to me that you have already committed yourself, personally, to paying the architects' fees, and, any opinion from me would be of academic interest. The question which remains is whether or not you can, and did, lawfully commit the hospital as well. I hope the Board and the shareholders are fully informed of these latest developments.”

From the correspondence that had been refereed to Mr Mabulala, it is apparent that the plaintiff had already offered to pay $50,000 to the architects in “tranches” and had already agreed with them that he would sign a Deed of “surety, acknowledgement and undertaking” in respect of the full extent of their claim of $1,303,783 in respect of their fee note dated 3 August 2010…,.

The plaintiff says he then convened a meeting of the Board, in September 2011, intending to regularise what he had done without Board approval.

Unfortunately, on 21 September 2011, he says he was locked out of his office at the hospital and was prevented from going in by armed guards. He has never had access to the office since then and his efforts to reclaim his position and the office, subsequent to that, have hit a brick wall.

He approached this court, in HC9630/11, for spoliatory relief but was turned down. The judgement in that matter, delivered by MUTEMA J is HH221-11, and, at p3 of it, the court made the following findings:

“Applicant alleges (he) was despoiled of the office as well as his personal belongings lodged therein which he uses for his private life and business. Respondents have offered that applicant is at liberty, at his earliest convenience, to come and collect his personal items. I have no reason to doubt the sincerity of that offer.

However, as regards the office, that is a different kettle of fish.

While applicant alleges spoliation, respondents' papers clearly show that it is him who is the spoliator. He had been away for some 8 months and Saungweme was in lawful and undisturbed possession of that office. He was denied occupation of the office but he locked it to the exclusion of everyone except himself. This, despite the exitant dispute between the parties, amounts on the applicant's part, to self-held.

I did not hear applicant to dispute respondents' version either on paper or in oral submissions, of how he ended up re-occupying the office. He therefore cannot come to court with clean hands. He is the spoliator. To allow him audience would be tantamount to sanctioning unlawfulness.”

He says that if the meeting took place he does not know what transpired as he was unable to attend.

What is even more important is the fact that he was unable to “regularize” his payments made to the architects without approval - meaning that the plaintiff's payments remained unsanctioned.

The plaintiff testified that he paid the architects, on behalf of the defendant, because it was necessary to maintain the integrity and good name of the institution.

He did not have vouchers to show that payment was indeed made through the defendant.

Although he did not have direct and formal authority to effect the payment, he had indirect authority emanating from the fact that the Board had tasked him to raise funds for the project.

It did not specify the source of those funds which then left him at liberty, as the Managing Director at the time, to pay from his pocket. In any event, loans from shareholders (he is a major shareholder) have been given to the institution in the past.

Under cross examination, it became apparent that the plaintiff was not the Managing Director at the time that he made instalment payments of the $50,000 to the architects - Dr Saungweme was. According to the minutes of a Board meeting held on 10 May 2011…, the plaintiff was trying to force his way back in that position. The minutes state, at paragraph 4.2:

“Dr P. Zvandasara

Dr Zvandasara came into the boardroom and advised the Board that he had notified the Board chair person that he was now back at the hospital as the Managing Director. He went on to say that he had taken legal action against some Board members who had accused him of stealing hospital funds.”

That state of affairs was also captured in the minutes of a Shareholders meeting held on 25 May 2011 during which the plaintiff notified the gathering that he was coming back as Managing Director (MD) because some people had accused him of being a thief. At paragraphs 5 and 6, the minutes state:

“He (the plaintiff) went on to declare that whether the members approved or not, he was now the one running the activities of the institution as the MD. He said that he could no longer work with the shareholders and proposed that we proceed with a separation either through him buying the other shareholders out or vice versa.

The shareholders noted, with concern, the developments that had taken place.

They advised Dr Zvandasara that the current recognised MD for the institution is Dr Saungweme; the position remained that Dr Saungweme had been appointed by the Board as the MD with effect from August 2010. This motion was put to the vote and was unanimously endorsed.”

It also became apparent that the defendant had contested the validity of the agreement for architectural services throughout, and, when they raised a fee note for those services, in the sum of $1,071,999=05, on 3 August 2010, about the same time that the plaintiff ceased to become Managing Director (MD), the defendant disputed liability.

It is a matter of record that in HC2893/12 the architects sued the defendant for the amount set out in the fee note, without deducting the $50,000 allegedly paid by the plaintiff, suggesting they did not recognise any payment. That claim was dismissed by this court, per DUBE J, by judgement delivered on 18 February 2015 (HH161-15).

In that matter, the plaintiff was called as a witness by the architects and stated that:

“He paid $50,000 from his own pocket after the defendant had refused to settle the fee note.”

My attention was also drawn to a summons and declaration in HC9444/11…, in which the plaintiff had sued the defendant for payment of the same amount of $50,000 through Mambosasa legal practitioners of Harare. In paragraph 7 of the declaration he had averred;

“The defendant failed, refused and/or neglected to pay the amount due to the architects in its entirety alleging, inter alia, that the plaintiff had no authority to contract with the architects resulting in the plaintiff feeling compelled to repay part of the debt from his personal sources.”

The totality of the evidence shows, clearly, that, at the time that the plaintiff took it upon himself to pay $50,000 of the claim made by the architects he had no authority of the defendant to make that payment and the defendant was already contesting the claim.

Pleadings re: Approach to Pleadings, Pre-Trial Proceedings, Disparities with Oral Evidence and Unchallenged Statements

The plaintiff is a medical doctor, a gynaecologist, and a professor at the University of Zimbabwe. He boasts that he is a founder member and majority shareholder of the defendant, a maternity institution he is suing for $50,000, being money he says he paid to a creditor of the defendant on its behalf.

In his declaration, the plaintiff averred that sometime in September 2005, while he was the Managing Director of the defendant, he entered into an agreement with Vengesayi Architects (the architects), on behalf of the defendant, in terms of which the architects were to provide the defendant with services for a fee. The architects were contracted to make town planning applications for special consent on the Stand, co-ordinate all project consultations, design, work on drawings and supervise construction work of the proposed additions and alterations to the hospital.

Although the architects drew up the plans, the defendant did not proceed with the construction, but, the agreement he had concluded with the architects resulted in the defendant being indebted to the architects in the sum of US$1,300,000.

As Managing Director, founder, and majority shareholder of the defendant he paid a sum of $50,000 towards settlement of the debt in order to protect the integrity and good name of the defendant.

The $50,000 was paid by him in instalments between 30 May 2011 and 18 July 2011. The plaintiff averred, in paragraph 8 of the declaration, that:

“The money paid to the architects by the plaintiff thus made the latter the defendant's creditor. There is no dispute as to whether the plaintiff made the payment aforesaid.”

The plaintiff then prayed for judgement in the sum of $50,000 together with interest at the prescribed rate and costs of suit on a legal practitioner and client scale.

Having entered appearance to defend, the defendant filed a plea denying liability and stating that the plaintiff was not authorised by its Board of Directors and shareholders to enter into an agreement with the architects and that he had entered into that agreement unlawfully.

It further averred that when the plaintiff paid the sum of $50,000 to the architects, he did so without the authority of the defendant. As he had entered into the agreement without authority, the plaintiff was personally liable to the architects. The plaintiff's claim should therefore be dismissed with punitive costs.

At the pre-trial conference the parties agreed on the issues as:

1. Whether the plaintiff entered into an architectural agreement with the architects without the authority of the defendant's Board of Directors and shareholders.

2. Whether the defendant is liable to the plaintiff in the sum of $50,000 paid to the architects.

Only the plaintiff gave evidence at the trial of this matter, stating that he had been the Managing Director of the defendant since 1998 and he still holds that position.

On 29 January 2010, the defendant's Board had proposed, and agreed, that they should negotiate terms of payment of the architects' fees for work done. The architects had performed work for the defendant and submitted a claim for the payment of their fees.

Prior to that, the architects had drawn plans for the development of the hospital which was called the second phase.

A contract had been signed in 2005 between the hospital and the architects with the former being represented by himself. He made reference to pages 66 to 69 of exhibit 1, being the agreement in question, stating that it was signed by himself in his capacity then as Executive Chairman and countersigned by the defendant's Administrator.

The plaintiff maintained that he had the authority of the Board which he worked with then, to enter into the agreement, and, as such, the agreement was binding on the defendant which however did not pay the fees of the architects even though a demand for payment was initially made in 2006, re-submitted in 2009, and, finally, in 2010.

Prior to making payment on behalf of the defendant, he had been specifically mandated, by the Board, to negotiate with potential investors for the funding of the project. He had brought in Banc ABC which was willing to invest $7.5 million and Mbizvo Group which was willing to invest $15 million into the project. Content with the funding arrangement, the plaintiff said he had incorporated the architects' fees in the funding. He then paid $50,000 to the architects satisfied that he could recoup his money in due course.

The payment was made in order to create a good atmosphere for negotiation with the architects.

The plaintiff referred to letters written by the architects between 30 May 2011 and 18 July 2011…, in which the architects were acknowledging payment of the various sums allegedly made by the defendant to them.

The letters themselves are drafted the same way except for the figure acknowledged. The plaintiff did not explain why no receipt, in the usual manner, was issued. It was suggested to him, under cross-examination, that the letters were manufactured to justify his claim and he did not give a meaningful response.

The plaintiff stated that he had paid the money to the Administrator of the defendant, Mr Makamure, who, alone with the accountant, Mr Tembo, effected payment to the architects.

He pointed out that there was no formal Board meeting to authorize the payment and there was evidence that some Board members did not want payments to be made to the architects while others favoured payment.

There was no formal instruction given to him to effect that payment.

He however sought legal advice from Mr Mabulala, who was also a Board member. Before Mr Mabulala's advice came, in the form of a letter dated 13 June 2011..., the plaintiff went ahead and started paying instalments to the architects, the first one of $3,500 being made on 30 May 2011. When the letter from Mabulala & Motsi legal practitioners finally came it not only endorsed that payment was a fait accompli, it also counselled caution. It reads:

“RE: ARCHTECTS

I refer to your note to me dated 9th June 2011 and the letter from Kantor and Immerman dated 8th June 2011. It seems to me that you have already committed yourself, personally, to paying the architects' fees, and, any opinion from me would be of academic interest. The question which remains is whether or not you can, and did, lawfully commit the hospital as well. I hope the Board and the shareholders are fully informed of these latest developments.”

From the correspondence that had been refereed to Mr Mabulala, it is apparent that the plaintiff had already offered to pay $50,000 to the architects in “tranches” and had already agreed with them that he would sign a Deed of “surety, acknowledgement and undertaking” in respect of the full extent of their claim of $1,303,783 in respect of their fee note dated 3 August 2010…,.

The plaintiff says he then convened a meeting of the Board, in September 2011, intending to regularise what he had done without Board approval.

Unfortunately, on 21 September 2011, he says he was locked out of his office at the hospital and was prevented from going in by armed guards. He has never had access to the office since then and his efforts to reclaim his position and the office, subsequent to that, have hit a brick wall.

He approached this court, in HC9630/11, for spoliatory relief but was turned down. The judgement in that matter, delivered by MUTEMA J is HH221-11, and, at p3 of it, the court made the following findings:

“Applicant alleges (he) was despoiled of the office as well as his personal belongings lodged therein which he uses for his private life and business. Respondents have offered that applicant is at liberty, at his earliest convenience, to come and collect his personal items. I have no reason to doubt the sincerity of that offer.

However, as regards the office, that is a different kettle of fish.

While applicant alleges spoliation, respondents' papers clearly show that it is him who is the spoliator. He had been away for some 8 months and Saungweme was in lawful and undisturbed possession of that office. He was denied occupation of the office but he locked it to the exclusion of everyone except himself. This, despite the exitant dispute between the parties, amounts on the applicant's part, to self-held.

I did not hear applicant to dispute respondents' version either on paper or in oral submissions, of how he ended up re-occupying the office. He therefore cannot come to court with clean hands. He is the spoliator. To allow him audience would be tantamount to sanctioning unlawfulness.”

He says that if the meeting took place he does not know what transpired as he was unable to attend.

What is even more important is the fact that he was unable to “regularize” his payments made to the architects without approval - meaning that the plaintiff's payments remained unsanctioned.

The plaintiff testified that he paid the architects, on behalf of the defendant, because it was necessary to maintain the integrity and good name of the institution.

Onus, Burden and Standard of Proof and Principle that He Who Alleges Must Prove re: Approach

The plaintiff is a medical doctor, a gynaecologist, and a professor at the University of Zimbabwe. He boasts that he is a founder member and majority shareholder of the defendant, a maternity institution he is suing for $50,000, being money he says he paid to a creditor of the defendant on its behalf.

In his declaration, the plaintiff averred that sometime in September 2005, while he was the Managing Director of the defendant, he entered into an agreement with Vengesayi Architects (the architects), on behalf of the defendant, in terms of which the architects were to provide the defendant with services for a fee. The architects were contracted to make town planning applications for special consent on the Stand, co-ordinate all project consultations, design, work on drawings and supervise construction work of the proposed additions and alterations to the hospital.

Although the architects drew up the plans, the defendant did not proceed with the construction, but, the agreement he had concluded with the architects resulted in the defendant being indebted to the architects in the sum of US$1,300,000.

As Managing Director, founder, and majority shareholder of the defendant he paid a sum of $50,000 towards settlement of the debt in order to protect the integrity and good name of the defendant.

The $50,000 was paid by him in instalments between 30 May 2011 and 18 July 2011. The plaintiff averred, in paragraph 8 of the declaration, that:

“The money paid to the architects by the plaintiff thus made the latter the defendant's creditor. There is no dispute as to whether the plaintiff made the payment aforesaid.”

The plaintiff then prayed for judgement in the sum of $50,000 together with interest at the prescribed rate and costs of suit on a legal practitioner and client scale.

Having entered appearance to defend, the defendant filed a plea denying liability and stating that the plaintiff was not authorised by its Board of Directors and shareholders to enter into an agreement with the architects and that he had entered into that agreement unlawfully.

It further averred that when the plaintiff paid the sum of $50,000 to the architects, he did so without the authority of the defendant. As he had entered into the agreement without authority, the plaintiff was personally liable to the architects. The plaintiff's claim should therefore be dismissed with punitive costs.

At the pre-trial conference the parties agreed on the issues as:

1. Whether the plaintiff entered into an architectural agreement with the architects without the authority of the defendant's Board of Directors and shareholders.

2. Whether the defendant is liable to the plaintiff in the sum of $50,000 paid to the architects.

Only the plaintiff gave evidence at the trial of this matter, stating that he had been the Managing Director of the defendant since 1998 and he still holds that position.

On 29 January 2010, the defendant's Board had proposed, and agreed, that they should negotiate terms of payment of the architects' fees for work done. The architects had performed work for the defendant and submitted a claim for the payment of their fees.

Prior to that, the architects had drawn plans for the development of the hospital which was called the second phase.

A contract had been signed in 2005 between the hospital and the architects with the former being represented by himself. He made reference to pages 66 to 69 of exhibit 1, being the agreement in question, stating that it was signed by himself in his capacity then as Executive Chairman and countersigned by the defendant's Administrator.

The plaintiff maintained that he had the authority of the Board which he worked with then, to enter into the agreement, and, as such, the agreement was binding on the defendant which however did not pay the fees of the architects even though a demand for payment was initially made in 2006, re-submitted in 2009, and, finally, in 2010.

Prior to making payment on behalf of the defendant, he had been specifically mandated, by the Board, to negotiate with potential investors for the funding of the project. He had brought in Banc ABC which was willing to invest $7.5 million and Mbizvo Group which was willing to invest $15 million into the project. Content with the funding arrangement, the plaintiff said he had incorporated the architects' fees in the funding. He then paid $50,000 to the architects satisfied that he could recoup his money in due course.

The payment was made in order to create a good atmosphere for negotiation with the architects.

The plaintiff referred to letters written by the architects between 30 May 2011 and 18 July 2011…, in which the architects were acknowledging payment of the various sums allegedly made by the defendant to them.

The letters themselves are drafted the same way except for the figure acknowledged. The plaintiff did not explain why no receipt, in the usual manner, was issued. It was suggested to him, under cross-examination, that the letters were manufactured to justify his claim and he did not give a meaningful response.

The plaintiff stated that he had paid the money to the Administrator of the defendant, Mr Makamure, who, alone with the accountant, Mr Tembo, effected payment to the architects.

He pointed out that there was no formal Board meeting to authorize the payment and there was evidence that some Board members did not want payments to be made to the architects while others favoured payment.

There was no formal instruction given to him to effect that payment.

He however sought legal advice from Mr Mabulala, who was also a Board member. Before Mr Mabulala's advice came, in the form of a letter dated 13 June 2011..., the plaintiff went ahead and started paying instalments to the architects, the first one of $3,500 being made on 30 May 2011. When the letter from Mabulala & Motsi legal practitioners finally came it not only endorsed that payment was a fait accompli, it also counselled caution. It reads:

“RE: ARCHTECTS

I refer to your note to me dated 9th June 2011 and the letter from Kantor and Immerman dated 8th June 2011. It seems to me that you have already committed yourself, personally, to paying the architects' fees, and, any opinion from me would be of academic interest. The question which remains is whether or not you can, and did, lawfully commit the hospital as well. I hope the Board and the shareholders are fully informed of these latest developments.”

From the correspondence that had been refereed to Mr Mabulala, it is apparent that the plaintiff had already offered to pay $50,000 to the architects in “tranches” and had already agreed with them that he would sign a Deed of “surety, acknowledgement and undertaking” in respect of the full extent of their claim of $1,303,783 in respect of their fee note dated 3 August 2010…,.

The plaintiff says he then convened a meeting of the Board, in September 2011, intending to regularise what he had done without Board approval.

Unfortunately, on 21 September 2011, he says he was locked out of his office at the hospital and was prevented from going in by armed guards. He has never had access to the office since then and his efforts to reclaim his position and the office, subsequent to that, have hit a brick wall.

He approached this court, in HC9630/11, for spoliatory relief but was turned down. The judgement in that matter, delivered by MUTEMA J is HH221-11, and, at p3 of it, the court made the following findings:

“Applicant alleges (he) was despoiled of the office as well as his personal belongings lodged therein which he uses for his private life and business. Respondents have offered that applicant is at liberty, at his earliest convenience, to come and collect his personal items. I have no reason to doubt the sincerity of that offer.

However, as regards the office, that is a different kettle of fish.

While applicant alleges spoliation, respondents' papers clearly show that it is him who is the spoliator. He had been away for some 8 months and Saungweme was in lawful and undisturbed possession of that office. He was denied occupation of the office but he locked it to the exclusion of everyone except himself. This, despite the exitant dispute between the parties, amounts on the applicant's part, to self-held.

I did not hear applicant to dispute respondents' version either on paper or in oral submissions, of how he ended up re-occupying the office. He therefore cannot come to court with clean hands. He is the spoliator. To allow him audience would be tantamount to sanctioning unlawfulness.”

He says that if the meeting took place he does not know what transpired as he was unable to attend.

What is even more important is the fact that he was unable to “regularize” his payments made to the architects without approval - meaning that the plaintiff's payments remained unsanctioned.

The plaintiff testified that he paid the architects, on behalf of the defendant, because it was necessary to maintain the integrity and good name of the institution.

He did not have vouchers to show that payment was indeed made through the defendant.

Although he did not have direct and formal authority to effect the payment, he had indirect authority emanating from the fact that the Board had tasked him to raise funds for the project.

It did not specify the source of those funds which then left him at liberty, as the Managing Director at the time, to pay from his pocket. In any event, loans from shareholders (he is a major shareholder) have been given to the institution in the past.

Under cross examination, it became apparent that the plaintiff was not the Managing Director at the time that he made instalment payments of the $50,000 to the architects - Dr Saungweme was. According to the minutes of a Board meeting held on 10 May 2011…, the plaintiff was trying to force his way back in that position. The minutes state, at paragraph 4.2:

“Dr P. Zvandasara

Dr Zvandasara came into the boardroom and advised the Board that he had notified the Board chair person that he was now back at the hospital as the Managing Director. He went on to say that he had taken legal action against some Board members who had accused him of stealing hospital funds.”

