Tererai Edwin Chabata and Lynette Chabata v M.O.B. Capital (Pvt) Ltd

### Preamble
1
HB 42/21
HC 3415/15
---------


TERERAI EDWIN CHABATA

And

LYNETTE CHABATA

Versus

M.O.B. CAPITAL (PVT) LTD

HIGH COURT OF ZIMBABWE

MOYO J

BULAWAYO 29 SEPTEMBER, 21 OCTOBER 2020 AND 18 MARCH 2021

Civil Trial

H Shenje, for the plaintiffs

Ms D Josiah, for the defendant

MOYO J:	The plaintiffs in this matter issued summons against the defendant claiming from the defendant a sum of $24 380-00 being a balance due in respect of funds that allegedly plaintiffs invested with the defendant around the month of January 2014.  Plaintiffs claim that the investment agreement was mutually agreed between the parties and has since been cancelled by the plaintiffs rendering the balance of the invested sum due to them.  They have also claimed costs at an attorney and client scale.

Plaintiffs led evidence to the effect that they entered into an investment agreement with one Morris Mpala who is a Director of the defendant and that a sum of US10 000-00 was paid by them in cash to Moris Mpala for onward transmission to the defendant.  A second sum of $42 940-00 was paid by the 2nd plaintiff into the defendant’s account via what is commonly known as an RTGS transfer.  The reference for the transfer is inscribed as “purchase of a house (Morris Mpala)”  They tendered a receipt by Morris Mpala to prove that the sum of $10 000 in cash was paid to Morris Mpala.  The receipt does not refer to the defendant in any way.  The same applies to the RTGS transfer, save for that it was made into defendant’s account, there is no indication in the reference that the money was for the defendant, in fact the reference did not allude to an investment contract with the defendant but referred to a purchase of a house (Morris Mpala).

1st plaintiff told the court that he earned some interest totaling about $6 180-00 and that a sum of $25 000 was paid out by the defendant towards the purchase of a house by the plaintiffs.  He said the balance due is a sum of $18 300-00 which is what they are claiming and not the USD24 380-00 claimed in the summons.  2nd plaintiff though seemed not to know everything about the transaction but she confirms that it was indeed done and that at all material times she was present.  There was an issue of the document in the form of a receipt with a sum of USD14 940 which 1st plaintiff said was an acknowledgment of the sum owing by the defendant but which 2nd plaintiff said was a receipt for that sum by Morris Mpala on defendant’s behalf.  2nd plaintiff did not know about the interest that was allegedly paid by Morris Mpala on behalf of the defendant to 1st plaintiff.

The defendant called 2 witnesses one Gloria Munyoro and Morris Mpala.  Gloria Munyoro told the court that she is employed by M.O.B Capital as a branch manager and that the defendant has 5 directors.  She also stated that defendant is into micro-finance, micro lending and insurance.  She said she is aware of the sum of $42 940-00 which was paid into defendant’s account for the purchase of a house with Morris Mpala and that Morris Mpala paid a sum of about 25 000-00 to Net Seven Real Estate.  She said 1st plaintiff was also a director of the company at the material time.  He said the sum of $42 940-00 came in as a payment for Morris Mpala and not the defendant.  She said the remainder after the sum that Morris Mpala paid to Net Seven, was drawn by him (Morris Mpala).  Those were the material respects of Gloria Munyoro’s evidence.

Morris Mpala also testified and crucial from his testimony is that he disputed receiving any sums of money on behalf of the defendant from the plaintiffs and he told the court that the sums paid to him by the plaintiffs were to do with their personal transactions with him that had nothing to do with the defendant.  Morris Mpala literally refuted that his deals with the plaintiffs had anything to do with the defendant.  He even said he took the balance from the defendant’s account after paying Net Seven the sum of 25 000-00 because the plaintiffs owed him.

For a plaintiff to succeed in any claim, proof must be established on a balance of probabilities that indeed plaintiff has made a case for the relief he/she seeks and therefore must succeed in the claim.  In this case, before one even assessed the defendant’s case, there are numerous problems with the plaintiffs’ case as I will show herein.

