Marlon Chikuni & Puroil (Pvt) Ltd & Gama Energies (Pvt) Ltd v Mahuni Gidiri Legal Practitioners

### Preamble
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HH 493/25
HCHC38/25
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MARLON CHIKUNI

And

PUROIL (PVT) LTD

And

GAMA ENERGIES (PVT) LTD

Versus

MAHUNI GIDIRI LEGAL PRACTITIONERS

HIGH COURT OF ZIMBABWE

COMMERCIAL DIVISION

CHILIMBE & NDLOVU JJ

HARARE, 01 June & 2 September 2025

Mr T. Chagunda, for the 1st, 2nd and 3rd Apellant

Mr M. S. Nyanoka, for the Respondent

Civil Appeal

NDLOVU J: This is an appeal against the whole judgment of the Magistrates Court sitting at Harare, handed down by Her Worship Esquire H. Fazilahmed on the 22nd of January 2025 under case number. C-CD 1696/24.

BACKGROUND

Sometime in 2022, the second appellant, represented by the first appellant, entered into a contractual agreement for the purchase of 400,000 litres of fuel from R-Powered Solutions (Pvt) Ltd, a South African Company represented by the respondent, a law firm fully registered with the Law Society of Zimbabwe and practising in Zimbabwe. This arrangement entailed the supply of 400,000 litres of fuel at US$1 per litre. In terms of that agreement, a sum of US$400,000.00 was paid into the respondent’s account. However, R-Powered Solutions only delivered 40,000 litres of fuel, resulting in a shortfall of 360000 litres equating to US$360,000. R-Powered Solutions ultimately did not supply the 360,000 litres, resulting in a lawsuit in which they recovered their US$360,000. However, in the meantime, and during the impasse regarding the 360,000 litres, the respondent had made available to the appellants US$19,500.00 to mitigate their cash flow challenges. Upon the appellants' recovery of US$360,000.00, the respondent sought the return of US$19,500 from the appellants. The appellants declined the demand, leading to this litigation.

PROCEEDINGS IN THE COURT A QUO

Mr Rungano Mahuni, who is the respondent’s managing partner and was designated as the exclusive attorney for R-Powered Solutions in various transactions, testified that the appellants had approached the Respondent for financial support due to delays in fuel delivery, which resulted in the provision of the US$19,500. Mahuni told the court that the outstanding 360,000 litres of fuel were eventually recovered as US$360,000 through legal proceedings. He refuted the claim that the US$19,500 belonged to the appellants while in the trust account, arguing that the funds were the Respondent's fees and that the appellants would be unjustly enriched.

The appellants’ case was prosecuted through Mr. Marlon Chikomo, the first appellant, who testified that they paid US$400,000 for fuel to R-Powered Solutions through the respondent. He further testified that no fuel was delivered as promised, on account of the Respondent’s client. Upon learning that funds had been withdrawn from the Respondent’s trust account, the appellants sought reimbursement. He acknowledged receiving the US$19,500 from the respondent, but argued that it did not belong to the Respondent. He claimed that the costs incurred due to the fuel delivery issues exceeded the amount in question. The appellants contended that since the amount was withdrawn from the trust account, the Respondent had no right to retain it.

FINDINGS OF THE COURT A QUO

The court a quo ruled in favour of the Respondent, concluding that the appellants were indeed liable for US$19,500. It reasoned that the appellants had no valid claim to retain the funds and granted the Respondent its claim for reimbursement.

PROCEEDINGS BEFORE THIS COURT.

Dissatisfied with the outcome of the proceedings in the court a quo, the appellants launched this appeal.

GROUNDS OF APPEAL

The court erred at law in determining and deciding the matter on the basis of unjustified enrichment, which issue was never placed before the court. By so doing, the court went on a frolic of its own.

The court a quo erred at law in failing to find that the funds paid into the Respondent’s trust account by the 2nd Appellant remained the 2nd Appellant’s funds until the Appellant had received the fuel that had been purchased by the 2nd Appellant.

The court a quo erred at law in holding that the Respondent had no obligation to account to the Appellants for funds paid into its trust account, which funds remained the Appellants’ funds, notwithstanding the fact that the Respondent, in proceedings in case No. HC 196/22 accepted that the funds paid by it to a third party from the funds paid by the Appellant belonged to and ought to be returned to the Appellants.

The court a quo erred at law in finding that the Respondent is entitled to payment of the sum of US$19 500.00 from the Appellants in circumstances wherein the Respondent failed to establish a legal entitlement to such money.

RELIEF SOUGHT

WHEREFORE, Appellant hereby seek the following relief:

That the appeal succeeds with costs.

That the judgment  of the court a quo be set aside and substituted with the following order:

“The claim be and hereby dismissed with costs.”

ISSUE FOR DETERMINATION

Whether or not the principle of unjust enrichment applies in this matter.

Whether or not the appellants were indebted to the respondent for US$19,500?

THE LAW

6. An appellate court must identify an error in the exercise of discretion by the primary court. If the primary court has acted on an erroneous principle, allowed irrelevant factors to influence its decision, misapprehended facts, or failed to consider pertinent evidence, its ruling may warrant review, empowering the appellate court to exercise its own discretion. Barros v Chimphonda 1999 (1) ZLR 58 (S).