That state of affairs was also captured in the minutes of a Shareholders meeting held on 25 May 2011 during which the plaintiff notified the gathering that he was coming back as Managing Director (MD) because some people had accused him of being a thief. At paragraphs 5 and 6, the minutes state:

“He (the plaintiff) went on to declare that whether the members approved or not, he was now the one running the activities of the institution as the MD. He said that he could no longer work with the shareholders and proposed that we proceed with a separation either through him buying the other shareholders out or vice versa.

The shareholders noted, with concern, the developments that had taken place.

They advised Dr Zvandasara that the current recognised MD for the institution is Dr Saungweme; the position remained that Dr Saungweme had been appointed by the Board as the MD with effect from August 2010. This motion was put to the vote and was unanimously endorsed.”

It also became apparent that the defendant had contested the validity of the agreement for architectural services throughout, and, when they raised a fee note for those services, in the sum of $1,071,999=05, on 3 August 2010, about the same time that the plaintiff ceased to become Managing Director (MD), the defendant disputed liability.

It is a matter of record that in HC2893/12 the architects sued the defendant for the amount set out in the fee note, without deducting the $50,000 allegedly paid by the plaintiff, suggesting they did not recognise any payment. That claim was dismissed by this court, per DUBE J, by judgement delivered on 18 February 2015 (HH161-15).

In that matter, the plaintiff was called as a witness by the architects and stated that:

“He paid $50,000 from his own pocket after the defendant had refused to settle the fee note.”

My attention was also drawn to a summons and declaration in HC9444/11…, in which the plaintiff had sued the defendant for payment of the same amount of $50,000 through Mambosasa legal practitioners of Harare. In paragraph 7 of the declaration he had averred;

“The defendant failed, refused and/or neglected to pay the amount due to the architects in its entirety alleging, inter alia, that the plaintiff had no authority to contract with the architects resulting in the plaintiff feeling compelled to repay part of the debt from his personal sources.”

The totality of the evidence shows, clearly, that, at the time that the plaintiff took it upon himself to pay $50,000 of the claim made by the architects he had no authority of the defendant to make that payment and the defendant was already contesting the claim.

The plaintiff was aware of the defendant's position in that regard but decided to take a calculated risk and pay the money all the same. He said that he did so because he could not renege on the promise he had given to the architects that payment would be made.

At the end of evidence for the plaintiff, counsel for the defendant made an application for absolution from the instance on the basis that no evidence had been led upon which the court may find in favour of the plaintiff. He submitted that the evidence has not shown any contract between the parties in terms of which the money was paid. In any case, the claim, as pleaded, is not based on contract.

In addition, the claim is not based on unjust enrichment either because it was not pleaded.

Counsel for the defendant submitted that the plaintiff's counsel could not possibly introduce the claim for unjust enrichment in his opening address when it has not been pleaded.

In any event, according to the plaintiff's evidence, he paid the $50,000 without authority in order to create a conducive atmosphere for dialogue between the parties. He did not achieve that objective and there is no evidence that the defendant was enriched in any way.

Counsel for the plaintiff opposed the application, submitting that the plaintiff has shown, in his evidence, that the defendant was enriched by the payment made to the architects especially as the plans prepared are available and can be used.

No such evidence about the plans was led.

Pleadings re: Approach to Pleadings, Pre-Trial Proceedings, Disparities with Oral Evidence and Unchallenged Statements

The essence of any claim is to be found in the pleadings.

It is the function of pleadings to inform the parties of the points of issue between them to enable them to know, in advance, what case they have to meet, to assist the court to define the limits of the action, and to place the issues on record: Matewa v Zimbabwe Electricity Transmission and Distribution Company (ZETDC) HH04-13...,; see also BECK's Theory and Principles of Civil Actions, 5th ed..., and Chifamba v Mutasa & Ors HH16-08.

Where a litigant has pleaded a particular cause of action, the opponent is entitled to rely on that pleading in order to prepare for court and put together evidence which it has in order to meet the claim at the trial.

This is because the pleading exists for the purpose, first and foremost, of informing the other party of the precise nature of the claim they have to meet. The party pleading in that way, and therefore informing the other of the claim, cannot be allowed to twist and turn and infer averments that have not been pleaded.

Allowing that would not only embarrass the other party but also prejudice that party.

Prevaricative or Inconsistent Evidence and Approbating and Reprobating a Course in Proceedings

The essence of any claim is to be found in the pleadings.

It is the function of pleadings to inform the parties of the points of issue between them to enable them to know, in advance, what case they have to meet, to assist the court to define the limits of the action, and to place the issues on record: Matewa v Zimbabwe Electricity Transmission and Distribution Company (ZETDC) HH04-13...,; see also BECK's Theory and Principles of Civil Actions, 5th ed..., and Chifamba v Mutasa & Ors HH16-08.

Where a litigant has pleaded a particular cause of action, the opponent is entitled to rely on that pleading in order to prepare for court and put together evidence which it has in order to meet the claim at the trial.

This is because the pleading exists for the purpose, first and foremost, of informing the other party of the precise nature of the claim they have to meet. The party pleading in that way, and therefore informing the other of the claim, cannot be allowed to twist and turn and infer averments that have not been pleaded.

Allowing that would not only embarrass the other party but also prejudice that party.

Pleadings re: Belated Pleadings, Matters Raised Mero Motu by the Court and the Doctrine of Notice iro Approach

The plaintiff is a medical doctor, a gynaecologist, and a professor at the University of Zimbabwe. He boasts that he is a founder member and majority shareholder of the defendant, a maternity institution he is suing for $50,000, being money he says he paid to a creditor of the defendant on its behalf.

In his declaration, the plaintiff averred that sometime in September 2005, while he was the Managing Director of the defendant, he entered into an agreement with Vengesayi Architects (the architects), on behalf of the defendant, in terms of which the architects were to provide the defendant with services for a fee. The architects were contracted to make town planning applications for special consent on the Stand, co-ordinate all project consultations, design, work on drawings and supervise construction work of the proposed additions and alterations to the hospital.

Although the architects drew up the plans, the defendant did not proceed with the construction, but, the agreement he had concluded with the architects resulted in the defendant being indebted to the architects in the sum of US$1,300,000.

As Managing Director, founder, and majority shareholder of the defendant he paid a sum of $50,000 towards settlement of the debt in order to protect the integrity and good name of the defendant.

The $50,000 was paid by him in instalments between 30 May 2011 and 18 July 2011. The plaintiff averred, in paragraph 8 of the declaration, that:

“The money paid to the architects by the plaintiff thus made the latter the defendant's creditor. There is no dispute as to whether the plaintiff made the payment aforesaid.”

The plaintiff then prayed for judgement in the sum of $50,000 together with interest at the prescribed rate and costs of suit on a legal practitioner and client scale.

Having entered appearance to defend, the defendant filed a plea denying liability and stating that the plaintiff was not authorised by its Board of Directors and shareholders to enter into an agreement with the architects and that he had entered into that agreement unlawfully.

It further averred that when the plaintiff paid the sum of $50,000 to the architects, he did so without the authority of the defendant. As he had entered into the agreement without authority, the plaintiff was personally liable to the architects. The plaintiff's claim should therefore be dismissed with punitive costs.

At the pre-trial conference the parties agreed on the issues as:

1. Whether the plaintiff entered into an architectural agreement with the architects without the authority of the defendant's Board of Directors and shareholders.

2. Whether the defendant is liable to the plaintiff in the sum of $50,000 paid to the architects.

Only the plaintiff gave evidence at the trial of this matter, stating that he had been the Managing Director of the defendant since 1998 and he still holds that position.

On 29 January 2010, the defendant's Board had proposed, and agreed, that they should negotiate terms of payment of the architects' fees for work done. The architects had performed work for the defendant and submitted a claim for the payment of their fees.

Prior to that, the architects had drawn plans for the development of the hospital which was called the second phase.

A contract had been signed in 2005 between the hospital and the architects with the former being represented by himself. He made reference to pages 66 to 69 of exhibit 1, being the agreement in question, stating that it was signed by himself in his capacity then as Executive Chairman and countersigned by the defendant's Administrator.

The plaintiff maintained that he had the authority of the Board which he worked with then, to enter into the agreement, and, as such, the agreement was binding on the defendant which however did not pay the fees of the architects even though a demand for payment was initially made in 2006, re-submitted in 2009, and, finally, in 2010.

Prior to making payment on behalf of the defendant, he had been specifically mandated, by the Board, to negotiate with potential investors for the funding of the project. He had brought in Banc ABC which was willing to invest $7.5 million and Mbizvo Group which was willing to invest $15 million into the project. Content with the funding arrangement, the plaintiff said he had incorporated the architects' fees in the funding. He then paid $50,000 to the architects satisfied that he could recoup his money in due course.

The payment was made in order to create a good atmosphere for negotiation with the architects.

The plaintiff referred to letters written by the architects between 30 May 2011 and 18 July 2011…, in which the architects were acknowledging payment of the various sums allegedly made by the defendant to them.

The letters themselves are drafted the same way except for the figure acknowledged. The plaintiff did not explain why no receipt, in the usual manner, was issued. It was suggested to him, under cross-examination, that the letters were manufactured to justify his claim and he did not give a meaningful response.

The plaintiff stated that he had paid the money to the Administrator of the defendant, Mr Makamure, who, alone with the accountant, Mr Tembo, effected payment to the architects.

He pointed out that there was no formal Board meeting to authorize the payment and there was evidence that some Board members did not want payments to be made to the architects while others favoured payment.

There was no formal instruction given to him to effect that payment.

He however sought legal advice from Mr Mabulala, who was also a Board member. Before Mr Mabulala's advice came, in the form of a letter dated 13 June 2011..., the plaintiff went ahead and started paying instalments to the architects, the first one of $3,500 being made on 30 May 2011. When the letter from Mabulala & Motsi legal practitioners finally came it not only endorsed that payment was a fait accompli, it also counselled caution. It reads:

“RE: ARCHTECTS

I refer to your note to me dated 9th June 2011 and the letter from Kantor and Immerman dated 8th June 2011. It seems to me that you have already committed yourself, personally, to paying the architects' fees, and, any opinion from me would be of academic interest. The question which remains is whether or not you can, and did, lawfully commit the hospital as well. I hope the Board and the shareholders are fully informed of these latest developments.”

From the correspondence that had been refereed to Mr Mabulala, it is apparent that the plaintiff had already offered to pay $50,000 to the architects in “tranches” and had already agreed with them that he would sign a Deed of “surety, acknowledgement and undertaking” in respect of the full extent of their claim of $1,303,783 in respect of their fee note dated 3 August 2010…,.

The plaintiff says he then convened a meeting of the Board, in September 2011, intending to regularise what he had done without Board approval.

Unfortunately, on 21 September 2011, he says he was locked out of his office at the hospital and was prevented from going in by armed guards. He has never had access to the office since then and his efforts to reclaim his position and the office, subsequent to that, have hit a brick wall.

He approached this court, in HC9630/11, for spoliatory relief but was turned down. The judgement in that matter, delivered by MUTEMA J is HH221-11, and, at p3 of it, the court made the following findings:

“Applicant alleges (he) was despoiled of the office as well as his personal belongings lodged therein which he uses for his private life and business. Respondents have offered that applicant is at liberty, at his earliest convenience, to come and collect his personal items. I have no reason to doubt the sincerity of that offer.

However, as regards the office, that is a different kettle of fish.

While applicant alleges spoliation, respondents' papers clearly show that it is him who is the spoliator. He had been away for some 8 months and Saungweme was in lawful and undisturbed possession of that office. He was denied occupation of the office but he locked it to the exclusion of everyone except himself. This, despite the exitant dispute between the parties, amounts on the applicant's part, to self-held.

I did not hear applicant to dispute respondents' version either on paper or in oral submissions, of how he ended up re-occupying the office. He therefore cannot come to court with clean hands. He is the spoliator. To allow him audience would be tantamount to sanctioning unlawfulness.”

He says that if the meeting took place he does not know what transpired as he was unable to attend.

What is even more important is the fact that he was unable to “regularize” his payments made to the architects without approval - meaning that the plaintiff's payments remained unsanctioned.

The plaintiff testified that he paid the architects, on behalf of the defendant, because it was necessary to maintain the integrity and good name of the institution.

He did not have vouchers to show that payment was indeed made through the defendant.

Although he did not have direct and formal authority to effect the payment, he had indirect authority emanating from the fact that the Board had tasked him to raise funds for the project.

It did not specify the source of those funds which then left him at liberty, as the Managing Director at the time, to pay from his pocket. In any event, loans from shareholders (he is a major shareholder) have been given to the institution in the past.

Under cross examination, it became apparent that the plaintiff was not the Managing Director at the time that he made instalment payments of the $50,000 to the architects - Dr Saungweme was. According to the minutes of a Board meeting held on 10 May 2011…, the plaintiff was trying to force his way back in that position. The minutes state, at paragraph 4.2:

“Dr P. Zvandasara

Dr Zvandasara came into the boardroom and advised the Board that he had notified the Board chair person that he was now back at the hospital as the Managing Director. He went on to say that he had taken legal action against some Board members who had accused him of stealing hospital funds.”

That state of affairs was also captured in the minutes of a Shareholders meeting held on 25 May 2011 during which the plaintiff notified the gathering that he was coming back as Managing Director (MD) because some people had accused him of being a thief. At paragraphs 5 and 6, the minutes state:

“He (the plaintiff) went on to declare that whether the members approved or not, he was now the one running the activities of the institution as the MD. He said that he could no longer work with the shareholders and proposed that we proceed with a separation either through him buying the other shareholders out or vice versa.

The shareholders noted, with concern, the developments that had taken place.

They advised Dr Zvandasara that the current recognised MD for the institution is Dr Saungweme; the position remained that Dr Saungweme had been appointed by the Board as the MD with effect from August 2010. This motion was put to the vote and was unanimously endorsed.”

It also became apparent that the defendant had contested the validity of the agreement for architectural services throughout, and, when they raised a fee note for those services, in the sum of $1,071,999=05, on 3 August 2010, about the same time that the plaintiff ceased to become Managing Director (MD), the defendant disputed liability.

It is a matter of record that in HC2893/12 the architects sued the defendant for the amount set out in the fee note, without deducting the $50,000 allegedly paid by the plaintiff, suggesting they did not recognise any payment. That claim was dismissed by this court, per DUBE J, by judgement delivered on 18 February 2015 (HH161-15).

In that matter, the plaintiff was called as a witness by the architects and stated that:

“He paid $50,000 from his own pocket after the defendant had refused to settle the fee note.”

My attention was also drawn to a summons and declaration in HC9444/11…, in which the plaintiff had sued the defendant for payment of the same amount of $50,000 through Mambosasa legal practitioners of Harare. In paragraph 7 of the declaration he had averred;

“The defendant failed, refused and/or neglected to pay the amount due to the architects in its entirety alleging, inter alia, that the plaintiff had no authority to contract with the architects resulting in the plaintiff feeling compelled to repay part of the debt from his personal sources.”

The totality of the evidence shows, clearly, that, at the time that the plaintiff took it upon himself to pay $50,000 of the claim made by the architects he had no authority of the defendant to make that payment and the defendant was already contesting the claim.

The plaintiff was aware of the defendant's position in that regard but decided to take a calculated risk and pay the money all the same. He said that he did so because he could not renege on the promise he had given to the architects that payment would be made.

At the end of evidence for the plaintiff, counsel for the defendant made an application for absolution from the instance on the basis that no evidence had been led upon which the court may find in favour of the plaintiff. He submitted that the evidence has not shown any contract between the parties in terms of which the money was paid. In any case, the claim, as pleaded, is not based on contract.

In addition, the claim is not based on unjust enrichment either because it was not pleaded.

Counsel for the defendant submitted that the plaintiff's counsel could not possibly introduce the claim for unjust enrichment in his opening address when it has not been pleaded....,.

As to whether unjust enrichment was pleaded, counsel for the plaintiff suggested that it should be implied from paragraph 8 of the declaration which I have already quoted above.

Surely, that averment cannot, by any stretch of the imagination, be taken as pleading unjust enrichment.

What counsel is asking me to do is to stretch the imagination to elasticity limit.

The plaintiff merely averred, that, by paying to the architects, the plaintiff became the defendant's creditor and not that the defendant was unjustly enriched by such payment. As to how the debtor-creditor relationship so alleged germinated from those circumstances we are not told.

The essence of any claim is to be found in the pleadings.

It is the function of pleadings to inform the parties of the points of issue between them to enable them to know, in advance, what case they have to meet, to assist the court to define the limits of the action, and to place the issues on record: Matewa v Zimbabwe Electricity Transmission and Distribution Company (ZETDC) HH04-13...,; see also BECK's Theory and Principles of Civil Actions, 5th ed..., and Chifamba v Mutasa & Ors HH16-08.

Where a litigant has pleaded a particular cause of action, the opponent is entitled to rely on that pleading in order to prepare for court and put together evidence which it has in order to meet the claim at the trial.

This is because the pleading exists for the purpose, first and foremost, of informing the other party of the precise nature of the claim they have to meet. The party pleading in that way, and therefore informing the other of the claim, cannot be allowed to twist and turn and infer averments that have not been pleaded. Allowing that would not only embarrass the other party but also prejudice that party.

In an application for absolution, the test to be applied was set out by GUBBAY CJ in United Air Charterers v Jarman 1994 (2) ZLR 341 (S)..., as:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction.

A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court directing its mind reasonably to such evidence, could or might (not should or ought to) find for him; see Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A) at 5D–E; Lourenco v Raja Dry Cleaners & Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) at 158B–E.”

In Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A)..., BEADLE CJ said of that test:

“The test boils down to this: Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff?

What is a reasonable mistake in any case must always be a question of fact, and cannot be defined with any greater exactitude than by saying that it is the sort of mistake a reasonable court might make – a definition which helps not at all.”

See also Quintessence Co-ordinators (Pty) Ltd v Government of the Republic of Transkei 1993 (3) SA T84 (TK) 85B–D; Standard Chartered Finance Zimbabwe Ltd v Georgious & Anor 1998 (2) ZLR 547 (H) 55 2 G–H; Modcraft Engineering (Pvt) Ltd v Tenda Buses (Pvt) Ltd 207-13; Katsande v Welt Huinger Hilfer & Anor HH396-13.

It is true that if the defence is something peculiarly within the knowledge of a defendant and the plaintiff has made out some case to answer, the plaintiff would not be lightly deprived of his remedy without first hearing what the defendant has to say, and such a defendant should not be allowed to shelter behind the procedure of absolution from the instance merely because he is afraid to go into the witness box; Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A)...,; Munhuwa v Mhukahuru Bus Service 1994 (2) ZLR 382 (H)...,.

Right from the commencement of the trial, the plaintiff premised his claim on unjust enrichment. That is what counsel for the plaintiff said in his opening address. He did not, however, see any wisdom in amending the declaration to ground the claim on unjust enrichment, electing, instead, to leave it to the court to infer such a claim.

What remains at this stage, however, is that there is no claim based on unjust enrichment.

Cause of Action and Draft Orders re: Approach, Timing, Framing and Legal Basis for Invoking Jurisdiction of the Court

The plaintiff is a medical doctor, a gynaecologist, and a professor at the University of Zimbabwe. He boasts that he is a founder member and majority shareholder of the defendant, a maternity institution he is suing for $50,000, being money he says he paid to a creditor of the defendant on its behalf.

In his declaration, the plaintiff averred that sometime in September 2005, while he was the Managing Director of the defendant, he entered into an agreement with Vengesayi Architects (the architects), on behalf of the defendant, in terms of which the architects were to provide the defendant with services for a fee. The architects were contracted to make town planning applications for special consent on the Stand, co-ordinate all project consultations, design, work on drawings and supervise construction work of the proposed additions and alterations to the hospital.

Although the architects drew up the plans, the defendant did not proceed with the construction, but, the agreement he had concluded with the architects resulted in the defendant being indebted to the architects in the sum of US$1,300,000.

