Ramangwana Investments (Private) Limited v Dolorosa Mubvumbi and The Registrar of Deeds

### Preamble
1
HH 406-2012
HC 1372-2011
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RAMANGWANA INVESTMENTS (PRIVATE) LIMITED

versus

DOLOROSA MUBVUMBI

and

THE REGISTRAR OF DEEDS

HIGH COURT OF ZIMBABWE

MTSHIYA J

HARARE, 17 July 2012, 18 July 2012, 11 September 2012 and 24 October 2012

T. Mawere for the Plaintiff

T.K. Hove for the Defendant

MTSHIYA J:	In this action the agreed issues for determination are listed as

follows:-

“1.	Whether or not there was a valid Agreement of Sale between the

plaintiff and the first defendant.

2.	Whether or not the Agreement of Sale was void and contrary to

Section 44 of the Stamp Duties Act [Cap 23:09].

3.	Whether or not the plaintiff is entitled to transfer of the property in

question.”

The above issues emanate from the plaintiff’s claim contained in its summons issued against the defendants on 9 February 2011. The plaintiff’s claim was for:-

“a) 	An order compelling the first defendant to take all necessary steps

required in order to effect transfer to the plaintiff of the property known as

an undivided 0.85% share being share number 35 of Stand 16743

Salisbury Township, measuring 6 578 square metres and held under Deed

of Transfer Number 8783/2003 within 7 days of service of this order on her;

b)	Should the first defendant fail to comply with the provisions of paragraph

(a) above, an order authorizing the Deputy Sheriff Harare to sign all

documents necessary to effect transfer of the property, namely an

undivided 0.85% share being share number 35 of Stand 16743 Salisbury

Township, measuring 6 578 square metres and held under Deed of

Transfer Number 8783/2003 into the plaintiff’s name.

c) 	Costs of suit on the higher scale of legal practitioner and client.”

The background to the plaintiff’s claim, given above, is that on 16 March 2010 the plaintiff and the first defendant entered into a written agreement of sale. The agreement was for the sale to the plaintiff  by the first defendant of an “immovable property, namely an undivided 0.85% share being share number 35 of Stand 16743 Salisbury Township, measuring 6578 square metres and held under Deed of Transfer Number 8783/2003,” (the property). The purchase price of the property was agreed at US$19 000-00 payable upon the signing of the agreement by both parties. It was also agreed that transfer of the property would be effected within 14 days upon fulfilment by the plaintiff of its obligations under the agreement. It was further agreed that the parties would deliver all requisite documents to the appointed conveyancers and that the first defendant would obtain the Capital Gains Clearance Certificate from the Zimbabwe Revenue Authority (ZIMRA) within 14 days upon the plaintiff having fulfilled its obligations under the agreement.

The plaintiff, upon signing the agreement on 12 March 2010, paid the full purchase price of US$19 000-00 to Panavest Properties (Pvt) Limited (Panavest) who were selling the property on behalf of the first defendant.

It is common cause that on 16 March 2010 the first defendant was paid US$10 000-00 by Panavest. The amount was paid from the purchase price at the request of the first defendant who wanted to pay off a loan she had been granted by Messrs Hamilton Property Holdings Limited (Hamilton). Payment of that money would lead to the release of the title deeds of the property which Hamilton were holding as security.

The first defendant has, contrary to the agreement she signed on 16 March 2010, refused or failed to honour her obligation under the agreement, namely obtaining the Capital Gains Clearance Certificate from ZIMRA. She has argued that she never intended to sell the property but merely wanted a loan of US$9 200-00 from the plaintiff. It is for that reason that the plaintiff instituted this action on 9 February 2011.

The plaintiff called two witnesses, namely Timothy Mazibiye (Mazibiye) and Fungai Kuipa (Kuipa).

Before the witnesses testified the parties agreed to the admission of the plaintiff’s bundle of documents as exhibit 1. Initially the exhibit contained 25 pages but as the trial progressed additional papers were, by consent, handed in leading to additional pages, namely pages 26 (invoice from the Herald for an advert) and 27 (copy of advert in the Herald).