1.	The terms and conditions of the Investment agreement are elusive

Plaintiffs have failed to articulate the precise terms and conditions of the investment agreement to prove the existence thereof on a balance of probabilities.  I have had occasion to search on the internet what an investment agreement is and I found on the website “legal vision.com.au” the following definition of an investment agreement”

“An investment agreement is a contract entered into between a company and an investor.  It sets out the terms and conditions of the investment transaction.  It is very important to have an investment agreement because it covers the key terms of the investment, including:-

The details of the company and the investor.

How much is being invested.

Any conditions of the investment.

The actions each party is obliged to take in order to complete the investment …”

In this matter we just have an investment agreement with no terms and conditions whatsoever.  The agreement also purportedly entered into with a company being an artificial person it would have been desirable that some document is produced showing that indeed it is the company represented by whoever, entering the agreement together with its terms and conditions.

The sum of $10 000-00 paid to Morris Mpala in cash does not help the claim by the plaintiffs either because there is nowhere in that document where it is said the sum was for and on behalf of the defendant vis-a-vis an investment agreement, which agreement itself has not been established in the sense that its terms and conditions are elusive.  The RTGS transfer by 2nd plaintiff into defendant’s account, does not help plaintiff’s case neither because it does not refer to any investment agreement, it purports to be a payment for purchase of a house (Morris Mpala). Surely sums paid into a company account for an investment agreement would clearly state such.  That the funds are for the purchase of a house (Morris Mpala) does not in any way support the contention by the plaintiffs that they were being paid pursuant to an investment agreement.  This is even worsened by the fact I have already mentioned before that no investment agreement was established in evidence by the plaintiffs.

Defendant called Morris Mpala who flatly refused that he entered into an investment agreement with plaintiffs representing the defendant and that in fact he had personal dealings with plaintiffs.  He further confirmed that the balance of $18 000 remaining in the defendant’s account was for himself as they owed him from numerous transactions they had in their personal deals with him.

Now, it becomes difficult to refute the claims made by Morris Mpala that in fact there was never any investment deal with defendant but there were personal dealings with him and that defendant’s bank account was only used at his request because even plaintiffs themselves have failed to establish the terms and conditions of the investment agreement.  Further, no document has been tendered as an agreement since it was allegedly entered into with an artificial person.  Further, the payments were made to Morris Mpala.  The cash receipt of $10 000-00 was to Morris Mpala.  Even if it were to be contended that the company had no receipt books at the time.  The receipt should have spoken to the transaction, that is, to state that the sums were paid to Morris Mpala Re: an investment agreement with M.O.B Capital.  The receipt does not do so and in fact supports Morris Mpala’s contention that these were personal transactions.  Again, on the sum of $42 940-00, the RTGS transfer into defendant’s account.

2nd plaintiff had a chance to at least inscribe the investment agreement as a reference on the transfer but she did not.  In fact, she inscribed “purchase of a house (Morris Mpala)” and that certainly is inconsistent with payment of funds into defendant’s company pursuant to an investment agreement.  In fact the other problem with the sum that was paid via transfer is that 2nd plaintiff made the RTGS transfer into defendant’s account on 6 January 2014 and on 7 January 2014 the sum of 25 000-00 was then paid off these funds to Net Seven Real Estate purportedly as a deposit for a house that was for the plaintiffs   This in itself is inconsistent with the investment agreement that the plaintiffs seek to base their claim on.  How could funds paid on 6 January 2014, for investment be paid out on 7 January 2014, for the purchase of a house by the plaintiffs?  In fact the pay out to Net Seven Real Estate the following day shows that for all intents and purposes the RTGS transfer was indeed for the purchase of a house and that had something to do with their deals with Morris Mpala inscribed on the RTGS transfer as reference.

On these facts I find that the plaintiffs have failed to prove the existence of any investment agreement with defendant.  No terms and conditions of such investment have been clearly articulated and in fact the purpose of the payments made themselves speak a different story.  Morris Mpala’s evidence is consistent with the documents tendered.  That there was never an investment agreement with defendant and that in fact these were personal deals.  Also, that he first used the defendant’s account upon request and that he used the balance personally.  I am unable to find in favor of the plaintiffs as the facts clearly point to a different scenario other than what the plaintiffs want this court to believe.    The sum total of the facts before me do not support plaintiffs’ cause of action.

I accordingly dismiss plaintiffs’ claim with costs.

Shenje and Company, plaintiffs’ legal practitioners

Ndove and Associates, defendant’s legal practitioners