As Managing Director, founder, and majority shareholder of the defendant he paid a sum of $50,000 towards settlement of the debt in order to protect the integrity and good name of the defendant.

The $50,000 was paid by him in instalments between 30 May 2011 and 18 July 2011. The plaintiff averred, in paragraph 8 of the declaration, that:

“The money paid to the architects by the plaintiff thus made the latter the defendant's creditor. There is no dispute as to whether the plaintiff made the payment aforesaid.”

The plaintiff then prayed for judgement in the sum of $50,000 together with interest at the prescribed rate and costs of suit on a legal practitioner and client scale.

Having entered appearance to defend, the defendant filed a plea denying liability and stating that the plaintiff was not authorised by its Board of Directors and shareholders to enter into an agreement with the architects and that he had entered into that agreement unlawfully.

It further averred that when the plaintiff paid the sum of $50,000 to the architects, he did so without the authority of the defendant. As he had entered into the agreement without authority, the plaintiff was personally liable to the architects. The plaintiff's claim should therefore be dismissed with punitive costs.

At the pre-trial conference the parties agreed on the issues as:

1. Whether the plaintiff entered into an architectural agreement with the architects without the authority of the defendant's Board of Directors and shareholders.

2. Whether the defendant is liable to the plaintiff in the sum of $50,000 paid to the architects.

Only the plaintiff gave evidence at the trial of this matter, stating that he had been the Managing Director of the defendant since 1998 and he still holds that position.

On 29 January 2010, the defendant's Board had proposed, and agreed, that they should negotiate terms of payment of the architects' fees for work done. The architects had performed work for the defendant and submitted a claim for the payment of their fees.

Prior to that, the architects had drawn plans for the development of the hospital which was called the second phase.

A contract had been signed in 2005 between the hospital and the architects with the former being represented by himself. He made reference to pages 66 to 69 of exhibit 1, being the agreement in question, stating that it was signed by himself in his capacity then as Executive Chairman and countersigned by the defendant's Administrator.

The plaintiff maintained that he had the authority of the Board which he worked with then, to enter into the agreement, and, as such, the agreement was binding on the defendant which however did not pay the fees of the architects even though a demand for payment was initially made in 2006, re-submitted in 2009, and, finally, in 2010.

Prior to making payment on behalf of the defendant, he had been specifically mandated, by the Board, to negotiate with potential investors for the funding of the project. He had brought in Banc ABC which was willing to invest $7.5 million and Mbizvo Group which was willing to invest $15 million into the project. Content with the funding arrangement, the plaintiff said he had incorporated the architects' fees in the funding. He then paid $50,000 to the architects satisfied that he could recoup his money in due course.

The payment was made in order to create a good atmosphere for negotiation with the architects.

The plaintiff referred to letters written by the architects between 30 May 2011 and 18 July 2011…, in which the architects were acknowledging payment of the various sums allegedly made by the defendant to them.

The letters themselves are drafted the same way except for the figure acknowledged. The plaintiff did not explain why no receipt, in the usual manner, was issued. It was suggested to him, under cross-examination, that the letters were manufactured to justify his claim and he did not give a meaningful response.

The plaintiff stated that he had paid the money to the Administrator of the defendant, Mr Makamure, who, alone with the accountant, Mr Tembo, effected payment to the architects.

He pointed out that there was no formal Board meeting to authorize the payment and there was evidence that some Board members did not want payments to be made to the architects while others favoured payment.

There was no formal instruction given to him to effect that payment.

He however sought legal advice from Mr Mabulala, who was also a Board member. Before Mr Mabulala's advice came, in the form of a letter dated 13 June 2011..., the plaintiff went ahead and started paying instalments to the architects, the first one of $3,500 being made on 30 May 2011. When the letter from Mabulala & Motsi legal practitioners finally came it not only endorsed that payment was a fait accompli, it also counselled caution. It reads:

“RE: ARCHTECTS

I refer to your note to me dated 9th June 2011 and the letter from Kantor and Immerman dated 8th June 2011. It seems to me that you have already committed yourself, personally, to paying the architects' fees, and, any opinion from me would be of academic interest. The question which remains is whether or not you can, and did, lawfully commit the hospital as well. I hope the Board and the shareholders are fully informed of these latest developments.”

From the correspondence that had been refereed to Mr Mabulala, it is apparent that the plaintiff had already offered to pay $50,000 to the architects in “tranches” and had already agreed with them that he would sign a Deed of “surety, acknowledgement and undertaking” in respect of the full extent of their claim of $1,303,783 in respect of their fee note dated 3 August 2010…,.

The plaintiff says he then convened a meeting of the Board, in September 2011, intending to regularise what he had done without Board approval.

Unfortunately, on 21 September 2011, he says he was locked out of his office at the hospital and was prevented from going in by armed guards. He has never had access to the office since then and his efforts to reclaim his position and the office, subsequent to that, have hit a brick wall.

He approached this court, in HC9630/11, for spoliatory relief but was turned down. The judgement in that matter, delivered by MUTEMA J is HH221-11, and, at p3 of it, the court made the following findings:

“Applicant alleges (he) was despoiled of the office as well as his personal belongings lodged therein which he uses for his private life and business. Respondents have offered that applicant is at liberty, at his earliest convenience, to come and collect his personal items. I have no reason to doubt the sincerity of that offer.

However, as regards the office, that is a different kettle of fish.

While applicant alleges spoliation, respondents' papers clearly show that it is him who is the spoliator. He had been away for some 8 months and Saungweme was in lawful and undisturbed possession of that office. He was denied occupation of the office but he locked it to the exclusion of everyone except himself. This, despite the exitant dispute between the parties, amounts on the applicant's part, to self-held.

I did not hear applicant to dispute respondents' version either on paper or in oral submissions, of how he ended up re-occupying the office. He therefore cannot come to court with clean hands. He is the spoliator. To allow him audience would be tantamount to sanctioning unlawfulness.”

He says that if the meeting took place he does not know what transpired as he was unable to attend.

What is even more important is the fact that he was unable to “regularize” his payments made to the architects without approval - meaning that the plaintiff's payments remained unsanctioned.

The plaintiff testified that he paid the architects, on behalf of the defendant, because it was necessary to maintain the integrity and good name of the institution.

He did not have vouchers to show that payment was indeed made through the defendant.

Although he did not have direct and formal authority to effect the payment, he had indirect authority emanating from the fact that the Board had tasked him to raise funds for the project.

It did not specify the source of those funds which then left him at liberty, as the Managing Director at the time, to pay from his pocket. In any event, loans from shareholders (he is a major shareholder) have been given to the institution in the past.

Under cross examination, it became apparent that the plaintiff was not the Managing Director at the time that he made instalment payments of the $50,000 to the architects - Dr Saungweme was. According to the minutes of a Board meeting held on 10 May 2011…, the plaintiff was trying to force his way back in that position. The minutes state, at paragraph 4.2:

“Dr P. Zvandasara

Dr Zvandasara came into the boardroom and advised the Board that he had notified the Board chair person that he was now back at the hospital as the Managing Director. He went on to say that he had taken legal action against some Board members who had accused him of stealing hospital funds.”

That state of affairs was also captured in the minutes of a Shareholders meeting held on 25 May 2011 during which the plaintiff notified the gathering that he was coming back as Managing Director (MD) because some people had accused him of being a thief. At paragraphs 5 and 6, the minutes state:

“He (the plaintiff) went on to declare that whether the members approved or not, he was now the one running the activities of the institution as the MD. He said that he could no longer work with the shareholders and proposed that we proceed with a separation either through him buying the other shareholders out or vice versa.

The shareholders noted, with concern, the developments that had taken place.

They advised Dr Zvandasara that the current recognised MD for the institution is Dr Saungweme; the position remained that Dr Saungweme had been appointed by the Board as the MD with effect from August 2010. This motion was put to the vote and was unanimously endorsed.”

It also became apparent that the defendant had contested the validity of the agreement for architectural services throughout, and, when they raised a fee note for those services, in the sum of $1,071,999=05, on 3 August 2010, about the same time that the plaintiff ceased to become Managing Director (MD), the defendant disputed liability.

It is a matter of record that in HC2893/12 the architects sued the defendant for the amount set out in the fee note, without deducting the $50,000 allegedly paid by the plaintiff, suggesting they did not recognise any payment. That claim was dismissed by this court, per DUBE J, by judgement delivered on 18 February 2015 (HH161-15).

In that matter, the plaintiff was called as a witness by the architects and stated that:

“He paid $50,000 from his own pocket after the defendant had refused to settle the fee note.”

My attention was also drawn to a summons and declaration in HC9444/11…, in which the plaintiff had sued the defendant for payment of the same amount of $50,000 through Mambosasa legal practitioners of Harare. In paragraph 7 of the declaration he had averred;

“The defendant failed, refused and/or neglected to pay the amount due to the architects in its entirety alleging, inter alia, that the plaintiff had no authority to contract with the architects resulting in the plaintiff feeling compelled to repay part of the debt from his personal sources.”

The totality of the evidence shows, clearly, that, at the time that the plaintiff took it upon himself to pay $50,000 of the claim made by the architects he had no authority of the defendant to make that payment and the defendant was already contesting the claim.

The plaintiff was aware of the defendant's position in that regard but decided to take a calculated risk and pay the money all the same. He said that he did so because he could not renege on the promise he had given to the architects that payment would be made.

At the end of evidence for the plaintiff, counsel for the defendant made an application for absolution from the instance on the basis that no evidence had been led upon which the court may find in favour of the plaintiff. He submitted that the evidence has not shown any contract between the parties in terms of which the money was paid. In any case, the claim, as pleaded, is not based on contract.

In addition, the claim is not based on unjust enrichment either because it was not pleaded.

Counsel for the defendant submitted that the plaintiff's counsel could not possibly introduce the claim for unjust enrichment in his opening address when it has not been pleaded....,.

As to whether unjust enrichment was pleaded, counsel for the plaintiff suggested that it should be implied from paragraph 8 of the declaration which I have already quoted above.

Surely, that averment cannot, by any stretch of the imagination, be taken as pleading unjust enrichment.

What counsel is asking me to do is to stretch the imagination to elasticity limit.

The plaintiff merely averred, that, by paying to the architects, the plaintiff became the defendant's creditor and not that the defendant was unjustly enriched by such payment. As to how the debtor-creditor relationship so alleged germinated from those circumstances we are not told.

The essence of any claim is to be found in the pleadings.

It is the function of pleadings to inform the parties of the points of issue between them to enable them to know, in advance, what case they have to meet, to assist the court to define the limits of the action, and to place the issues on record: Matewa v Zimbabwe Electricity Transmission and Distribution Company (ZETDC) HH04-13...,; see also BECK's Theory and Principles of Civil Actions, 5th ed..., and Chifamba v Mutasa & Ors HH16-08.

Where a litigant has pleaded a particular cause of action, the opponent is entitled to rely on that pleading in order to prepare for court and put together evidence which it has in order to meet the claim at the trial.

This is because the pleading exists for the purpose, first and foremost, of informing the other party of the precise nature of the claim they have to meet. The party pleading in that way, and therefore informing the other of the claim, cannot be allowed to twist and turn and infer averments that have not been pleaded. Allowing that would not only embarrass the other party but also prejudice that party.

In an application for absolution, the test to be applied was set out by GUBBAY CJ in United Air Charterers v Jarman 1994 (2) ZLR 341 (S)..., as:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction.

A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court directing its mind reasonably to such evidence, could or might (not should or ought to) find for him; see Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A) at 5D–E; Lourenco v Raja Dry Cleaners & Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) at 158B–E.”

In Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A)..., BEADLE CJ said of that test:

“The test boils down to this: Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff?

What is a reasonable mistake in any case must always be a question of fact, and cannot be defined with any greater exactitude than by saying that it is the sort of mistake a reasonable court might make – a definition which helps not at all.”

See also Quintessence Co-ordinators (Pty) Ltd v Government of the Republic of Transkei 1993 (3) SA T84 (TK) 85B–D; Standard Chartered Finance Zimbabwe Ltd v Georgious & Anor 1998 (2) ZLR 547 (H) 55 2 G–H; Modcraft Engineering (Pvt) Ltd v Tenda Buses (Pvt) Ltd 207-13; Katsande v Welt Huinger Hilfer & Anor HH396-13.

It is true that if the defence is something peculiarly within the knowledge of a defendant and the plaintiff has made out some case to answer, the plaintiff would not be lightly deprived of his remedy without first hearing what the defendant has to say, and such a defendant should not be allowed to shelter behind the procedure of absolution from the instance merely because he is afraid to go into the witness box; Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A)...,; Munhuwa v Mhukahuru Bus Service 1994 (2) ZLR 382 (H)...,.

Right from the commencement of the trial, the plaintiff premised his claim on unjust enrichment. That is what counsel for the plaintiff said in his opening address. He did not, however, see any wisdom in amending the declaration to ground the claim on unjust enrichment, electing, instead, to leave it to the court to infer such a claim.

What remains at this stage, however, is that there is no claim based on unjust enrichment.

Approach re: Contract for the Benefit of a Third Party, Stipulatio Alteri & the Ratification or Adoption of Agreements

The plaintiff is a medical doctor, a gynaecologist, and a professor at the University of Zimbabwe. He boasts that he is a founder member and majority shareholder of the defendant, a maternity institution he is suing for $50,000, being money he says he paid to a creditor of the defendant on its behalf.

In his declaration, the plaintiff averred that sometime in September 2005, while he was the Managing Director of the defendant, he entered into an agreement with Vengesayi Architects (the architects), on behalf of the defendant, in terms of which the architects were to provide the defendant with services for a fee. The architects were contracted to make town planning applications for special consent on the Stand, co-ordinate all project consultations, design, work on drawings and supervise construction work of the proposed additions and alterations to the hospital.

Although the architects drew up the plans, the defendant did not proceed with the construction, but, the agreement he had concluded with the architects resulted in the defendant being indebted to the architects in the sum of US$1,300,000.

As Managing Director, founder, and majority shareholder of the defendant he paid a sum of $50,000 towards settlement of the debt in order to protect the integrity and good name of the defendant.

The $50,000 was paid by him in instalments between 30 May 2011 and 18 July 2011. The plaintiff averred, in paragraph 8 of the declaration, that:

“The money paid to the architects by the plaintiff thus made the latter the defendant's creditor. There is no dispute as to whether the plaintiff made the payment aforesaid.”

The plaintiff then prayed for judgement in the sum of $50,000 together with interest at the prescribed rate and costs of suit on a legal practitioner and client scale.

Having entered appearance to defend, the defendant filed a plea denying liability and stating that the plaintiff was not authorised by its Board of Directors and shareholders to enter into an agreement with the architects and that he had entered into that agreement unlawfully.

It further averred that when the plaintiff paid the sum of $50,000 to the architects, he did so without the authority of the defendant. As he had entered into the agreement without authority, the plaintiff was personally liable to the architects. The plaintiff's claim should therefore be dismissed with punitive costs.

At the pre-trial conference the parties agreed on the issues as:

1. Whether the plaintiff entered into an architectural agreement with the architects without the authority of the defendant's Board of Directors and shareholders.

2. Whether the defendant is liable to the plaintiff in the sum of $50,000 paid to the architects.

Only the plaintiff gave evidence at the trial of this matter, stating that he had been the Managing Director of the defendant since 1998 and he still holds that position.

On 29 January 2010, the defendant's Board had proposed, and agreed, that they should negotiate terms of payment of the architects' fees for work done. The architects had performed work for the defendant and submitted a claim for the payment of their fees.

Prior to that, the architects had drawn plans for the development of the hospital which was called the second phase.

A contract had been signed in 2005 between the hospital and the architects with the former being represented by himself. He made reference to pages 66 to 69 of exhibit 1, being the agreement in question, stating that it was signed by himself in his capacity then as Executive Chairman and countersigned by the defendant's Administrator.

The plaintiff maintained that he had the authority of the Board which he worked with then, to enter into the agreement, and, as such, the agreement was binding on the defendant which however did not pay the fees of the architects even though a demand for payment was initially made in 2006, re-submitted in 2009, and, finally, in 2010.

Prior to making payment on behalf of the defendant, he had been specifically mandated, by the Board, to negotiate with potential investors for the funding of the project. He had brought in Banc ABC which was willing to invest $7.5 million and Mbizvo Group which was willing to invest $15 million into the project. Content with the funding arrangement, the plaintiff said he had incorporated the architects' fees in the funding. He then paid $50,000 to the architects satisfied that he could recoup his money in due course.

The payment was made in order to create a good atmosphere for negotiation with the architects.

The plaintiff referred to letters written by the architects between 30 May 2011 and 18 July 2011…, in which the architects were acknowledging payment of the various sums allegedly made by the defendant to them.

The letters themselves are drafted the same way except for the figure acknowledged. The plaintiff did not explain why no receipt, in the usual manner, was issued. It was suggested to him, under cross-examination, that the letters were manufactured to justify his claim and he did not give a meaningful response.

The plaintiff stated that he had paid the money to the Administrator of the defendant, Mr Makamure, who, alone with the accountant, Mr Tembo, effected payment to the architects.

He pointed out that there was no formal Board meeting to authorize the payment and there was evidence that some Board members did not want payments to be made to the architects while others favoured payment.

There was no formal instruction given to him to effect that payment.

He however sought legal advice from Mr Mabulala, who was also a Board member. Before Mr Mabulala's advice came, in the form of a letter dated 13 June 2011..., the plaintiff went ahead and started paying instalments to the architects, the first one of $3,500 being made on 30 May 2011. When the letter from Mabulala & Motsi legal practitioners finally came it not only endorsed that payment was a fait accompli, it also counselled caution. It reads:

“RE: ARCHTECTS

I refer to your note to me dated 9th June 2011 and the letter from Kantor and Immerman dated 8th June 2011. It seems to me that you have already committed yourself, personally, to paying the architects' fees, and, any opinion from me would be of academic interest. The question which remains is whether or not you can, and did, lawfully commit the hospital as well. I hope the Board and the shareholders are fully informed of these latest developments.”

From the correspondence that had been refereed to Mr Mabulala, it is apparent that the plaintiff had already offered to pay $50,000 to the architects in “tranches” and had already agreed with them that he would sign a Deed of “surety, acknowledgement and undertaking” in respect of the full extent of their claim of $1,303,783 in respect of their fee note dated 3 August 2010…,.

The plaintiff says he then convened a meeting of the Board, in September 2011, intending to regularise what he had done without Board approval.

Unfortunately, on 21 September 2011, he says he was locked out of his office at the hospital and was prevented from going in by armed guards. He has never had access to the office since then and his efforts to reclaim his position and the office, subsequent to that, have hit a brick wall.

He approached this court, in HC9630/11, for spoliatory relief but was turned down. The judgement in that matter, delivered by MUTEMA J is HH221-11, and, at p3 of it, the court made the following findings:

“Applicant alleges (he) was despoiled of the office as well as his personal belongings lodged therein which he uses for his private life and business. Respondents have offered that applicant is at liberty, at his earliest convenience, to come and collect his personal items. I have no reason to doubt the sincerity of that offer.

However, as regards the office, that is a different kettle of fish.

While applicant alleges spoliation, respondents' papers clearly show that it is him who is the spoliator. He had been away for some 8 months and Saungweme was in lawful and undisturbed possession of that office. He was denied occupation of the office but he locked it to the exclusion of everyone except himself. This, despite the exitant dispute between the parties, amounts on the applicant's part, to self-held.

I did not hear applicant to dispute respondents' version either on paper or in oral submissions, of how he ended up re-occupying the office. He therefore cannot come to court with clean hands. He is the spoliator. To allow him audience would be tantamount to sanctioning unlawfulness.”

He says that if the meeting took place he does not know what transpired as he was unable to attend.

What is even more important is the fact that he was unable to “regularize” his payments made to the architects without approval - meaning that the plaintiff's payments remained unsanctioned.

The plaintiff testified that he paid the architects, on behalf of the defendant, because it was necessary to maintain the integrity and good name of the institution.

He did not have vouchers to show that payment was indeed made through the defendant.