The plaintiff’s first witness, Mazibiye, said he is a registered Estate Agent and practices under Panavest. He said on 1 March 2010 upon being mandated by the first defendant to sale the property for US$20 000-00, he proceeded to advertise it in the Herald on 8 March 2010. He subsequently received an offer of US$18 500-00 from the plaintiff. That offer was rejected by the first defendant. However, the first defendant finally accepted an offer of US$19 000-00. An agreement of sale was then drawn up and signed by both the plaintiff and the first defendant on 12 March 2010 and 16 March 2010 respectively.

Mazibiye said that upon asking for the Title Deeds of the property he was informed by the first defendant that the title deeds were being held by Hamilton who wanted her to clear their loan. She told him that she had borrowed a sum of US$5 000-00 from Hamilton. He said upon the request of the first defendant he had released a sum of US$10 000-00 from the purchase price so that the first defendant could pay off Hamilton’s loan in order for the title deeds to be released.

Mazibiye said out of the said US$10000-00 the first defendant paid a sum of US$9 200-00 to Hamilton and returned to Panavest US$800-00 together with the title deeds and the following documents:-

an agreement of sale of the property between her and Hamilton

a declaration by seller (herself)

a power of attorney to pass transfer, and

a consent to vacate

All the above documents, which were signed by the first defendant, were dated 25 November 2009.

The witness said he did not know Hamilton and had no business dealings with it.

Mazibiye went on to say he had then submitted the original title deeds to the conveyancers, namely Messrs Matsikidze and Mucheche. In addition to the title deeds he had also forwarded money for Capital Gains and rates. The balance of the purchase price amounting to US$6 889-00 was deposited in the first defendant’s account as per her instructions. Thereafter, the witness said, the conveyancers intimated that the first defendant was not willing to avail herself to ZIMRA for the usual interview to confirm the transaction. He said the first defendant had, however, not returned the purchase price paid by the plaintiff.

The plaintiff’s second witness, Kuipa, said he is a senior partner in Ernest and Young Chartered Accountants. He said the plaintiff, in which he is a Director, is a family investment vehicle.

His evidence was largely a confirmation of Mazibiye’s evidence. He said prior to making an offer for the property as advertised, he had viewed the property. At the property, he had found a tenant known as Carlos. He said he was not aware of the existence of Hamilton until the problem in casu arose.

Kuipa said upon Panavest showing him all the requisite documents for transfer, he had paid the transfer fees and had been interviewed by ZIMRA in June 2010. He said, the first defendant, had, however, not yet gone for the ZIMRA interview where she would confirm the purchase price to facilitate transfer. That, he said, was the reason for seeking an order to compel the first defendant to do what is necessary for the transfer of the property to take place.

Kuipa, said he did not know the first defendant. He admitted though that he had first met her at a Whimpy in Harare. He said this was after this problem had arisen. He said at their meeting the first defendant had not said she was no longer selling the property.

Kuipa insisted that prior to the signing of the agreement on 12 March 2010,  he not had known the first defendant. He also had not known Panavest and Hamilton.

The defendant was the only one who gave evidence on her own behalf. She said she has a degree in Social Sciences from Sofia University, Bulgavia and works as a social worker at Streetwise, Harare. She said Streetwise takes care of street kids.

The first defendant confirmed that she owned the property and that she had indeed signed all the documents relating to this matter. In brief, she said she had indeed signed all the documents produced, on behalf of the plaintiff, through Panavest.

The relevant documents relating to the agreement of Sale of 16 March 2010 were:-

the first defendant’s mandate in favour of Panavest

the agreement of sale between the first defendant and the plaintiff, dated 16 March 2010

the acknowledgement of receipt of US$10 000-00 dated on 16 March 2010

the power of attorney to make transfer dated 16 March 2010; and

the declaration by seller (Stamp Duties Regulations 1964) dated 16 March 2010.