7. The four essential elements required for a successful claim of unjust enrichment are:

1. The defendant must be enriched;

2. The plaintiff must suffer impoverishment;

3. The defendant’s enrichment must occur at the plaintiff’s expense; and

4. The enrichment must be unjustified, meaning it lacks any legal basis (sine causa).

8. A plaintiff who initially pleads the incorrect action may be allowed to amend his claim but even if such a plaintiff did not amend his claim, the court can still award the action that he should have relied on, as long as its requirements were fully canvassed in evidence and the defendant would not be prejudiced by reliance on the incorrect action in the pleadings.

Du Plessis, in The South African Law of Unjustified Enrichment, Juta 2012.

Hughes v Levy 1907 TS 276).

9. Even if unjust enrichment is not pleaded, the evidence led at the trial can cure such a failure. This approach accords with both judicial precedent and the academic works. Even where no amendments have been applied for, both trial and appellate courts have adjudicated on issues not raised in the pleadings but fully canvassed at trial.

Joel Silonda (substituted by executor Vusumuzi Thomas Silonda v Vusumuzi Nkomo SC

6/22

Herbstein and Van Winsen’s Civil Practice of the High Courts of South Africa, 5th

ed by Cilliers et al at p 575-6

APPLICATION OF THE LAW TO THE FACTS

10. An appeal must challenge the primary court's findings on legal grounds or allege a gross misdirection or irrationality in the court's factual determinations. The central issue in this appeal concerns whether the appellants were indebted to the Respondent in the Amount of US$19,500.

Whether or not the principle of unjust enrichment applies in this matter.

11. The first ground of appeal asserts that the court a quo erred in addressing the issue of unjust enrichment, which the parties did not raise. The fourth ground contends that the court a quo erred in concluding that the Respondent was entitled to the US$19,500, given the Respondent's failure to establish a legal basis for such a claim. These two grounds can be analysed together, as they both pertain to the Respondent's entitlement to the disputed amount.

12. Focus must be on the existence of unjustified enrichment, which arises when one party benefits at the expense of another without a valid legal basis. The Respondent suffered impoverishment, while the enrichment received by the appellants was unjustified, as they had already been compensated through an order of this court. The appellants would benefit unjustly if they were allowed to keep the money. There is clear evidence of unjust enrichment amounting to US$19,500 in the direction of the appellants. The law forbids that. The evidence from both parties supports this conclusion, even if the Respondent did not explicitly frame the issue on those terms in its pleadings.

13. The Respondent sought a remedy grounded in the principles of unjust enrichment. The court a quo did not err in its exercise of discretion, nor did it misdirect itself, as the claim was firmly entrenched in the legal principles governing unjust enrichment. Thus, the two grounds of appeal lack merit, and they are dismissed.

Whether or not the appellants were indebted to the respondent of US$19,500?

14. The second ground of appeal contends that the court a quo erred in concluding that the funds deposited into the Respondent’s trust account by the second appellant remained the property of the second appellant until the fuel purchased was delivered. The third ground asserts that the court a quo incorrectly held that the Respondent had no obligation to account for these funds, which the appellants argue still belonged to them. These two grounds of appeal are interconnected and warrant a joint analysis, as they raise similar legal issues regarding the nature and ownership of the funds in question.

15. It is undisputed that the funds deposited into the Respondent’s trust account were characterised as the appellants’ funds until the delivery of fuel. The Respondent, acting on behalf of its client, had a fiduciary responsibility to manage those funds appropriately. However, the critical issue is not the reason the amount claimed by the Respondent was deposited into its trust account. Neither is it the accounting subheading it was supposed to appear under during the auditing of the respondents’ books of accounts.

16. What is critical in this matter is that the appellants gave the respondent US$400,000, intended for the purchase of fuel at US$1 per litre. They got US$360,000 plus 40000 litres of fuel [representing US$40000], PLUS US$19500 from the Respondent. It is not brainier that the US$19,500 was an overpayment, and the matter rests there. Further discussion on this point is unnecessary and a waste of industry. What matters is whether they retained funds not due to them. The appellants' argument that the money belongs to the respondent’s client is stillborn. The appellants are not agents of the respondent’s client. Their argument lacks the merit necessary for this court to intervene in the lower court's findings. Grounds of appeal numbers two and three are dismissed.

DISPOSITION

17. The appellants admitted to receiving US$19,500 after already obtaining the original value of their purchase. This acknowledgement indicates that the appellants unjustifiably benefited from the funds, as they were already compensated for their initial transaction. The evidence supports the Respondent's claim of unjust enrichment. The appeal lacks merit, and the lower court's verdict is upheld, and I accordingly order as follows;

ORDER

The appeal is hereby dismissed with costs.

NDLOVU J

CHILIMBE J                                          Agrees ……………

Atherstone & Cook Legal Practitioners, Legal practitioners for the three appellants.

Mahuni Gidiri Law Chambers, Legal practitioners for the respondent.