Although he did not have direct and formal authority to effect the payment, he had indirect authority emanating from the fact that the Board had tasked him to raise funds for the project.

It did not specify the source of those funds which then left him at liberty, as the Managing Director at the time, to pay from his pocket. In any event, loans from shareholders (he is a major shareholder) have been given to the institution in the past.

Under cross examination, it became apparent that the plaintiff was not the Managing Director at the time that he made instalment payments of the $50,000 to the architects - Dr Saungweme was. According to the minutes of a Board meeting held on 10 May 2011…, the plaintiff was trying to force his way back in that position. The minutes state, at paragraph 4.2:

“Dr P. Zvandasara

Dr Zvandasara came into the boardroom and advised the Board that he had notified the Board chair person that he was now back at the hospital as the Managing Director. He went on to say that he had taken legal action against some Board members who had accused him of stealing hospital funds.”

That state of affairs was also captured in the minutes of a Shareholders meeting held on 25 May 2011 during which the plaintiff notified the gathering that he was coming back as Managing Director (MD) because some people had accused him of being a thief. At paragraphs 5 and 6, the minutes state:

“He (the plaintiff) went on to declare that whether the members approved or not, he was now the one running the activities of the institution as the MD. He said that he could no longer work with the shareholders and proposed that we proceed with a separation either through him buying the other shareholders out or vice versa.

The shareholders noted, with concern, the developments that had taken place.

They advised Dr Zvandasara that the current recognised MD for the institution is Dr Saungweme; the position remained that Dr Saungweme had been appointed by the Board as the MD with effect from August 2010. This motion was put to the vote and was unanimously endorsed.”

It also became apparent that the defendant had contested the validity of the agreement for architectural services throughout, and, when they raised a fee note for those services, in the sum of $1,071,999=05, on 3 August 2010, about the same time that the plaintiff ceased to become Managing Director (MD), the defendant disputed liability.

It is a matter of record that in HC2893/12 the architects sued the defendant for the amount set out in the fee note, without deducting the $50,000 allegedly paid by the plaintiff, suggesting they did not recognise any payment. That claim was dismissed by this court, per DUBE J, by judgement delivered on 18 February 2015 (HH161-15).

In that matter, the plaintiff was called as a witness by the architects and stated that:

“He paid $50,000 from his own pocket after the defendant had refused to settle the fee note.”

My attention was also drawn to a summons and declaration in HC9444/11…, in which the plaintiff had sued the defendant for payment of the same amount of $50,000 through Mambosasa legal practitioners of Harare. In paragraph 7 of the declaration he had averred;

“The defendant failed, refused and/or neglected to pay the amount due to the architects in its entirety alleging, inter alia, that the plaintiff had no authority to contract with the architects resulting in the plaintiff feeling compelled to repay part of the debt from his personal sources.”

The totality of the evidence shows, clearly, that, at the time that the plaintiff took it upon himself to pay $50,000 of the claim made by the architects he had no authority of the defendant to make that payment and the defendant was already contesting the claim.

The plaintiff was aware of the defendant's position in that regard but decided to take a calculated risk and pay the money all the same. He said that he did so because he could not renege on the promise he had given to the architects that payment would be made.

At the end of evidence for the plaintiff, counsel for the defendant made an application for absolution from the instance on the basis that no evidence had been led upon which the court may find in favour of the plaintiff. He submitted that the evidence has not shown any contract between the parties in terms of which the money was paid. In any case, the claim, as pleaded, is not based on contract.

In addition, the claim is not based on unjust enrichment either because it was not pleaded.

Counsel for the defendant submitted that the plaintiff's counsel could not possibly introduce the claim for unjust enrichment in his opening address when it has not been pleaded.

In any event, according to the plaintiff's evidence, he paid the $50,000 without authority in order to create a conducive atmosphere for dialogue between the parties. He did not achieve that objective and there is no evidence that the defendant was enriched in any way....,.

Even if it had been pleaded, I am not satisfied that the plaintiff has made a case based on unjust enrichment.

The requirements for such a claim were set out by BARTLETT J in Industrial Equity v Walker 1996 (1) ZLR 269 (H) 298..., where he said:

“I am of the respectful view that the principal requisites for a general action on enrichment can be regarded as aptly summarised by WOUTER De VOS in Verry King saanspreeklikheid in die Suid Africk aansc Reg (1958) as stated by SCHOLTENS in 1996 Annual Survey of South African Law, 150 at 152 as:

(a) The defendant must be enriched;

(b) The enrichment must be at the expense of another (i.e. the plaintiff must be impoverished and there must be a causal connection between enrichment and impoverishment);

(c) The enrichment must be unjustified;

(d) The case should not come under the scope of one of the classical enrichment actions;

(e) There should be no positive rule of law which refuses the action to the impoverished person.

Obviously these requirements can only be fulfilled if, in any given case, the action is based on a defined set of circumstances.”

What happened in this case is that a shareholder and founder member of the defendant who had been ousted from the position of Managing Director was fighting tooth and nail to force his way back into office; an office which was already occupied by Dr Saungweme.

Proceeding roughshod on all the rights and interests of others, and stating that he did not care whether anyone approved or not, he forcibly took office with no recognisable role to play except, perhaps, to cause alarm and despondency among everyone associated with the institution.

He threatened to sue Board members because they were accusing him of stealing money from the defendant.

In the midst of all this, he claimed to have taken his money, generated from his own medical rooms, and meant for the tuition fees of his children studying out of the country, and paid $50,000 of it to a perceived creditor of the defendant without anyone asking him to and certainly without any authority to do so.

When he did that, he was aware that the defendant was denying liability and was contesting the claim. In fact, as fate would have it, the defendant has successfully defended the architects' claim. It cannot be said, therefore, that it was liable and that the payment, if any, made by the plaintiff was for its benefit.

No benefit whatsoever has been shown.

Unjust Enrichment re: Approach, Colore Officii or Extortion by Colour of Office, Equality and Equity Considerations

The plaintiff is a medical doctor, a gynaecologist, and a professor at the University of Zimbabwe. He boasts that he is a founder member and majority shareholder of the defendant, a maternity institution he is suing for $50,000, being money he says he paid to a creditor of the defendant on its behalf.

In his declaration, the plaintiff averred that sometime in September 2005, while he was the Managing Director of the defendant, he entered into an agreement with Vengesayi Architects (the architects), on behalf of the defendant, in terms of which the architects were to provide the defendant with services for a fee. The architects were contracted to make town planning applications for special consent on the Stand, co-ordinate all project consultations, design, work on drawings and supervise construction work of the proposed additions and alterations to the hospital.

Although the architects drew up the plans, the defendant did not proceed with the construction, but, the agreement he had concluded with the architects resulted in the defendant being indebted to the architects in the sum of US$1,300,000.

As Managing Director, founder, and majority shareholder of the defendant he paid a sum of $50,000 towards settlement of the debt in order to protect the integrity and good name of the defendant.

The $50,000 was paid by him in instalments between 30 May 2011 and 18 July 2011. The plaintiff averred, in paragraph 8 of the declaration, that:

“The money paid to the architects by the plaintiff thus made the latter the defendant's creditor. There is no dispute as to whether the plaintiff made the payment aforesaid.”

The plaintiff then prayed for judgement in the sum of $50,000 together with interest at the prescribed rate and costs of suit on a legal practitioner and client scale.

Having entered appearance to defend, the defendant filed a plea denying liability and stating that the plaintiff was not authorised by its Board of Directors and shareholders to enter into an agreement with the architects and that he had entered into that agreement unlawfully.

It further averred that when the plaintiff paid the sum of $50,000 to the architects, he did so without the authority of the defendant. As he had entered into the agreement without authority, the plaintiff was personally liable to the architects. The plaintiff's claim should therefore be dismissed with punitive costs.

At the pre-trial conference the parties agreed on the issues as:

1. Whether the plaintiff entered into an architectural agreement with the architects without the authority of the defendant's Board of Directors and shareholders.

2. Whether the defendant is liable to the plaintiff in the sum of $50,000 paid to the architects.

Only the plaintiff gave evidence at the trial of this matter, stating that he had been the Managing Director of the defendant since 1998 and he still holds that position.

On 29 January 2010, the defendant's Board had proposed, and agreed, that they should negotiate terms of payment of the architects' fees for work done. The architects had performed work for the defendant and submitted a claim for the payment of their fees.

Prior to that, the architects had drawn plans for the development of the hospital which was called the second phase.

A contract had been signed in 2005 between the hospital and the architects with the former being represented by himself. He made reference to pages 66 to 69 of exhibit 1, being the agreement in question, stating that it was signed by himself in his capacity then as Executive Chairman and countersigned by the defendant's Administrator.

The plaintiff maintained that he had the authority of the Board which he worked with then, to enter into the agreement, and, as such, the agreement was binding on the defendant which however did not pay the fees of the architects even though a demand for payment was initially made in 2006, re-submitted in 2009, and, finally, in 2010.

Prior to making payment on behalf of the defendant, he had been specifically mandated, by the Board, to negotiate with potential investors for the funding of the project. He had brought in Banc ABC which was willing to invest $7.5 million and Mbizvo Group which was willing to invest $15 million into the project. Content with the funding arrangement, the plaintiff said he had incorporated the architects' fees in the funding. He then paid $50,000 to the architects satisfied that he could recoup his money in due course.

The payment was made in order to create a good atmosphere for negotiation with the architects.

The plaintiff referred to letters written by the architects between 30 May 2011 and 18 July 2011…, in which the architects were acknowledging payment of the various sums allegedly made by the defendant to them.

The letters themselves are drafted the same way except for the figure acknowledged. The plaintiff did not explain why no receipt, in the usual manner, was issued. It was suggested to him, under cross-examination, that the letters were manufactured to justify his claim and he did not give a meaningful response.

The plaintiff stated that he had paid the money to the Administrator of the defendant, Mr Makamure, who, alone with the accountant, Mr Tembo, effected payment to the architects.

He pointed out that there was no formal Board meeting to authorize the payment and there was evidence that some Board members did not want payments to be made to the architects while others favoured payment.

There was no formal instruction given to him to effect that payment.

He however sought legal advice from Mr Mabulala, who was also a Board member. Before Mr Mabulala's advice came, in the form of a letter dated 13 June 2011..., the plaintiff went ahead and started paying instalments to the architects, the first one of $3,500 being made on 30 May 2011. When the letter from Mabulala & Motsi legal practitioners finally came it not only endorsed that payment was a fait accompli, it also counselled caution. It reads:

“RE: ARCHTECTS

I refer to your note to me dated 9th June 2011 and the letter from Kantor and Immerman dated 8th June 2011. It seems to me that you have already committed yourself, personally, to paying the architects' fees, and, any opinion from me would be of academic interest. The question which remains is whether or not you can, and did, lawfully commit the hospital as well. I hope the Board and the shareholders are fully informed of these latest developments.”

From the correspondence that had been refereed to Mr Mabulala, it is apparent that the plaintiff had already offered to pay $50,000 to the architects in “tranches” and had already agreed with them that he would sign a Deed of “surety, acknowledgement and undertaking” in respect of the full extent of their claim of $1,303,783 in respect of their fee note dated 3 August 2010…,.

The plaintiff says he then convened a meeting of the Board, in September 2011, intending to regularise what he had done without Board approval.

Unfortunately, on 21 September 2011, he says he was locked out of his office at the hospital and was prevented from going in by armed guards. He has never had access to the office since then and his efforts to reclaim his position and the office, subsequent to that, have hit a brick wall.

He approached this court, in HC9630/11, for spoliatory relief but was turned down. The judgement in that matter, delivered by MUTEMA J is HH221-11, and, at p3 of it, the court made the following findings:

“Applicant alleges (he) was despoiled of the office as well as his personal belongings lodged therein which he uses for his private life and business. Respondents have offered that applicant is at liberty, at his earliest convenience, to come and collect his personal items. I have no reason to doubt the sincerity of that offer.

However, as regards the office, that is a different kettle of fish.

While applicant alleges spoliation, respondents' papers clearly show that it is him who is the spoliator. He had been away for some 8 months and Saungweme was in lawful and undisturbed possession of that office. He was denied occupation of the office but he locked it to the exclusion of everyone except himself. This, despite the exitant dispute between the parties, amounts on the applicant's part, to self-held.

I did not hear applicant to dispute respondents' version either on paper or in oral submissions, of how he ended up re-occupying the office. He therefore cannot come to court with clean hands. He is the spoliator. To allow him audience would be tantamount to sanctioning unlawfulness.”

He says that if the meeting took place he does not know what transpired as he was unable to attend.

What is even more important is the fact that he was unable to “regularize” his payments made to the architects without approval - meaning that the plaintiff's payments remained unsanctioned.

The plaintiff testified that he paid the architects, on behalf of the defendant, because it was necessary to maintain the integrity and good name of the institution.

He did not have vouchers to show that payment was indeed made through the defendant.

Although he did not have direct and formal authority to effect the payment, he had indirect authority emanating from the fact that the Board had tasked him to raise funds for the project.

It did not specify the source of those funds which then left him at liberty, as the Managing Director at the time, to pay from his pocket. In any event, loans from shareholders (he is a major shareholder) have been given to the institution in the past.

Under cross examination, it became apparent that the plaintiff was not the Managing Director at the time that he made instalment payments of the $50,000 to the architects - Dr Saungweme was. According to the minutes of a Board meeting held on 10 May 2011…, the plaintiff was trying to force his way back in that position. The minutes state, at paragraph 4.2:

“Dr P. Zvandasara

Dr Zvandasara came into the boardroom and advised the Board that he had notified the Board chair person that he was now back at the hospital as the Managing Director. He went on to say that he had taken legal action against some Board members who had accused him of stealing hospital funds.”

That state of affairs was also captured in the minutes of a Shareholders meeting held on 25 May 2011 during which the plaintiff notified the gathering that he was coming back as Managing Director (MD) because some people had accused him of being a thief. At paragraphs 5 and 6, the minutes state:

“He (the plaintiff) went on to declare that whether the members approved or not, he was now the one running the activities of the institution as the MD. He said that he could no longer work with the shareholders and proposed that we proceed with a separation either through him buying the other shareholders out or vice versa.

The shareholders noted, with concern, the developments that had taken place.

They advised Dr Zvandasara that the current recognised MD for the institution is Dr Saungweme; the position remained that Dr Saungweme had been appointed by the Board as the MD with effect from August 2010. This motion was put to the vote and was unanimously endorsed.”

It also became apparent that the defendant had contested the validity of the agreement for architectural services throughout, and, when they raised a fee note for those services, in the sum of $1,071,999=05, on 3 August 2010, about the same time that the plaintiff ceased to become Managing Director (MD), the defendant disputed liability.

It is a matter of record that in HC2893/12 the architects sued the defendant for the amount set out in the fee note, without deducting the $50,000 allegedly paid by the plaintiff, suggesting they did not recognise any payment. That claim was dismissed by this court, per DUBE J, by judgement delivered on 18 February 2015 (HH161-15).

In that matter, the plaintiff was called as a witness by the architects and stated that:

“He paid $50,000 from his own pocket after the defendant had refused to settle the fee note.”

My attention was also drawn to a summons and declaration in HC9444/11…, in which the plaintiff had sued the defendant for payment of the same amount of $50,000 through Mambosasa legal practitioners of Harare. In paragraph 7 of the declaration he had averred;

“The defendant failed, refused and/or neglected to pay the amount due to the architects in its entirety alleging, inter alia, that the plaintiff had no authority to contract with the architects resulting in the plaintiff feeling compelled to repay part of the debt from his personal sources.”

The totality of the evidence shows, clearly, that, at the time that the plaintiff took it upon himself to pay $50,000 of the claim made by the architects he had no authority of the defendant to make that payment and the defendant was already contesting the claim.

The plaintiff was aware of the defendant's position in that regard but decided to take a calculated risk and pay the money all the same. He said that he did so because he could not renege on the promise he had given to the architects that payment would be made.

At the end of evidence for the plaintiff, counsel for the defendant made an application for absolution from the instance on the basis that no evidence had been led upon which the court may find in favour of the plaintiff. He submitted that the evidence has not shown any contract between the parties in terms of which the money was paid. In any case, the claim, as pleaded, is not based on contract.

In addition, the claim is not based on unjust enrichment either because it was not pleaded.

Counsel for the defendant submitted that the plaintiff's counsel could not possibly introduce the claim for unjust enrichment in his opening address when it has not been pleaded.

In any event, according to the plaintiff's evidence, he paid the $50,000 without authority in order to create a conducive atmosphere for dialogue between the parties. He did not achieve that objective and there is no evidence that the defendant was enriched in any way....,.

Even if it had been pleaded, I am not satisfied that the plaintiff has made a case based on unjust enrichment.

The requirements for such a claim were set out by BARTLETT J in Industrial Equity v Walker 1996 (1) ZLR 269 (H) 298..., where he said:

“I am of the respectful view that the principal requisites for a general action on enrichment can be regarded as aptly summarised by WOUTER De VOS in Verry King saanspreeklikheid in die Suid Africk aansc Reg (1958) as stated by SCHOLTENS in 1996 Annual Survey of South African Law, 150 at 152 as:

(a) The defendant must be enriched;

(b) The enrichment must be at the expense of another (i.e. the plaintiff must be impoverished and there must be a causal connection between enrichment and impoverishment);

(c) The enrichment must be unjustified;

(d) The case should not come under the scope of one of the classical enrichment actions;

(e) There should be no positive rule of law which refuses the action to the impoverished person.

Obviously these requirements can only be fulfilled if, in any given case, the action is based on a defined set of circumstances.”

What happened in this case is that a shareholder and founder member of the defendant who had been ousted from the position of Managing Director was fighting tooth and nail to force his way back into office; an office which was already occupied by Dr Saungweme.

Proceeding roughshod on all the rights and interests of others, and stating that he did not care whether anyone approved or not, he forcibly took office with no recognisable role to play except, perhaps, to cause alarm and despondency among everyone associated with the institution.

He threatened to sue Board members because they were accusing him of stealing money from the defendant.

In the midst of all this, he claimed to have taken his money, generated from his own medical rooms, and meant for the tuition fees of his children studying out of the country, and paid $50,000 of it to a perceived creditor of the defendant without anyone asking him to and certainly without any authority to do so.

When he did that, he was aware that the defendant was denying liability and was contesting the claim. In fact, as fate would have it, the defendant has successfully defended the architects' claim. It cannot be said, therefore, that it was liable and that the payment, if any, made by the plaintiff was for its benefit. No benefit whatsoever has been shown.

It is remarkable that not a single receipt for the fifteen (15) or so instalments allegedly made to the architects has been produced.

What has been produced in place thereof are dubious letters written by the architects who were woefully conflicted given they were also making a claim against the defendant and the plaintiff was their star witness in that doomed adventure. As to why, if at all payments were made, copies of receipts could not be produced, we can only speculate.

I am not satisfied that the evidence establishes that payment was indeed made by the plaintiff or that the defendant derived any benefit or enrichment from it as to ground a claim for unjust enrichment.

Vindicatory Action or Rei Vindicatio re: Claim of Retention or Lien Pending Compensation and Negotiorum Gestio

Writing about the doctrine of negotiorum gestio, the learned author, R H CHRISTIE, Business Law in Zimbabwe, 2nd ed, Juta & Co Ltd..., stated:

“This doctrine permits any person to step in and act on behalf of another with the intention of benefiting him, unless prohibited by that other.

The gestor who thus steps in assumes the responsibility of completing the task he has begun, which will normally involve carrying on until the return of the absent principal, of accounting to the principal, and of showing a degree of care that will vary according to whether his position was thrust upon him or he intervened officiously.

The principal is liable to reimburse the gestor for all expenses properly incurred in a genuine attempt to benefit the principal, and the gestor has a right of retention over the principal's property until reimbursed.

Not being an agent, a negotiorum gestor does not create legal relationships between the principal and third parties, but, if he properly incurs obligations in his own name he is entitled to be indemnified by the principal.”