The first defendant also confirmed that, prior to signing the above documents; she had also signed similar documents with Hamilton for the purpose of a loan of US$5000-00. The Hamilton documents, as already stated, were signed on 25 November 2009.

She said Hamilton, who she owed money, had advised her to approach Panavest for a loan to repay it. She said she had therefore approached Panavest for a loan and not for the purpose of selling her property. She went further to say if she wanted to sell the property, she would have sold it to Hamilton.

The witness placed a value of between US$25 000-00 and US$35 000-00 on the property and pointed out that her problems started at Hamilton. She said, notwithstanding her signature on the mandate, she had never appointed Panavest as her agent and had not agreed to a purchase price of US$20 000-00 since she never intended to sell her property. She said all she wanted from Panavest was a loan of US$9200-00 to enable her to pay off Hamilton for the retrieval of her title deeds. She said the terms of the loan had not been agreed.

In the main, the first defendant’s evidence was also a confirmation of the evidence given by the plaintiff’s witnesses. She, however, maintained her stance to the effect that, notwithstanding the true facts on the ground, she never had any intention to sell the property. That, she said, is why up to now she still refuses to go to ZIMRA for an interview to confirm the purchase price so that transfer could then be effected.

Mr Mawere for the plaintiff submitted that the evidence of the plaintiff’s witnesses went unchallenged and should therefore be accepted. He said the first defendant was evasive in her evidence and was unable to explain why if she only needed US$9 200-00 ‘to pay off US$5 000-00’ she could then proceed to sign for a loan of US$19 000-00. She could not divulge the terms of the loan agreement.

Given the admission by the first defendant that she signed all the papers relating to the agreement of sale on 16 March 2010, Mr Mawere, in his heads of argument, states:-

“2.3.	The law is very clear on the issue of signing of documents. That position

is better known in contract law as the “caveat subscriptor rule.”

2.4.	The caveat subscriptor rule is a rule which state that when a party signs a

contract or any other document, they are generally bound by what appears

in it, whether or not they have read or understood what appears on it. This

rule is expressed in the Latin maxim ‘caveat subscriptor’ meaning ‘let the

signor beware’.

2.5.	The doctrine is based on the principle of quasi-mutual assent, as was

stated in George v Fairmead (Pvt) Ltd 1958 (2) SA 465 (A);

“When a man is asked to put his signature to a document he cannot fail to realise that he is called upon to signify, by doing so, his assent to whatever words appear above his signature.”

2.6.	The first defendant admits being an educated person with a degree in

social sciences. She further admitted reading the sole mandate to sell,

agreement of sale and transfer documents before signing the.”

In order to demonstrate inconsistences in the first defendant’s story, Mr Mawere correctly observed that:-

“37.	The first defendant’s evidence in chief was also in total contrast to her summary of evidence wherein she said she never signed any agreement of sale and transfer documents pursuant to a sale of the property to the plaintiff. She said all the documents she signed were between herself and Hamilton Finance (Private) Limited.

38.	In her summary of evidence, the first defendant stated further that she was going to give evidence to the effect that;-

38.1.	 she never had any dealings with the plaintiff and or Panavest;

38.2.	 she does not even know the plaintiff and or Panavest; and

38.3.	 she never sold her property.

39.	The first defendant then gave evidence that she actually went to Panavest

to get a loan and that she dealt with Mr Mazibiye in her application for a

loan. She also gave evidence to effect that she actually met Fungai Kuipa

the plaintiff’s representative to talk about why she was not going to

ZIMRA for an interview. This is yet again another contradiction in her

evidence.

40.	The first defendant was clearly a dishonest witness who took very long to

answer simple questions under cross examination and changed her story so

many times on very important aspects of her evidence. For example she

said she first go to know that the property had been sold when she

brought the title deeds to Panavest on the 16th March 2010 and then

changed her story to say she got to know of the sale when she saw the

transfer of US$6 889.00 in her account which deposit was made on the

24th March 2010.