Even if a gestor is prohibited from acting on behalf of the other, he may recover his expenses to the extent that the other party has been enriched: Standard Bank Finance Services (Pty) Ltd v Taylam (Pvt) Ltd 1979 (2) SA 383 (C).

Specific Performance re: Approach, Impossibility of Performance and the Exceptio Non Adimpleti Contractus

The law and the courts are not there to protect poor and extremely unreasonable business decisions; decisions made by people knowing fully well they are unwise hoping that the courts will sympathise.

Debt re: Contractual and Judgment Debt iro Approach, Proof of Claim, Execution, Revalorization and Civil Imprisonment

The plaintiff is a medical doctor, a gynaecologist, and a professor at the University of Zimbabwe. He boasts that he is a founder member and majority shareholder of the defendant, a maternity institution he is suing for $50,000, being money he says he paid to a creditor of the defendant on its behalf.

In his declaration, the plaintiff averred that sometime in September 2005, while he was the Managing Director of the defendant, he entered into an agreement with Vengesayi Architects (the architects), on behalf of the defendant, in terms of which the architects were to provide the defendant with services for a fee. The architects were contracted to make town planning applications for special consent on the Stand, co-ordinate all project consultations, design, work on drawings and supervise construction work of the proposed additions and alterations to the hospital.

Although the architects drew up the plans, the defendant did not proceed with the construction, but, the agreement he had concluded with the architects resulted in the defendant being indebted to the architects in the sum of US$1,300,000.

As Managing Director, founder, and majority shareholder of the defendant he paid a sum of $50,000 towards settlement of the debt in order to protect the integrity and good name of the defendant.

The $50,000 was paid by him in instalments between 30 May 2011 and 18 July 2011. The plaintiff averred, in paragraph 8 of the declaration, that:

“The money paid to the architects by the plaintiff thus made the latter the defendant's creditor. There is no dispute as to whether the plaintiff made the payment aforesaid.”

The plaintiff then prayed for judgement in the sum of $50,000 together with interest at the prescribed rate and costs of suit on a legal practitioner and client scale.

Having entered appearance to defend, the defendant filed a plea denying liability and stating that the plaintiff was not authorised by its Board of Directors and shareholders to enter into an agreement with the architects and that he had entered into that agreement unlawfully.

It further averred that when the plaintiff paid the sum of $50,000 to the architects, he did so without the authority of the defendant. As he had entered into the agreement without authority, the plaintiff was personally liable to the architects. The plaintiff's claim should therefore be dismissed with punitive costs.

At the pre-trial conference the parties agreed on the issues as:

1. Whether the plaintiff entered into an architectural agreement with the architects without the authority of the defendant's Board of Directors and shareholders.

2. Whether the defendant is liable to the plaintiff in the sum of $50,000 paid to the architects.

Only the plaintiff gave evidence at the trial of this matter, stating that he had been the Managing Director of the defendant since 1998 and he still holds that position.

On 29 January 2010, the defendant's Board had proposed, and agreed, that they should negotiate terms of payment of the architects' fees for work done. The architects had performed work for the defendant and submitted a claim for the payment of their fees.

Prior to that, the architects had drawn plans for the development of the hospital which was called the second phase.

A contract had been signed in 2005 between the hospital and the architects with the former being represented by himself. He made reference to pages 66 to 69 of exhibit 1, being the agreement in question, stating that it was signed by himself in his capacity then as Executive Chairman and countersigned by the defendant's Administrator.

The plaintiff maintained that he had the authority of the Board which he worked with then, to enter into the agreement, and, as such, the agreement was binding on the defendant which however did not pay the fees of the architects even though a demand for payment was initially made in 2006, re-submitted in 2009, and, finally, in 2010.

Prior to making payment on behalf of the defendant, he had been specifically mandated, by the Board, to negotiate with potential investors for the funding of the project. He had brought in Banc ABC which was willing to invest $7.5 million and Mbizvo Group which was willing to invest $15 million into the project. Content with the funding arrangement, the plaintiff said he had incorporated the architects' fees in the funding. He then paid $50,000 to the architects satisfied that he could recoup his money in due course.

The payment was made in order to create a good atmosphere for negotiation with the architects.

The plaintiff referred to letters written by the architects between 30 May 2011 and 18 July 2011…, in which the architects were acknowledging payment of the various sums allegedly made by the defendant to them.

The letters themselves are drafted the same way except for the figure acknowledged. The plaintiff did not explain why no receipt, in the usual manner, was issued. It was suggested to him, under cross-examination, that the letters were manufactured to justify his claim and he did not give a meaningful response.

The plaintiff stated that he had paid the money to the Administrator of the defendant, Mr Makamure, who, alone with the accountant, Mr Tembo, effected payment to the architects.

He pointed out that there was no formal Board meeting to authorize the payment and there was evidence that some Board members did not want payments to be made to the architects while others favoured payment.

There was no formal instruction given to him to effect that payment.

He however sought legal advice from Mr Mabulala, who was also a Board member. Before Mr Mabulala's advice came, in the form of a letter dated 13 June 2011..., the plaintiff went ahead and started paying instalments to the architects, the first one of $3,500 being made on 30 May 2011. When the letter from Mabulala & Motsi legal practitioners finally came it not only endorsed that payment was a fait accompli, it also counselled caution. It reads:

“RE: ARCHTECTS

I refer to your note to me dated 9th June 2011 and the letter from Kantor and Immerman dated 8th June 2011. It seems to me that you have already committed yourself, personally, to paying the architects' fees, and, any opinion from me would be of academic interest. The question which remains is whether or not you can, and did, lawfully commit the hospital as well. I hope the Board and the shareholders are fully informed of these latest developments.”

From the correspondence that had been refereed to Mr Mabulala, it is apparent that the plaintiff had already offered to pay $50,000 to the architects in “tranches” and had already agreed with them that he would sign a Deed of “surety, acknowledgement and undertaking” in respect of the full extent of their claim of $1,303,783 in respect of their fee note dated 3 August 2010…,.

The plaintiff says he then convened a meeting of the Board, in September 2011, intending to regularise what he had done without Board approval.

Unfortunately, on 21 September 2011, he says he was locked out of his office at the hospital and was prevented from going in by armed guards. He has never had access to the office since then and his efforts to reclaim his position and the office, subsequent to that, have hit a brick wall.

He approached this court, in HC9630/11, for spoliatory relief but was turned down. The judgement in that matter, delivered by MUTEMA J is HH221-11, and, at p3 of it, the court made the following findings:

“Applicant alleges (he) was despoiled of the office as well as his personal belongings lodged therein which he uses for his private life and business. Respondents have offered that applicant is at liberty, at his earliest convenience, to come and collect his personal items. I have no reason to doubt the sincerity of that offer.

However, as regards the office, that is a different kettle of fish.

While applicant alleges spoliation, respondents' papers clearly show that it is him who is the spoliator. He had been away for some 8 months and Saungweme was in lawful and undisturbed possession of that office. He was denied occupation of the office but he locked it to the exclusion of everyone except himself. This, despite the exitant dispute between the parties, amounts on the applicant's part, to self-held.

I did not hear applicant to dispute respondents' version either on paper or in oral submissions, of how he ended up re-occupying the office. He therefore cannot come to court with clean hands. He is the spoliator. To allow him audience would be tantamount to sanctioning unlawfulness.”

He says that if the meeting took place he does not know what transpired as he was unable to attend.

What is even more important is the fact that he was unable to “regularize” his payments made to the architects without approval - meaning that the plaintiff's payments remained unsanctioned.

The plaintiff testified that he paid the architects, on behalf of the defendant, because it was necessary to maintain the integrity and good name of the institution.

He did not have vouchers to show that payment was indeed made through the defendant.

Although he did not have direct and formal authority to effect the payment, he had indirect authority emanating from the fact that the Board had tasked him to raise funds for the project.

It did not specify the source of those funds which then left him at liberty, as the Managing Director at the time, to pay from his pocket. In any event, loans from shareholders (he is a major shareholder) have been given to the institution in the past.

Under cross examination, it became apparent that the plaintiff was not the Managing Director at the time that he made instalment payments of the $50,000 to the architects - Dr Saungweme was. According to the minutes of a Board meeting held on 10 May 2011…, the plaintiff was trying to force his way back in that position. The minutes state, at paragraph 4.2:

“Dr P. Zvandasara

Dr Zvandasara came into the boardroom and advised the Board that he had notified the Board chair person that he was now back at the hospital as the Managing Director. He went on to say that he had taken legal action against some Board members who had accused him of stealing hospital funds.”

That state of affairs was also captured in the minutes of a Shareholders meeting held on 25 May 2011 during which the plaintiff notified the gathering that he was coming back as Managing Director (MD) because some people had accused him of being a thief. At paragraphs 5 and 6, the minutes state:

“He (the plaintiff) went on to declare that whether the members approved or not, he was now the one running the activities of the institution as the MD. He said that he could no longer work with the shareholders and proposed that we proceed with a separation either through him buying the other shareholders out or vice versa.

The shareholders noted, with concern, the developments that had taken place.

They advised Dr Zvandasara that the current recognised MD for the institution is Dr Saungweme; the position remained that Dr Saungweme had been appointed by the Board as the MD with effect from August 2010. This motion was put to the vote and was unanimously endorsed.”

It also became apparent that the defendant had contested the validity of the agreement for architectural services throughout, and, when they raised a fee note for those services, in the sum of $1,071,999=05, on 3 August 2010, about the same time that the plaintiff ceased to become Managing Director (MD), the defendant disputed liability.

It is a matter of record that in HC2893/12 the architects sued the defendant for the amount set out in the fee note, without deducting the $50,000 allegedly paid by the plaintiff, suggesting they did not recognise any payment. That claim was dismissed by this court, per DUBE J, by judgement delivered on 18 February 2015 (HH161-15).

In that matter, the plaintiff was called as a witness by the architects and stated that:

“He paid $50,000 from his own pocket after the defendant had refused to settle the fee note.”

My attention was also drawn to a summons and declaration in HC9444/11…, in which the plaintiff had sued the defendant for payment of the same amount of $50,000 through Mambosasa legal practitioners of Harare. In paragraph 7 of the declaration he had averred;

“The defendant failed, refused and/or neglected to pay the amount due to the architects in its entirety alleging, inter alia, that the plaintiff had no authority to contract with the architects resulting in the plaintiff feeling compelled to repay part of the debt from his personal sources.”

The totality of the evidence shows, clearly, that, at the time that the plaintiff took it upon himself to pay $50,000 of the claim made by the architects he had no authority of the defendant to make that payment and the defendant was already contesting the claim.

The plaintiff was aware of the defendant's position in that regard but decided to take a calculated risk and pay the money all the same. He said that he did so because he could not renege on the promise he had given to the architects that payment would be made.

At the end of evidence for the plaintiff, counsel for the defendant made an application for absolution from the instance on the basis that no evidence had been led upon which the court may find in favour of the plaintiff. He submitted that the evidence has not shown any contract between the parties in terms of which the money was paid. In any case, the claim, as pleaded, is not based on contract.

In addition, the claim is not based on unjust enrichment either because it was not pleaded.

Counsel for the defendant submitted that the plaintiff's counsel could not possibly introduce the claim for unjust enrichment in his opening address when it has not been pleaded.

In any event, according to the plaintiff's evidence, he paid the $50,000 without authority in order to create a conducive atmosphere for dialogue between the parties. He did not achieve that objective and there is no evidence that the defendant was enriched in any way.

Counsel for the plaintiff opposed the application, submitting that the plaintiff has shown, in his evidence, that the defendant was enriched by the payment made to the architects especially as the plans prepared are available and can be used.

No such evidence about the plans was led.

As to whether unjust enrichment was pleaded, counsel for the plaintiff suggested that it should be implied from paragraph 8 of the declaration which I have already quoted above.

Surely, that averment cannot, by any stretch of the imagination, be taken as pleading unjust enrichment.

What counsel is asking me to do is to stretch the imagination to elasticity limit.

The plaintiff merely averred, that, by paying to the architects, the plaintiff became the defendant's creditor and not that the defendant was unjustly enriched by such payment. As to how the debtor-creditor relationship so alleged germinated from those circumstances we are not told.

The essence of any claim is to be found in the pleadings.

It is the function of pleadings to inform the parties of the points of issue between them to enable them to know, in advance, what case they have to meet, to assist the court to define the limits of the action, and to place the issues on record: Matewa v Zimbabwe Electricity Transmission and Distribution Company (ZETDC) HH04-13...,; see also BECK's Theory and Principles of Civil Actions, 5th ed..., and Chifamba v Mutasa & Ors HH16-08.

Where a litigant has pleaded a particular cause of action, the opponent is entitled to rely on that pleading in order to prepare for court and put together evidence which it has in order to meet the claim at the trial.

This is because the pleading exists for the purpose, first and foremost, of informing the other party of the precise nature of the claim they have to meet. The party pleading in that way, and therefore informing the other of the claim, cannot be allowed to twist and turn and infer averments that have not been pleaded. Allowing that would not only embarrass the other party but also prejudice that party.

In an application for absolution, the test to be applied was set out by GUBBAY CJ in United Air Charterers v Jarman 1994 (2) ZLR 341 (S)..., as:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction.

A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court directing its mind reasonably to such evidence, could or might (not should or ought to) find for him; see Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A) at 5D–E; Lourenco v Raja Dry Cleaners & Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) at 158B–E.”

In Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A)..., BEADLE CJ said of that test:

“The test boils down to this: Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff?

What is a reasonable mistake in any case must always be a question of fact, and cannot be defined with any greater exactitude than by saying that it is the sort of mistake a reasonable court might make – a definition which helps not at all.”

See also Quintessence Co-ordinators (Pty) Ltd v Government of the Republic of Transkei 1993 (3) SA T84 (TK) 85B–D; Standard Chartered Finance Zimbabwe Ltd v Georgious & Anor 1998 (2) ZLR 547 (H) 55 2 G–H; Modcraft Engineering (Pvt) Ltd v Tenda Buses (Pvt) Ltd 207-13; Katsande v Welt Huinger Hilfer & Anor HH396-13.

It is true that if the defence is something peculiarly within the knowledge of a defendant and the plaintiff has made out some case to answer, the plaintiff would not be lightly deprived of his remedy without first hearing what the defendant has to say, and such a defendant should not be allowed to shelter behind the procedure of absolution from the instance merely because he is afraid to go into the witness box; Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A)...,; Munhuwa v Mhukahuru Bus Service 1994 (2) ZLR 382 (H)...,.

Right from the commencement of the trial, the plaintiff premised his claim on unjust enrichment. That is what counsel for the plaintiff said in his opening address. He did not, however, see any wisdom in amending the declaration to ground the claim on unjust enrichment, electing, instead, to leave it to the court to infer such a claim.

What remains at this stage, however, is that there is no claim based on unjust enrichment.

Even if it had been pleaded, I am not satisfied that the plaintiff has made a case based on unjust enrichment.

The requirements for such a claim were set out by BARTLETT J in Industrial Equity v Walker 1996 (1) ZLR 269 (H) 298..., where he said:

“I am of the respectful view that the principal requisites for a general action on enrichment can be regarded as aptly summarised by WOUTER De VOS in Verry King saanspreeklikheid in die Suid Africk aansc Reg (1958) as stated by SCHOLTENS in 1996 Annual Survey of South African Law, 150 at 152 as:

(a) The defendant must be enriched;

(b) The enrichment must be at the expense of another (i.e. the plaintiff must be impoverished and there must be a causal connection between enrichment and impoverishment);

(c) The enrichment must be unjustified;

(d) The case should not come under the scope of one of the classical enrichment actions;

(e) There should be no positive rule of law which refuses the action to the impoverished person.

Obviously these requirements can only be fulfilled if, in any given case, the action is based on a defined set of circumstances.”

What happened in this case is that a shareholder and founder member of the defendant who had been ousted from the position of Managing Director was fighting tooth and nail to force his way back into office; an office which was already occupied by Dr Saungweme.

Proceeding roughshod on all the rights and interests of others, and stating that he did not care whether anyone approved or not, he forcibly took office with no recognisable role to play except, perhaps, to cause alarm and despondency among everyone associated with the institution.

He threatened to sue Board members because they were accusing him of stealing money from the defendant.

In the midst of all this, he claimed to have taken his money, generated from his own medical rooms, and meant for the tuition fees of his children studying out of the country, and paid $50,000 of it to a perceived creditor of the defendant without anyone asking him to and certainly without any authority to do so.

When he did that, he was aware that the defendant was denying liability and was contesting the claim. In fact, as fate would have it, the defendant has successfully defended the architects' claim. It cannot be said, therefore, that it was liable and that the payment, if any, made by the plaintiff was for its benefit. No benefit whatsoever has been shown.

It is remarkable that not a single receipt for the fifteen (15) or so instalments allegedly made to the architects has been produced.

What has been produced in place thereof are dubious letters written by the architects who were woefully conflicted given they were also making a claim against the defendant and the plaintiff was their star witness in that doomed adventure. As to why, if at all payments were made, copies of receipts could not be produced, we can only speculate.

I am not satisfied that the evidence establishes that payment was indeed made by the plaintiff or that the defendant derived any benefit or enrichment from it as to ground a claim for unjust enrichment.

I agree with counsel for the defendant that the pleadings, as they stand, do not disclose a cause of action recognisable at law.

The evidence led does not do so either.

Even if we were to assume in favour of the plaintiff that he paid the money to the architects, it is still difficult to find the defendant liable for that payment.

This is because the defendant did not want payment to be made (the plaintiff admitted as such) as it did not hold itself liable. Just how then could a payment made against the will of the defendant be recoverable from it?

In advancing the argument that there can be no earthly basis upon which the defendant could be found liable for the folly of the plaintiff in paying money against the will of the supposed beneficiary, counsel for the defendant referred to a negotiorum gestio under the Law of Contract. He asserted that even that would not aid the plaintiff.

I agree.

Writing about the doctrine of negotiorum gestio, the learned author, R H CHRISTIE, Business Law in Zimbabwe, 2nd ed, Juta & Co Ltd..., stated:

“This doctrine permits any person to step in and act on behalf of another with the intention of benefiting him, unless prohibited by that other.

The gestor who thus steps in assumes the responsibility of completing the task he has begun, which will normally involve carrying on until the return of the absent principal, of accounting to the principal, and of showing a degree of care that will vary according to whether his position was thrust upon him or he intervened officiously.

The principal is liable to reimburse the gestor for all expenses properly incurred in a genuine attempt to benefit the principal, and the gestor has a right of retention over the principal's property until reimbursed.

Not being an agent, a negotiorum gestor does not create legal relationships between the principal and third parties, but, if he properly incurs obligations in his own name he is entitled to be indemnified by the principal.”

Even if a gestor is prohibited from acting on behalf of the other, he may recover his expenses to the extent that the other party has been enriched: Standard Bank Finance Services (Pty) Ltd v Taylam (Pvt) Ltd 1979 (2) SA 383 (C).

Unfortunately for the plaintiff, he does not qualify as a negotiorum gestor.

He was acting in no capacity at all as there was a Managing Director in place, Dr Saungweme, discharging that role. He may be taken to have been specifically prohibited from paying because he was aware that the defendant was denying liability and was contesting the claim. He could not then pay while swimming against the tide and then come back to claim from the very same defendant.

The law and the courts are not there to protect poor and extremely unreasonable business decisions; decisions made by people knowing fully well they are unwise hoping that the courts will sympathise.

The plaintiff simply had no business paying that money if he genuinely believed it was for the account of the defendant. If he did, there is no way any court, applying its mind reasonably, could make a mistake and find in his favour.

I conclude, therefore, that there is merit in the application for absolution from the instance. No evidence has been led upon which a reasonable mistake may be made to give judgment for the plaintiff.

In the result, I make the following order, that;

1. Absolution from the instance is hereby granted.

2. The plaintiff shall bear the defendant's costs.

Debt re: Acknowledgement of Debt iro Assumption of Liability, Negotiorum Gestio, Expromissio & the Concept of Intercessio

The plaintiff is a medical doctor, a gynaecologist, and a professor at the University of Zimbabwe. He boasts that he is a founder member and majority shareholder of the defendant, a maternity institution he is suing for $50,000, being money he says he paid to a creditor of the defendant on its behalf.

In his declaration, the plaintiff averred that sometime in September 2005, while he was the Managing Director of the defendant, he entered into an agreement with Vengesayi Architects (the architects), on behalf of the defendant, in terms of which the architects were to provide the defendant with services for a fee. The architects were contracted to make town planning applications for special consent on the Stand, co-ordinate all project consultations, design, work on drawings and supervise construction work of the proposed additions and alterations to the hospital.

Although the architects drew up the plans, the defendant did not proceed with the construction, but, the agreement he had concluded with the architects resulted in the defendant being indebted to the architects in the sum of US$1,300,000.

As Managing Director, founder, and majority shareholder of the defendant he paid a sum of $50,000 towards settlement of the debt in order to protect the integrity and good name of the defendant.

The $50,000 was paid by him in instalments between 30 May 2011 and 18 July 2011. The plaintiff averred, in paragraph 8 of the declaration, that:

“The money paid to the architects by the plaintiff thus made the latter the defendant's creditor. There is no dispute as to whether the plaintiff made the payment aforesaid.”

The plaintiff then prayed for judgement in the sum of $50,000 together with interest at the prescribed rate and costs of suit on a legal practitioner and client scale.

Having entered appearance to defend, the defendant filed a plea denying liability and stating that the plaintiff was not authorised by its Board of Directors and shareholders to enter into an agreement with the architects and that he had entered into that agreement unlawfully.

It further averred that when the plaintiff paid the sum of $50,000 to the architects, he did so without the authority of the defendant. As he had entered into the agreement without authority, the plaintiff was personally liable to the architects. The plaintiff's claim should therefore be dismissed with punitive costs.

At the pre-trial conference the parties agreed on the issues as:

1. Whether the plaintiff entered into an architectural agreement with the architects without the authority of the defendant's Board of Directors and shareholders.

2. Whether the defendant is liable to the plaintiff in the sum of $50,000 paid to the architects.

Only the plaintiff gave evidence at the trial of this matter, stating that he had been the Managing Director of the defendant since 1998 and he still holds that position.

On 29 January 2010, the defendant's Board had proposed, and agreed, that they should negotiate terms of payment of the architects' fees for work done. The architects had performed work for the defendant and submitted a claim for the payment of their fees.

Prior to that, the architects had drawn plans for the development of the hospital which was called the second phase.

A contract had been signed in 2005 between the hospital and the architects with the former being represented by himself. He made reference to pages 66 to 69 of exhibit 1, being the agreement in question, stating that it was signed by himself in his capacity then as Executive Chairman and countersigned by the defendant's Administrator.

The plaintiff maintained that he had the authority of the Board which he worked with then, to enter into the agreement, and, as such, the agreement was binding on the defendant which however did not pay the fees of the architects even though a demand for payment was initially made in 2006, re-submitted in 2009, and, finally, in 2010.

Prior to making payment on behalf of the defendant, he had been specifically mandated, by the Board, to negotiate with potential investors for the funding of the project. He had brought in Banc ABC which was willing to invest $7.5 million and Mbizvo Group which was willing to invest $15 million into the project. Content with the funding arrangement, the plaintiff said he had incorporated the architects' fees in the funding. He then paid $50,000 to the architects satisfied that he could recoup his money in due course.

The payment was made in order to create a good atmosphere for negotiation with the architects.

The plaintiff referred to letters written by the architects between 30 May 2011 and 18 July 2011…, in which the architects were acknowledging payment of the various sums allegedly made by the defendant to them.

The letters themselves are drafted the same way except for the figure acknowledged. The plaintiff did not explain why no receipt, in the usual manner, was issued. It was suggested to him, under cross-examination, that the letters were manufactured to justify his claim and he did not give a meaningful response.

The plaintiff stated that he had paid the money to the Administrator of the defendant, Mr Makamure, who, alone with the accountant, Mr Tembo, effected payment to the architects.

He pointed out that there was no formal Board meeting to authorize the payment and there was evidence that some Board members did not want payments to be made to the architects while others favoured payment.

There was no formal instruction given to him to effect that payment.

He however sought legal advice from Mr Mabulala, who was also a Board member. Before Mr Mabulala's advice came, in the form of a letter dated 13 June 2011..., the plaintiff went ahead and started paying instalments to the architects, the first one of $3,500 being made on 30 May 2011. When the letter from Mabulala & Motsi legal practitioners finally came it not only endorsed that payment was a fait accompli, it also counselled caution. It reads:

“RE: ARCHTECTS

I refer to your note to me dated 9th June 2011 and the letter from Kantor and Immerman dated 8th June 2011. It seems to me that you have already committed yourself, personally, to paying the architects' fees, and, any opinion from me would be of academic interest. The question which remains is whether or not you can, and did, lawfully commit the hospital as well. I hope the Board and the shareholders are fully informed of these latest developments.”

From the correspondence that had been refereed to Mr Mabulala, it is apparent that the plaintiff had already offered to pay $50,000 to the architects in “tranches” and had already agreed with them that he would sign a Deed of “surety, acknowledgement and undertaking” in respect of the full extent of their claim of $1,303,783 in respect of their fee note dated 3 August 2010…,.

The plaintiff says he then convened a meeting of the Board, in September 2011, intending to regularise what he had done without Board approval.

Unfortunately, on 21 September 2011, he says he was locked out of his office at the hospital and was prevented from going in by armed guards. He has never had access to the office since then and his efforts to reclaim his position and the office, subsequent to that, have hit a brick wall.

He approached this court, in HC9630/11, for spoliatory relief but was turned down. The judgement in that matter, delivered by MUTEMA J is HH221-11, and, at p3 of it, the court made the following findings:

“Applicant alleges (he) was despoiled of the office as well as his personal belongings lodged therein which he uses for his private life and business. Respondents have offered that applicant is at liberty, at his earliest convenience, to come and collect his personal items. I have no reason to doubt the sincerity of that offer.

However, as regards the office, that is a different kettle of fish.

While applicant alleges spoliation, respondents' papers clearly show that it is him who is the spoliator. He had been away for some 8 months and Saungweme was in lawful and undisturbed possession of that office. He was denied occupation of the office but he locked it to the exclusion of everyone except himself. This, despite the exitant dispute between the parties, amounts on the applicant's part, to self-held.

I did not hear applicant to dispute respondents' version either on paper or in oral submissions, of how he ended up re-occupying the office. He therefore cannot come to court with clean hands. He is the spoliator. To allow him audience would be tantamount to sanctioning unlawfulness.”

He says that if the meeting took place he does not know what transpired as he was unable to attend.

What is even more important is the fact that he was unable to “regularize” his payments made to the architects without approval - meaning that the plaintiff's payments remained unsanctioned.

The plaintiff testified that he paid the architects, on behalf of the defendant, because it was necessary to maintain the integrity and good name of the institution.

He did not have vouchers to show that payment was indeed made through the defendant.

Although he did not have direct and formal authority to effect the payment, he had indirect authority emanating from the fact that the Board had tasked him to raise funds for the project.

It did not specify the source of those funds which then left him at liberty, as the Managing Director at the time, to pay from his pocket. In any event, loans from shareholders (he is a major shareholder) have been given to the institution in the past.

Under cross examination, it became apparent that the plaintiff was not the Managing Director at the time that he made instalment payments of the $50,000 to the architects - Dr Saungweme was. According to the minutes of a Board meeting held on 10 May 2011…, the plaintiff was trying to force his way back in that position. The minutes state, at paragraph 4.2:

“Dr P. Zvandasara

Dr Zvandasara came into the boardroom and advised the Board that he had notified the Board chair person that he was now back at the hospital as the Managing Director. He went on to say that he had taken legal action against some Board members who had accused him of stealing hospital funds.”

That state of affairs was also captured in the minutes of a Shareholders meeting held on 25 May 2011 during which the plaintiff notified the gathering that he was coming back as Managing Director (MD) because some people had accused him of being a thief. At paragraphs 5 and 6, the minutes state:

“He (the plaintiff) went on to declare that whether the members approved or not, he was now the one running the activities of the institution as the MD. He said that he could no longer work with the shareholders and proposed that we proceed with a separation either through him buying the other shareholders out or vice versa.

The shareholders noted, with concern, the developments that had taken place.

They advised Dr Zvandasara that the current recognised MD for the institution is Dr Saungweme; the position remained that Dr Saungweme had been appointed by the Board as the MD with effect from August 2010. This motion was put to the vote and was unanimously endorsed.”

It also became apparent that the defendant had contested the validity of the agreement for architectural services throughout, and, when they raised a fee note for those services, in the sum of $1,071,999=05, on 3 August 2010, about the same time that the plaintiff ceased to become Managing Director (MD), the defendant disputed liability.

It is a matter of record that in HC2893/12 the architects sued the defendant for the amount set out in the fee note, without deducting the $50,000 allegedly paid by the plaintiff, suggesting they did not recognise any payment. That claim was dismissed by this court, per DUBE J, by judgement delivered on 18 February 2015 (HH161-15).

In that matter, the plaintiff was called as a witness by the architects and stated that:

“He paid $50,000 from his own pocket after the defendant had refused to settle the fee note.”

My attention was also drawn to a summons and declaration in HC9444/11…, in which the plaintiff had sued the defendant for payment of the same amount of $50,000 through Mambosasa legal practitioners of Harare. In paragraph 7 of the declaration he had averred;

“The defendant failed, refused and/or neglected to pay the amount due to the architects in its entirety alleging, inter alia, that the plaintiff had no authority to contract with the architects resulting in the plaintiff feeling compelled to repay part of the debt from his personal sources.”

The totality of the evidence shows, clearly, that, at the time that the plaintiff took it upon himself to pay $50,000 of the claim made by the architects he had no authority of the defendant to make that payment and the defendant was already contesting the claim.

The plaintiff was aware of the defendant's position in that regard but decided to take a calculated risk and pay the money all the same. He said that he did so because he could not renege on the promise he had given to the architects that payment would be made.

At the end of evidence for the plaintiff, counsel for the defendant made an application for absolution from the instance on the basis that no evidence had been led upon which the court may find in favour of the plaintiff. He submitted that the evidence has not shown any contract between the parties in terms of which the money was paid. In any case, the claim, as pleaded, is not based on contract.

In addition, the claim is not based on unjust enrichment either because it was not pleaded.

Counsel for the defendant submitted that the plaintiff's counsel could not possibly introduce the claim for unjust enrichment in his opening address when it has not been pleaded.

In any event, according to the plaintiff's evidence, he paid the $50,000 without authority in order to create a conducive atmosphere for dialogue between the parties. He did not achieve that objective and there is no evidence that the defendant was enriched in any way.

Counsel for the plaintiff opposed the application, submitting that the plaintiff has shown, in his evidence, that the defendant was enriched by the payment made to the architects especially as the plans prepared are available and can be used.

No such evidence about the plans was led.

As to whether unjust enrichment was pleaded, counsel for the plaintiff suggested that it should be implied from paragraph 8 of the declaration which I have already quoted above.

Surely, that averment cannot, by any stretch of the imagination, be taken as pleading unjust enrichment.

What counsel is asking me to do is to stretch the imagination to elasticity limit.

The plaintiff merely averred, that, by paying to the architects, the plaintiff became the defendant's creditor and not that the defendant was unjustly enriched by such payment. As to how the debtor-creditor relationship so alleged germinated from those circumstances we are not told.

The essence of any claim is to be found in the pleadings.

It is the function of pleadings to inform the parties of the points of issue between them to enable them to know, in advance, what case they have to meet, to assist the court to define the limits of the action, and to place the issues on record: Matewa v Zimbabwe Electricity Transmission and Distribution Company (ZETDC) HH04-13...,; see also BECK's Theory and Principles of Civil Actions, 5th ed..., and Chifamba v Mutasa & Ors HH16-08.

Where a litigant has pleaded a particular cause of action, the opponent is entitled to rely on that pleading in order to prepare for court and put together evidence which it has in order to meet the claim at the trial.

This is because the pleading exists for the purpose, first and foremost, of informing the other party of the precise nature of the claim they have to meet. The party pleading in that way, and therefore informing the other of the claim, cannot be allowed to twist and turn and infer averments that have not been pleaded. Allowing that would not only embarrass the other party but also prejudice that party.

In an application for absolution, the test to be applied was set out by GUBBAY CJ in United Air Charterers v Jarman 1994 (2) ZLR 341 (S)..., as:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction.

A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court directing its mind reasonably to such evidence, could or might (not should or ought to) find for him; see Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A) at 5D–E; Lourenco v Raja Dry Cleaners & Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) at 158B–E.”

In Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A)..., BEADLE CJ said of that test:

“The test boils down to this: Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff?

What is a reasonable mistake in any case must always be a question of fact, and cannot be defined with any greater exactitude than by saying that it is the sort of mistake a reasonable court might make – a definition which helps not at all.”

See also Quintessence Co-ordinators (Pty) Ltd v Government of the Republic of Transkei 1993 (3) SA T84 (TK) 85B–D; Standard Chartered Finance Zimbabwe Ltd v Georgious & Anor 1998 (2) ZLR 547 (H) 55 2 G–H; Modcraft Engineering (Pvt) Ltd v Tenda Buses (Pvt) Ltd 207-13; Katsande v Welt Huinger Hilfer & Anor HH396-13.

It is true that if the defence is something peculiarly within the knowledge of a defendant and the plaintiff has made out some case to answer, the plaintiff would not be lightly deprived of his remedy without first hearing what the defendant has to say, and such a defendant should not be allowed to shelter behind the procedure of absolution from the instance merely because he is afraid to go into the witness box; Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A)...,; Munhuwa v Mhukahuru Bus Service 1994 (2) ZLR 382 (H)...,.

Right from the commencement of the trial, the plaintiff premised his claim on unjust enrichment. That is what counsel for the plaintiff said in his opening address. He did not, however, see any wisdom in amending the declaration to ground the claim on unjust enrichment, electing, instead, to leave it to the court to infer such a claim.

What remains at this stage, however, is that there is no claim based on unjust enrichment.

Even if it had been pleaded, I am not satisfied that the plaintiff has made a case based on unjust enrichment.

The requirements for such a claim were set out by BARTLETT J in Industrial Equity v Walker 1996 (1) ZLR 269 (H) 298..., where he said:

“I am of the respectful view that the principal requisites for a general action on enrichment can be regarded as aptly summarised by WOUTER De VOS in Verry King saanspreeklikheid in die Suid Africk aansc Reg (1958) as stated by SCHOLTENS in 1996 Annual Survey of South African Law, 150 at 152 as:

(a) The defendant must be enriched;

(b) The enrichment must be at the expense of another (i.e. the plaintiff must be impoverished and there must be a causal connection between enrichment and impoverishment);

(c) The enrichment must be unjustified;

(d) The case should not come under the scope of one of the classical enrichment actions;

(e) There should be no positive rule of law which refuses the action to the impoverished person.

Obviously these requirements can only be fulfilled if, in any given case, the action is based on a defined set of circumstances.”

What happened in this case is that a shareholder and founder member of the defendant who had been ousted from the position of Managing Director was fighting tooth and nail to force his way back into office; an office which was already occupied by Dr Saungweme.

Proceeding roughshod on all the rights and interests of others, and stating that he did not care whether anyone approved or not, he forcibly took office with no recognisable role to play except, perhaps, to cause alarm and despondency among everyone associated with the institution.

He threatened to sue Board members because they were accusing him of stealing money from the defendant.

In the midst of all this, he claimed to have taken his money, generated from his own medical rooms, and meant for the tuition fees of his children studying out of the country, and paid $50,000 of it to a perceived creditor of the defendant without anyone asking him to and certainly without any authority to do so.

When he did that, he was aware that the defendant was denying liability and was contesting the claim. In fact, as fate would have it, the defendant has successfully defended the architects' claim. It cannot be said, therefore, that it was liable and that the payment, if any, made by the plaintiff was for its benefit. No benefit whatsoever has been shown.

It is remarkable that not a single receipt for the fifteen (15) or so instalments allegedly made to the architects has been produced.

What has been produced in place thereof are dubious letters written by the architects who were woefully conflicted given they were also making a claim against the defendant and the plaintiff was their star witness in that doomed adventure. As to why, if at all payments were made, copies of receipts could not be produced, we can only speculate.

I am not satisfied that the evidence establishes that payment was indeed made by the plaintiff or that the defendant derived any benefit or enrichment from it as to ground a claim for unjust enrichment.

I agree with counsel for the defendant that the pleadings, as they stand, do not disclose a cause of action recognisable at law.

The evidence led does not do so either.

Even if we were to assume in favour of the plaintiff that he paid the money to the architects, it is still difficult to find the defendant liable for that payment.

This is because the defendant did not want payment to be made (the plaintiff admitted as such) as it did not hold itself liable. Just how then could a payment made against the will of the defendant be recoverable from it?

In advancing the argument that there can be no earthly basis upon which the defendant could be found liable for the folly of the plaintiff in paying money against the will of the supposed beneficiary, counsel for the defendant referred to a negotiorum gestio under the Law of Contract. He asserted that even that would not aid the plaintiff.

I agree.

Writing about the doctrine of negotiorum gestio, the learned author, R H CHRISTIE, Business Law in Zimbabwe, 2nd ed, Juta & Co Ltd..., stated:

“This doctrine permits any person to step in and act on behalf of another with the intention of benefiting him, unless prohibited by that other.

The gestor who thus steps in assumes the responsibility of completing the task he has begun, which will normally involve carrying on until the return of the absent principal, of accounting to the principal, and of showing a degree of care that will vary according to whether his position was thrust upon him or he intervened officiously.

The principal is liable to reimburse the gestor for all expenses properly incurred in a genuine attempt to benefit the principal, and the gestor has a right of retention over the principal's property until reimbursed.

Not being an agent, a negotiorum gestor does not create legal relationships between the principal and third parties, but, if he properly incurs obligations in his own name he is entitled to be indemnified by the principal.”

Even if a gestor is prohibited from acting on behalf of the other, he may recover his expenses to the extent that the other party has been enriched: Standard Bank Finance Services (Pty) Ltd v Taylam (Pvt) Ltd 1979 (2) SA 383 (C).

Unfortunately for the plaintiff, he does not qualify as a negotiorum gestor.

He was acting in no capacity at all as there was a Managing Director in place, Dr Saungweme, discharging that role. He may be taken to have been specifically prohibited from paying because he was aware that the defendant was denying liability and was contesting the claim. He could not then pay while swimming against the tide and then come back to claim from the very same defendant.

The law and the courts are not there to protect poor and extremely unreasonable business decisions; decisions made by people knowing fully well they are unwise hoping that the courts will sympathise.

The plaintiff simply had no business paying that money if he genuinely believed it was for the account of the defendant. If he did, there is no way any court, applying its mind reasonably, could make a mistake and find in his favour.

I conclude, therefore, that there is merit in the application for absolution from the instance. No evidence has been led upon which a reasonable mistake may be made to give judgment for the plaintiff.

In the result, I make the following order, that;

1. Absolution from the instance is hereby granted.

2. The plaintiff shall bear the defendant's costs.

Agency Law re: Acting For Another iro Power of Attorney, Resolutions, Proxy, Negotiorum Gestio, Conduct & Derivative Action

The plaintiff is a medical doctor, a gynaecologist, and a professor at the University of Zimbabwe. He boasts that he is a founder member and majority shareholder of the defendant, a maternity institution he is suing for $50,000, being money he says he paid to a creditor of the defendant on its behalf.

In his declaration, the plaintiff averred that sometime in September 2005, while he was the Managing Director of the defendant, he entered into an agreement with Vengesayi Architects (the architects), on behalf of the defendant, in terms of which the architects were to provide the defendant with services for a fee. The architects were contracted to make town planning applications for special consent on the Stand, co-ordinate all project consultations, design, work on drawings and supervise construction work of the proposed additions and alterations to the hospital.

Although the architects drew up the plans, the defendant did not proceed with the construction, but, the agreement he had concluded with the architects resulted in the defendant being indebted to the architects in the sum of US$1,300,000.

As Managing Director, founder, and majority shareholder of the defendant he paid a sum of $50,000 towards settlement of the debt in order to protect the integrity and good name of the defendant.

The $50,000 was paid by him in instalments between 30 May 2011 and 18 July 2011. The plaintiff averred, in paragraph 8 of the declaration, that:

“The money paid to the architects by the plaintiff thus made the latter the defendant's creditor. There is no dispute as to whether the plaintiff made the payment aforesaid.”

The plaintiff then prayed for judgement in the sum of $50,000 together with interest at the prescribed rate and costs of suit on a legal practitioner and client scale.

Having entered appearance to defend, the defendant filed a plea denying liability and stating that the plaintiff was not authorised by its Board of Directors and shareholders to enter into an agreement with the architects and that he had entered into that agreement unlawfully.

It further averred that when the plaintiff paid the sum of $50,000 to the architects, he did so without the authority of the defendant. As he had entered into the agreement without authority, the plaintiff was personally liable to the architects. The plaintiff's claim should therefore be dismissed with punitive costs.

At the pre-trial conference the parties agreed on the issues as:

1. Whether the plaintiff entered into an architectural agreement with the architects without the authority of the defendant's Board of Directors and shareholders.

2. Whether the defendant is liable to the plaintiff in the sum of $50,000 paid to the architects.

Only the plaintiff gave evidence at the trial of this matter, stating that he had been the Managing Director of the defendant since 1998 and he still holds that position.

On 29 January 2010, the defendant's Board had proposed, and agreed, that they should negotiate terms of payment of the architects' fees for work done. The architects had performed work for the defendant and submitted a claim for the payment of their fees.

Prior to that, the architects had drawn plans for the development of the hospital which was called the second phase.

A contract had been signed in 2005 between the hospital and the architects with the former being represented by himself. He made reference to pages 66 to 69 of exhibit 1, being the agreement in question, stating that it was signed by himself in his capacity then as Executive Chairman and countersigned by the defendant's Administrator.

The plaintiff maintained that he had the authority of the Board which he worked with then, to enter into the agreement, and, as such, the agreement was binding on the defendant which however did not pay the fees of the architects even though a demand for payment was initially made in 2006, re-submitted in 2009, and, finally, in 2010.

Prior to making payment on behalf of the defendant, he had been specifically mandated, by the Board, to negotiate with potential investors for the funding of the project. He had brought in Banc ABC which was willing to invest $7.5 million and Mbizvo Group which was willing to invest $15 million into the project. Content with the funding arrangement, the plaintiff said he had incorporated the architects' fees in the funding. He then paid $50,000 to the architects satisfied that he could recoup his money in due course.

The payment was made in order to create a good atmosphere for negotiation with the architects.

The plaintiff referred to letters written by the architects between 30 May 2011 and 18 July 2011…, in which the architects were acknowledging payment of the various sums allegedly made by the defendant to them.

The letters themselves are drafted the same way except for the figure acknowledged. The plaintiff did not explain why no receipt, in the usual manner, was issued. It was suggested to him, under cross-examination, that the letters were manufactured to justify his claim and he did not give a meaningful response.

The plaintiff stated that he had paid the money to the Administrator of the defendant, Mr Makamure, who, alone with the accountant, Mr Tembo, effected payment to the architects.

He pointed out that there was no formal Board meeting to authorize the payment and there was evidence that some Board members did not want payments to be made to the architects while others favoured payment.

There was no formal instruction given to him to effect that payment.

He however sought legal advice from Mr Mabulala, who was also a Board member. Before Mr Mabulala's advice came, in the form of a letter dated 13 June 2011..., the plaintiff went ahead and started paying instalments to the architects, the first one of $3,500 being made on 30 May 2011. When the letter from Mabulala & Motsi legal practitioners finally came it not only endorsed that payment was a fait accompli, it also counselled caution. It reads:

“RE: ARCHTECTS

I refer to your note to me dated 9th June 2011 and the letter from Kantor and Immerman dated 8th June 2011. It seems to me that you have already committed yourself, personally, to paying the architects' fees, and, any opinion from me would be of academic interest. The question which remains is whether or not you can, and did, lawfully commit the hospital as well. I hope the Board and the shareholders are fully informed of these latest developments.”

From the correspondence that had been refereed to Mr Mabulala, it is apparent that the plaintiff had already offered to pay $50,000 to the architects in “tranches” and had already agreed with them that he would sign a Deed of “surety, acknowledgement and undertaking” in respect of the full extent of their claim of $1,303,783 in respect of their fee note dated 3 August 2010…,.

The plaintiff says he then convened a meeting of the Board, in September 2011, intending to regularise what he had done without Board approval.

Unfortunately, on 21 September 2011, he says he was locked out of his office at the hospital and was prevented from going in by armed guards. He has never had access to the office since then and his efforts to reclaim his position and the office, subsequent to that, have hit a brick wall.

He approached this court, in HC9630/11, for spoliatory relief but was turned down. The judgement in that matter, delivered by MUTEMA J is HH221-11, and, at p3 of it, the court made the following findings:

“Applicant alleges (he) was despoiled of the office as well as his personal belongings lodged therein which he uses for his private life and business. Respondents have offered that applicant is at liberty, at his earliest convenience, to come and collect his personal items. I have no reason to doubt the sincerity of that offer.

However, as regards the office, that is a different kettle of fish.

While applicant alleges spoliation, respondents' papers clearly show that it is him who is the spoliator. He had been away for some 8 months and Saungweme was in lawful and undisturbed possession of that office. He was denied occupation of the office but he locked it to the exclusion of everyone except himself. This, despite the exitant dispute between the parties, amounts on the applicant's part, to self-held.

I did not hear applicant to dispute respondents' version either on paper or in oral submissions, of how he ended up re-occupying the office. He therefore cannot come to court with clean hands. He is the spoliator. To allow him audience would be tantamount to sanctioning unlawfulness.”

He says that if the meeting took place he does not know what transpired as he was unable to attend.

What is even more important is the fact that he was unable to “regularize” his payments made to the architects without approval - meaning that the plaintiff's payments remained unsanctioned.

The plaintiff testified that he paid the architects, on behalf of the defendant, because it was necessary to maintain the integrity and good name of the institution.

He did not have vouchers to show that payment was indeed made through the defendant.

Although he did not have direct and formal authority to effect the payment, he had indirect authority emanating from the fact that the Board had tasked him to raise funds for the project.

It did not specify the source of those funds which then left him at liberty, as the Managing Director at the time, to pay from his pocket. In any event, loans from shareholders (he is a major shareholder) have been given to the institution in the past.

Under cross examination, it became apparent that the plaintiff was not the Managing Director at the time that he made instalment payments of the $50,000 to the architects - Dr Saungweme was. According to the minutes of a Board meeting held on 10 May 2011…, the plaintiff was trying to force his way back in that position. The minutes state, at paragraph 4.2:

“Dr P. Zvandasara

Dr Zvandasara came into the boardroom and advised the Board that he had notified the Board chair person that he was now back at the hospital as the Managing Director. He went on to say that he had taken legal action against some Board members who had accused him of stealing hospital funds.”

That state of affairs was also captured in the minutes of a Shareholders meeting held on 25 May 2011 during which the plaintiff notified the gathering that he was coming back as Managing Director (MD) because some people had accused him of being a thief. At paragraphs 5 and 6, the minutes state:

“He (the plaintiff) went on to declare that whether the members approved or not, he was now the one running the activities of the institution as the MD. He said that he could no longer work with the shareholders and proposed that we proceed with a separation either through him buying the other shareholders out or vice versa.

The shareholders noted, with concern, the developments that had taken place.

They advised Dr Zvandasara that the current recognised MD for the institution is Dr Saungweme; the position remained that Dr Saungweme had been appointed by the Board as the MD with effect from August 2010. This motion was put to the vote and was unanimously endorsed.”

It also became apparent that the defendant had contested the validity of the agreement for architectural services throughout, and, when they raised a fee note for those services, in the sum of $1,071,999=05, on 3 August 2010, about the same time that the plaintiff ceased to become Managing Director (MD), the defendant disputed liability.

It is a matter of record that in HC2893/12 the architects sued the defendant for the amount set out in the fee note, without deducting the $50,000 allegedly paid by the plaintiff, suggesting they did not recognise any payment. That claim was dismissed by this court, per DUBE J, by judgement delivered on 18 February 2015 (HH161-15).

In that matter, the plaintiff was called as a witness by the architects and stated that:

“He paid $50,000 from his own pocket after the defendant had refused to settle the fee note.”

My attention was also drawn to a summons and declaration in HC9444/11…, in which the plaintiff had sued the defendant for payment of the same amount of $50,000 through Mambosasa legal practitioners of Harare. In paragraph 7 of the declaration he had averred;

“The defendant failed, refused and/or neglected to pay the amount due to the architects in its entirety alleging, inter alia, that the plaintiff had no authority to contract with the architects resulting in the plaintiff feeling compelled to repay part of the debt from his personal sources.”

The totality of the evidence shows, clearly, that, at the time that the plaintiff took it upon himself to pay $50,000 of the claim made by the architects he had no authority of the defendant to make that payment and the defendant was already contesting the claim.

The plaintiff was aware of the defendant's position in that regard but decided to take a calculated risk and pay the money all the same. He said that he did so because he could not renege on the promise he had given to the architects that payment would be made.

At the end of evidence for the plaintiff, counsel for the defendant made an application for absolution from the instance on the basis that no evidence had been led upon which the court may find in favour of the plaintiff. He submitted that the evidence has not shown any contract between the parties in terms of which the money was paid. In any case, the claim, as pleaded, is not based on contract.

In addition, the claim is not based on unjust enrichment either because it was not pleaded.

Counsel for the defendant submitted that the plaintiff's counsel could not possibly introduce the claim for unjust enrichment in his opening address when it has not been pleaded.

In any event, according to the plaintiff's evidence, he paid the $50,000 without authority in order to create a conducive atmosphere for dialogue between the parties. He did not achieve that objective and there is no evidence that the defendant was enriched in any way.

Counsel for the plaintiff opposed the application, submitting that the plaintiff has shown, in his evidence, that the defendant was enriched by the payment made to the architects especially as the plans prepared are available and can be used.

No such evidence about the plans was led.

As to whether unjust enrichment was pleaded, counsel for the plaintiff suggested that it should be implied from paragraph 8 of the declaration which I have already quoted above.

Surely, that averment cannot, by any stretch of the imagination, be taken as pleading unjust enrichment.

What counsel is asking me to do is to stretch the imagination to elasticity limit.

The plaintiff merely averred, that, by paying to the architects, the plaintiff became the defendant's creditor and not that the defendant was unjustly enriched by such payment. As to how the debtor-creditor relationship so alleged germinated from those circumstances we are not told.

The essence of any claim is to be found in the pleadings.

It is the function of pleadings to inform the parties of the points of issue between them to enable them to know, in advance, what case they have to meet, to assist the court to define the limits of the action, and to place the issues on record: Matewa v Zimbabwe Electricity Transmission and Distribution Company (ZETDC) HH04-13...,; see also BECK's Theory and Principles of Civil Actions, 5th ed..., and Chifamba v Mutasa & Ors HH16-08.

Where a litigant has pleaded a particular cause of action, the opponent is entitled to rely on that pleading in order to prepare for court and put together evidence which it has in order to meet the claim at the trial.

This is because the pleading exists for the purpose, first and foremost, of informing the other party of the precise nature of the claim they have to meet. The party pleading in that way, and therefore informing the other of the claim, cannot be allowed to twist and turn and infer averments that have not been pleaded. Allowing that would not only embarrass the other party but also prejudice that party.

In an application for absolution, the test to be applied was set out by GUBBAY CJ in United Air Charterers v Jarman 1994 (2) ZLR 341 (S)..., as:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction.

A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court directing its mind reasonably to such evidence, could or might (not should or ought to) find for him; see Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A) at 5D–E; Lourenco v Raja Dry Cleaners & Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) at 158B–E.”

In Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A)..., BEADLE CJ said of that test:

“The test boils down to this: Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff?

What is a reasonable mistake in any case must always be a question of fact, and cannot be defined with any greater exactitude than by saying that it is the sort of mistake a reasonable court might make – a definition which helps not at all.”

See also Quintessence Co-ordinators (Pty) Ltd v Government of the Republic of Transkei 1993 (3) SA T84 (TK) 85B–D; Standard Chartered Finance Zimbabwe Ltd v Georgious & Anor 1998 (2) ZLR 547 (H) 55 2 G–H; Modcraft Engineering (Pvt) Ltd v Tenda Buses (Pvt) Ltd 207-13; Katsande v Welt Huinger Hilfer & Anor HH396-13.

It is true that if the defence is something peculiarly within the knowledge of a defendant and the plaintiff has made out some case to answer, the plaintiff would not be lightly deprived of his remedy without first hearing what the defendant has to say, and such a defendant should not be allowed to shelter behind the procedure of absolution from the instance merely because he is afraid to go into the witness box; Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A)...,; Munhuwa v Mhukahuru Bus Service 1994 (2) ZLR 382 (H)...,.

Right from the commencement of the trial, the plaintiff premised his claim on unjust enrichment. That is what counsel for the plaintiff said in his opening address. He did not, however, see any wisdom in amending the declaration to ground the claim on unjust enrichment, electing, instead, to leave it to the court to infer such a claim.

What remains at this stage, however, is that there is no claim based on unjust enrichment.

Even if it had been pleaded, I am not satisfied that the plaintiff has made a case based on unjust enrichment.

The requirements for such a claim were set out by BARTLETT J in Industrial Equity v Walker 1996 (1) ZLR 269 (H) 298..., where he said:

“I am of the respectful view that the principal requisites for a general action on enrichment can be regarded as aptly summarised by WOUTER De VOS in Verry King saanspreeklikheid in die Suid Africk aansc Reg (1958) as stated by SCHOLTENS in 1996 Annual Survey of South African Law, 150 at 152 as:

(a) The defendant must be enriched;

(b) The enrichment must be at the expense of another (i.e. the plaintiff must be impoverished and there must be a causal connection between enrichment and impoverishment);

(c) The enrichment must be unjustified;

(d) The case should not come under the scope of one of the classical enrichment actions;

(e) There should be no positive rule of law which refuses the action to the impoverished person.

Obviously these requirements can only be fulfilled if, in any given case, the action is based on a defined set of circumstances.”

What happened in this case is that a shareholder and founder member of the defendant who had been ousted from the position of Managing Director was fighting tooth and nail to force his way back into office; an office which was already occupied by Dr Saungweme.

Proceeding roughshod on all the rights and interests of others, and stating that he did not care whether anyone approved or not, he forcibly took office with no recognisable role to play except, perhaps, to cause alarm and despondency among everyone associated with the institution.

He threatened to sue Board members because they were accusing him of stealing money from the defendant.

In the midst of all this, he claimed to have taken his money, generated from his own medical rooms, and meant for the tuition fees of his children studying out of the country, and paid $50,000 of it to a perceived creditor of the defendant without anyone asking him to and certainly without any authority to do so.

When he did that, he was aware that the defendant was denying liability and was contesting the claim. In fact, as fate would have it, the defendant has successfully defended the architects' claim. It cannot be said, therefore, that it was liable and that the payment, if any, made by the plaintiff was for its benefit. No benefit whatsoever has been shown.

It is remarkable that not a single receipt for the fifteen (15) or so instalments allegedly made to the architects has been produced.

What has been produced in place thereof are dubious letters written by the architects who were woefully conflicted given they were also making a claim against the defendant and the plaintiff was their star witness in that doomed adventure. As to why, if at all payments were made, copies of receipts could not be produced, we can only speculate.

I am not satisfied that the evidence establishes that payment was indeed made by the plaintiff or that the defendant derived any benefit or enrichment from it as to ground a claim for unjust enrichment.

I agree with counsel for the defendant that the pleadings, as they stand, do not disclose a cause of action recognisable at law.

The evidence led does not do so either.

Even if we were to assume in favour of the plaintiff that he paid the money to the architects, it is still difficult to find the defendant liable for that payment.

This is because the defendant did not want payment to be made (the plaintiff admitted as such) as it did not hold itself liable. Just how then could a payment made against the will of the defendant be recoverable from it?

In advancing the argument that there can be no earthly basis upon which the defendant could be found liable for the folly of the plaintiff in paying money against the will of the supposed beneficiary, counsel for the defendant referred to a negotiorum gestio under the Law of Contract. He asserted that even that would not aid the plaintiff.

I agree.

Writing about the doctrine of negotiorum gestio, the learned author, R H CHRISTIE, Business Law in Zimbabwe, 2nd ed, Juta & Co Ltd..., stated:

“This doctrine permits any person to step in and act on behalf of another with the intention of benefiting him, unless prohibited by that other.

The gestor who thus steps in assumes the responsibility of completing the task he has begun, which will normally involve carrying on until the return of the absent principal, of accounting to the principal, and of showing a degree of care that will vary according to whether his position was thrust upon him or he intervened officiously.

The principal is liable to reimburse the gestor for all expenses properly incurred in a genuine attempt to benefit the principal, and the gestor has a right of retention over the principal's property until reimbursed.

Not being an agent, a negotiorum gestor does not create legal relationships between the principal and third parties, but, if he properly incurs obligations in his own name he is entitled to be indemnified by the principal.”

Even if a gestor is prohibited from acting on behalf of the other, he may recover his expenses to the extent that the other party has been enriched: Standard Bank Finance Services (Pty) Ltd v Taylam (Pvt) Ltd 1979 (2) SA 383 (C).

Unfortunately for the plaintiff, he does not qualify as a negotiorum gestor.

He was acting in no capacity at all as there was a Managing Director in place, Dr Saungweme, discharging that role. He may be taken to have been specifically prohibited from paying because he was aware that the defendant was denying liability and was contesting the claim. He could not then pay while swimming against the tide and then come back to claim from the very same defendant.

The law and the courts are not there to protect poor and extremely unreasonable business decisions; decisions made by people knowing fully well they are unwise hoping that the courts will sympathise.

The plaintiff simply had no business paying that money if he genuinely believed it was for the account of the defendant. If he did, there is no way any court, applying its mind reasonably, could make a mistake and find in his favour.

I conclude, therefore, that there is merit in the application for absolution from the instance. No evidence has been led upon which a reasonable mistake may be made to give judgment for the plaintiff.

In the result, I make the following order, that;

1. Absolution from the instance is hereby granted.

2. The plaintiff shall bear the defendant's costs.

Absolution from the Instance, Evidential Deficit and the Concept of Prima Facie

The plaintiff is a medical doctor, a gynaecologist, and a professor at the University of Zimbabwe. He boasts that he is a founder member and majority shareholder of the defendant, a maternity institution he is suing for $50,000, being money he says he paid to a creditor of the defendant on its behalf.

In his declaration, the plaintiff averred that sometime in September 2005, while he was the Managing Director of the defendant, he entered into an agreement with Vengesayi Architects (the architects), on behalf of the defendant, in terms of which the architects were to provide the defendant with services for a fee. The architects were contracted to make town planning applications for special consent on the Stand, co-ordinate all project consultations, design, work on drawings and supervise construction work of the proposed additions and alterations to the hospital.

Although the architects drew up the plans, the defendant did not proceed with the construction, but, the agreement he had concluded with the architects resulted in the defendant being indebted to the architects in the sum of US$1,300,000.

As Managing Director, founder, and majority shareholder of the defendant he paid a sum of $50,000 towards settlement of the debt in order to protect the integrity and good name of the defendant.

The $50,000 was paid by him in instalments between 30 May 2011 and 18 July 2011. The plaintiff averred, in paragraph 8 of the declaration, that:

“The money paid to the architects by the plaintiff thus made the latter the defendant's creditor. There is no dispute as to whether the plaintiff made the payment aforesaid.”

The plaintiff then prayed for judgement in the sum of $50,000 together with interest at the prescribed rate and costs of suit on a legal practitioner and client scale.

Having entered appearance to defend, the defendant filed a plea denying liability and stating that the plaintiff was not authorised by its Board of Directors and shareholders to enter into an agreement with the architects and that he had entered into that agreement unlawfully.

It further averred that when the plaintiff paid the sum of $50,000 to the architects, he did so without the authority of the defendant. As he had entered into the agreement without authority, the plaintiff was personally liable to the architects. The plaintiff's claim should therefore be dismissed with punitive costs.

At the pre-trial conference the parties agreed on the issues as:

1. Whether the plaintiff entered into an architectural agreement with the architects without the authority of the defendant's Board of Directors and shareholders.

2. Whether the defendant is liable to the plaintiff in the sum of $50,000 paid to the architects.

Only the plaintiff gave evidence at the trial of this matter, stating that he had been the Managing Director of the defendant since 1998 and he still holds that position.

On 29 January 2010, the defendant's Board had proposed, and agreed, that they should negotiate terms of payment of the architects' fees for work done. The architects had performed work for the defendant and submitted a claim for the payment of their fees.

Prior to that, the architects had drawn plans for the development of the hospital which was called the second phase.

A contract had been signed in 2005 between the hospital and the architects with the former being represented by himself. He made reference to pages 66 to 69 of exhibit 1, being the agreement in question, stating that it was signed by himself in his capacity then as Executive Chairman and countersigned by the defendant's Administrator.

The plaintiff maintained that he had the authority of the Board which he worked with then, to enter into the agreement, and, as such, the agreement was binding on the defendant which however did not pay the fees of the architects even though a demand for payment was initially made in 2006, re-submitted in 2009, and, finally, in 2010.

Prior to making payment on behalf of the defendant, he had been specifically mandated, by the Board, to negotiate with potential investors for the funding of the project. He had brought in Banc ABC which was willing to invest $7.5 million and Mbizvo Group which was willing to invest $15 million into the project. Content with the funding arrangement, the plaintiff said he had incorporated the architects' fees in the funding. He then paid $50,000 to the architects satisfied that he could recoup his money in due course.

The payment was made in order to create a good atmosphere for negotiation with the architects.

The plaintiff referred to letters written by the architects between 30 May 2011 and 18 July 2011…, in which the architects were acknowledging payment of the various sums allegedly made by the defendant to them.

The letters themselves are drafted the same way except for the figure acknowledged. The plaintiff did not explain why no receipt, in the usual manner, was issued. It was suggested to him, under cross-examination, that the letters were manufactured to justify his claim and he did not give a meaningful response.

The plaintiff stated that he had paid the money to the Administrator of the defendant, Mr Makamure, who, alone with the accountant, Mr Tembo, effected payment to the architects.

He pointed out that there was no formal Board meeting to authorize the payment and there was evidence that some Board members did not want payments to be made to the architects while others favoured payment.

There was no formal instruction given to him to effect that payment.

He however sought legal advice from Mr Mabulala, who was also a Board member. Before Mr Mabulala's advice came, in the form of a letter dated 13 June 2011..., the plaintiff went ahead and started paying instalments to the architects, the first one of $3,500 being made on 30 May 2011. When the letter from Mabulala & Motsi legal practitioners finally came it not only endorsed that payment was a fait accompli, it also counselled caution. It reads:

“RE: ARCHTECTS

I refer to your note to me dated 9th June 2011 and the letter from Kantor and Immerman dated 8th June 2011. It seems to me that you have already committed yourself, personally, to paying the architects' fees, and, any opinion from me would be of academic interest. The question which remains is whether or not you can, and did, lawfully commit the hospital as well. I hope the Board and the shareholders are fully informed of these latest developments.”

From the correspondence that had been refereed to Mr Mabulala, it is apparent that the plaintiff had already offered to pay $50,000 to the architects in “tranches” and had already agreed with them that he would sign a Deed of “surety, acknowledgement and undertaking” in respect of the full extent of their claim of $1,303,783 in respect of their fee note dated 3 August 2010…,.

The plaintiff says he then convened a meeting of the Board, in September 2011, intending to regularise what he had done without Board approval.

Unfortunately, on 21 September 2011, he says he was locked out of his office at the hospital and was prevented from going in by armed guards. He has never had access to the office since then and his efforts to reclaim his position and the office, subsequent to that, have hit a brick wall.

He approached this court, in HC9630/11, for spoliatory relief but was turned down. The judgement in that matter, delivered by MUTEMA J is HH221-11, and, at p3 of it, the court made the following findings:

“Applicant alleges (he) was despoiled of the office as well as his personal belongings lodged therein which he uses for his private life and business. Respondents have offered that applicant is at liberty, at his earliest convenience, to come and collect his personal items. I have no reason to doubt the sincerity of that offer.

However, as regards the office, that is a different kettle of fish.

While applicant alleges spoliation, respondents' papers clearly show that it is him who is the spoliator. He had been away for some 8 months and Saungweme was in lawful and undisturbed possession of that office. He was denied occupation of the office but he locked it to the exclusion of everyone except himself. This, despite the exitant dispute between the parties, amounts on the applicant's part, to self-held.

I did not hear applicant to dispute respondents' version either on paper or in oral submissions, of how he ended up re-occupying the office. He therefore cannot come to court with clean hands. He is the spoliator. To allow him audience would be tantamount to sanctioning unlawfulness.”

He says that if the meeting took place he does not know what transpired as he was unable to attend.

What is even more important is the fact that he was unable to “regularize” his payments made to the architects without approval - meaning that the plaintiff's payments remained unsanctioned.

The plaintiff testified that he paid the architects, on behalf of the defendant, because it was necessary to maintain the integrity and good name of the institution.

He did not have vouchers to show that payment was indeed made through the defendant.

Although he did not have direct and formal authority to effect the payment, he had indirect authority emanating from the fact that the Board had tasked him to raise funds for the project.

It did not specify the source of those funds which then left him at liberty, as the Managing Director at the time, to pay from his pocket. In any event, loans from shareholders (he is a major shareholder) have been given to the institution in the past.

Under cross examination, it became apparent that the plaintiff was not the Managing Director at the time that he made instalment payments of the $50,000 to the architects - Dr Saungweme was. According to the minutes of a Board meeting held on 10 May 2011…, the plaintiff was trying to force his way back in that position. The minutes state, at paragraph 4.2:

“Dr P. Zvandasara

Dr Zvandasara came into the boardroom and advised the Board that he had notified the Board chair person that he was now back at the hospital as the Managing Director. He went on to say that he had taken legal action against some Board members who had accused him of stealing hospital funds.”

That state of affairs was also captured in the minutes of a Shareholders meeting held on 25 May 2011 during which the plaintiff notified the gathering that he was coming back as Managing Director (MD) because some people had accused him of being a thief. At paragraphs 5 and 6, the minutes state:

“He (the plaintiff) went on to declare that whether the members approved or not, he was now the one running the activities of the institution as the MD. He said that he could no longer work with the shareholders and proposed that we proceed with a separation either through him buying the other shareholders out or vice versa.

The shareholders noted, with concern, the developments that had taken place.

They advised Dr Zvandasara that the current recognised MD for the institution is Dr Saungweme; the position remained that Dr Saungweme had been appointed by the Board as the MD with effect from August 2010. This motion was put to the vote and was unanimously endorsed.”

It also became apparent that the defendant had contested the validity of the agreement for architectural services throughout, and, when they raised a fee note for those services, in the sum of $1,071,999=05, on 3 August 2010, about the same time that the plaintiff ceased to become Managing Director (MD), the defendant disputed liability.

It is a matter of record that in HC2893/12 the architects sued the defendant for the amount set out in the fee note, without deducting the $50,000 allegedly paid by the plaintiff, suggesting they did not recognise any payment. That claim was dismissed by this court, per DUBE J, by judgement delivered on 18 February 2015 (HH161-15).

In that matter, the plaintiff was called as a witness by the architects and stated that:

“He paid $50,000 from his own pocket after the defendant had refused to settle the fee note.”

My attention was also drawn to a summons and declaration in HC9444/11…, in which the plaintiff had sued the defendant for payment of the same amount of $50,000 through Mambosasa legal practitioners of Harare. In paragraph 7 of the declaration he had averred;

“The defendant failed, refused and/or neglected to pay the amount due to the architects in its entirety alleging, inter alia, that the plaintiff had no authority to contract with the architects resulting in the plaintiff feeling compelled to repay part of the debt from his personal sources.”

The totality of the evidence shows, clearly, that, at the time that the plaintiff took it upon himself to pay $50,000 of the claim made by the architects he had no authority of the defendant to make that payment and the defendant was already contesting the claim.

The plaintiff was aware of the defendant's position in that regard but decided to take a calculated risk and pay the money all the same. He said that he did so because he could not renege on the promise he had given to the architects that payment would be made.

At the end of evidence for the plaintiff, counsel for the defendant made an application for absolution from the instance on the basis that no evidence had been led upon which the court may find in favour of the plaintiff. He submitted that the evidence has not shown any contract between the parties in terms of which the money was paid. In any case, the claim, as pleaded, is not based on contract.

In addition, the claim is not based on unjust enrichment either because it was not pleaded.

Counsel for the defendant submitted that the plaintiff's counsel could not possibly introduce the claim for unjust enrichment in his opening address when it has not been pleaded.

In any event, according to the plaintiff's evidence, he paid the $50,000 without authority in order to create a conducive atmosphere for dialogue between the parties. He did not achieve that objective and there is no evidence that the defendant was enriched in any way.

Counsel for the plaintiff opposed the application, submitting that the plaintiff has shown, in his evidence, that the defendant was enriched by the payment made to the architects especially as the plans prepared are available and can be used.

No such evidence about the plans was led.

As to whether unjust enrichment was pleaded, counsel for the plaintiff suggested that it should be implied from paragraph 8 of the declaration which I have already quoted above.

Surely, that averment cannot, by any stretch of the imagination, be taken as pleading unjust enrichment.

What counsel is asking me to do is to stretch the imagination to elasticity limit.

The plaintiff merely averred, that, by paying to the architects, the plaintiff became the defendant's creditor and not that the defendant was unjustly enriched by such payment. As to how the debtor-creditor relationship so alleged germinated from those circumstances we are not told.

The essence of any claim is to be found in the pleadings.

It is the function of pleadings to inform the parties of the points of issue between them to enable them to know, in advance, what case they have to meet, to assist the court to define the limits of the action, and to place the issues on record: Matewa v Zimbabwe Electricity Transmission and Distribution Company (ZETDC) HH04-13...,; see also BECK's Theory and Principles of Civil Actions, 5th ed..., and Chifamba v Mutasa & Ors HH16-08.

Where a litigant has pleaded a particular cause of action, the opponent is entitled to rely on that pleading in order to prepare for court and put together evidence which it has in order to meet the claim at the trial.

This is because the pleading exists for the purpose, first and foremost, of informing the other party of the precise nature of the claim they have to meet. The party pleading in that way, and therefore informing the other of the claim, cannot be allowed to twist and turn and infer averments that have not been pleaded. Allowing that would not only embarrass the other party but also prejudice that party.

In an application for absolution, the test to be applied was set out by GUBBAY CJ in United Air Charterers v Jarman 1994 (2) ZLR 341 (S)..., as:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction.

A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court directing its mind reasonably to such evidence, could or might (not should or ought to) find for him; see Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A) at 5D–E; Lourenco v Raja Dry Cleaners & Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) at 158B–E.”

In Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A)..., BEADLE CJ said of that test:

“The test boils down to this: Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff?

What is a reasonable mistake in any case must always be a question of fact, and cannot be defined with any greater exactitude than by saying that it is the sort of mistake a reasonable court might make – a definition which helps not at all.”

See also Quintessence Co-ordinators (Pty) Ltd v Government of the Republic of Transkei 1993 (3) SA T84 (TK) 85B–D; Standard Chartered Finance Zimbabwe Ltd v Georgious & Anor 1998 (2) ZLR 547 (H) 55 2 G–H; Modcraft Engineering (Pvt) Ltd v Tenda Buses (Pvt) Ltd 207-13; Katsande v Welt Huinger Hilfer & Anor HH396-13.

It is true that if the defence is something peculiarly within the knowledge of a defendant and the plaintiff has made out some case to answer, the plaintiff would not be lightly deprived of his remedy without first hearing what the defendant has to say, and such a defendant should not be allowed to shelter behind the procedure of absolution from the instance merely because he is afraid to go into the witness box; Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A)...,; Munhuwa v Mhukahuru Bus Service 1994 (2) ZLR 382 (H)...,.

Right from the commencement of the trial, the plaintiff premised his claim on unjust enrichment. That is what counsel for the plaintiff said in his opening address. He did not, however, see any wisdom in amending the declaration to ground the claim on unjust enrichment, electing, instead, to leave it to the court to infer such a claim.

What remains at this stage, however, is that there is no claim based on unjust enrichment.

Even if it had been pleaded, I am not satisfied that the plaintiff has made a case based on unjust enrichment.

The requirements for such a claim were set out by BARTLETT J in Industrial Equity v Walker 1996 (1) ZLR 269 (H) 298..., where he said:

“I am of the respectful view that the principal requisites for a general action on enrichment can be regarded as aptly summarised by WOUTER De VOS in Verry King saanspreeklikheid in die Suid Africk aansc Reg (1958) as stated by SCHOLTENS in 1996 Annual Survey of South African Law, 150 at 152 as:

(a) The defendant must be enriched;

(b) The enrichment must be at the expense of another (i.e. the plaintiff must be impoverished and there must be a causal connection between enrichment and impoverishment);

(c) The enrichment must be unjustified;

(d) The case should not come under the scope of one of the classical enrichment actions;

(e) There should be no positive rule of law which refuses the action to the impoverished person.

Obviously these requirements can only be fulfilled if, in any given case, the action is based on a defined set of circumstances.”

What happened in this case is that a shareholder and founder member of the defendant who had been ousted from the position of Managing Director was fighting tooth and nail to force his way back into office; an office which was already occupied by Dr Saungweme.

Proceeding roughshod on all the rights and interests of others, and stating that he did not care whether anyone approved or not, he forcibly took office with no recognisable role to play except, perhaps, to cause alarm and despondency among everyone associated with the institution.

He threatened to sue Board members because they were accusing him of stealing money from the defendant.

In the midst of all this, he claimed to have taken his money, generated from his own medical rooms, and meant for the tuition fees of his children studying out of the country, and paid $50,000 of it to a perceived creditor of the defendant without anyone asking him to and certainly without any authority to do so.

When he did that, he was aware that the defendant was denying liability and was contesting the claim. In fact, as fate would have it, the defendant has successfully defended the architects' claim. It cannot be said, therefore, that it was liable and that the payment, if any, made by the plaintiff was for its benefit. No benefit whatsoever has been shown.

It is remarkable that not a single receipt for the fifteen (15) or so instalments allegedly made to the architects has been produced.

What has been produced in place thereof are dubious letters written by the architects who were woefully conflicted given they were also making a claim against the defendant and the plaintiff was their star witness in that doomed adventure. As to why, if at all payments were made, copies of receipts could not be produced, we can only speculate.

I am not satisfied that the evidence establishes that payment was indeed made by the plaintiff or that the defendant derived any benefit or enrichment from it as to ground a claim for unjust enrichment.

I agree with counsel for the defendant that the pleadings, as they stand, do not disclose a cause of action recognisable at law.

The evidence led does not do so either.

Even if we were to assume in favour of the plaintiff that he paid the money to the architects, it is still difficult to find the defendant liable for that payment.

This is because the defendant did not want payment to be made (the plaintiff admitted as such) as it did not hold itself liable. Just how then could a payment made against the will of the defendant be recoverable from it?

In advancing the argument that there can be no earthly basis upon which the defendant could be found liable for the folly of the plaintiff in paying money against the will of the supposed beneficiary, counsel for the defendant referred to a negotiorum gestio under the Law of Contract. He asserted that even that would not aid the plaintiff.

I agree.

Writing about the doctrine of negotiorum gestio, the learned author, R H CHRISTIE, Business Law in Zimbabwe, 2nd ed, Juta & Co Ltd..., stated:

“This doctrine permits any person to step in and act on behalf of another with the intention of benefiting him, unless prohibited by that other.

The gestor who thus steps in assumes the responsibility of completing the task he has begun, which will normally involve carrying on until the return of the absent principal, of accounting to the principal, and of showing a degree of care that will vary according to whether his position was thrust upon him or he intervened officiously.

The principal is liable to reimburse the gestor for all expenses properly incurred in a genuine attempt to benefit the principal, and the gestor has a right of retention over the principal's property until reimbursed.

Not being an agent, a negotiorum gestor does not create legal relationships between the principal and third parties, but, if he properly incurs obligations in his own name he is entitled to be indemnified by the principal.”

Even if a gestor is prohibited from acting on behalf of the other, he may recover his expenses to the extent that the other party has been enriched: Standard Bank Finance Services (Pty) Ltd v Taylam (Pvt) Ltd 1979 (2) SA 383 (C).

Unfortunately for the plaintiff, he does not qualify as a negotiorum gestor.

He was acting in no capacity at all as there was a Managing Director in place, Dr Saungweme, discharging that role. He may be taken to have been specifically prohibited from paying because he was aware that the defendant was denying liability and was contesting the claim. He could not then pay while swimming against the tide and then come back to claim from the very same defendant.

The law and the courts are not there to protect poor and extremely unreasonable business decisions; decisions made by people knowing fully well they are unwise hoping that the courts will sympathise.

The plaintiff simply had no business paying that money if he genuinely believed it was for the account of the defendant. If he did, there is no way any court, applying its mind reasonably, could make a mistake and find in his favour.

I conclude, therefore, that there is merit in the application for absolution from the instance. No evidence has been led upon which a reasonable mistake may be made to give judgment for the plaintiff.

In the result, I make the following order, that;

1. Absolution from the instance is hereby granted.

2. The plaintiff shall bear the defendant's costs.

Law Portal
Zimbabwe

HH260-15 - DR PARTSON ZVANDASARA vs BELVEDERE NURSING HOME (PVT) LTD

Agency Law re: Acting For Another iro Agency Relationship, Independent Contractor & Quasi-Mutual Assent Doctrine

Evidence of Oath, Evidence Derived from Previous, Concurrent or Criminal Litigation, Perjury & Submissions from the Bar

Findings of Fact re: Assessment of Evidence and Inferences iro Approach, Facta Probantia and Facta Probanda

Pleadings re: Approach to Pleadings, Pre-Trial Proceedings, Disparities with Oral Evidence and Unchallenged Statements

Onus, Burden and Standard of Proof and Principle that He Who Alleges Must Prove re: Approach

Pleadings re: Approach to Pleadings, Pre-Trial Proceedings, Disparities with Oral Evidence and Unchallenged Statements

Prevaricative or Inconsistent Evidence and Approbating and Reprobating a Course in Proceedings

Pleadings re: Belated Pleadings, Matters Raised Mero Motu by the Court and the Doctrine of Notice iro Approach

Cause of Action and Draft Orders re: Approach, Timing, Framing and Legal Basis for Invoking Jurisdiction of the Court

Approach re: Contract for the Benefit of a Third Party, Stipulatio Alteri & the Ratification or Adoption of Agreements

Unjust Enrichment re: Approach, Colore Officii or Extortion by Colour of Office, Equality and Equity Considerations

Vindicatory Action or Rei Vindicatio re: Claim of Retention or Lien Pending Compensation and Negotiorum Gestio

Specific Performance re: Approach, Impossibility of Performance and the Exceptio Non Adimpleti Contractus

Debt re: Contractual and Judgment Debt iro Approach, Proof of Claim, Execution, Revalorization and Civil Imprisonment

Debt re: Acknowledgement of Debt iro Assumption of Liability, Negotiorum Gestio, Expromissio & the Concept of Intercessio

Agency Law re: Acting For Another iro Power of Attorney, Resolutions, Proxy, Negotiorum Gestio, Conduct & Derivative Action

Absolution from the Instance, Evidential Deficit and the Concept of Prima Facie

Categories

Law Portal Zimbabwe

HH260-15 - DR PARTSON ZVANDASARA vs BELVEDERE NURSING HOME (PVT) LTD

Categories

Your Donation.

Law Portal
Zimbabwe