41.	On being asked by the court she admitted that she knew the property was

being sold when she was told by her nephew Carlos that the plaintiff’s

representatives Fungai Kuipa and a representative of Panavest had come

to view the property. She then admitted that she knew the property was

being sold before the 9th March 2010”.

Mr Mawere said given the fact that the plaintiff had complied with its obligation under a proven contract, there was no basis for the first defendant to resile from the contract. He urged the court to grant the relief sought by the plaintiff.

On the issue of costs, Mr Mawere’s view was that given the fact that it was never necessary for the plaintiff to approach the court on this matter because of lack of defence on the part of the first defendant, costs should be on higher scale and payable by the first defendant’s Legal Practitioner de bonis propriis. This was so because the Legal Practitioner appeared to have allowed the abuse of court process by the first defendant. An example cited was the summary of evidence which had no bearing on the case at all.

In his heads of Argument, Mr Hove, for the first defendant states, in part, as follows;-

“8. 	For the record, it is not being disputed that the first defendant signed the

documents that bear her signature. The issue for determination is whether in signing the said documents, the first defendant had the intention to dispose of her 	property. Paraphrased was there a meeting of the minds between the plaintiff and the first defendant when the parties were signing the respective agreements.

10.	The plaintiff dealt primarily with Panavest Properties (Pvt) Ltd whom she

believed to be Agents of the first defendant. The first defendant denies that

Panavest Properties (Pvt) Ltd were her Agents. In support thereof, the first defendant clearly states that:-

She never appointed the conveyancers being Messrs Mucheche-Matsikidze and Partners as her conveyancers. As the Seller, it was her prerogative to appoint the conveyancers.

Contrary to the Acknowledgement of Receipt on Page 7 of Exhibit 1, she never received US$10 000-00 as part payment. As was conceded by Mr Mazibiye, US$9 200-00 was paid to Hamilton Finance (Pvt) Ltd for release of the Title Deeds. This brings into focus the authenticity of the said documents. The said document makes reference to US$9 200-00. This clearly shows that the document is not a correct reflection of the transaction between the parties;

It was the first defendant’s evidence that she was never given the US$10 00-00, but that the said amount was carried by Panavest Properties (Pvt) Ltd’s employee who paid the amount to Hamilton Finance (Pvt) Ltd and brought back the change of the amount of US$800-00. Mr Mazibiye disputed this arguing that the first defendant brought back the change as she had been given the US$10 000-00. With respect, it is highly improbable that the first defendant would collect US$10 000-00, signed for the amount, go and pay US$9 200-00 and return the change of US$8 00-00 to Panavest Properties (Pvt) Ltd, as was stated by Mr Mazibiye. The first defendant’s version is more believable, namely that the employee of Panavest Properties (Pvt) Ltd conducted the whole transaction;

In the premises, it is submitted that the course of events is that there was never a meeting of the minds between the plaintiff and the first defendant. The parties never met during the negotiation process. Panavest Properties (Pvt) Ltd were the ones who handled all the transactions. There was an obvious misrepresentation of facts.

Given the fact that the first defendant accepts that the sum of US$9 200-00 she wanted from Panavest was indeed paid to Hamilton to clear her loan, I find the above submissions misplaced and being of no value. The money was paid to Hamilton who in turn released title deeds which she herself took to Panavest. She knew the title deeds were required for the conclusion of the transaction between her and the plaintiff, namely the sale of her property to the plaintiff.

Mr Hove also submitted that if the court were to find that there was a valid contract, the price of US$20 000-00 would clearly be in violation of section 44 of the Stamp Duties Act [Cap  23:09] which states;-

“Every contract, agreement or undertaking made for the purpose of

evading, defeating or frustrating the requirements of this Act as to the

stamping of instruments, or with a view to precluding objection or inquiry

relative to the due stamping of any instrument shall be void.”

He made the above submission on the basis that the first defendant valued the property at between US$25 000-00 and35 000-00.

Both parties have said a lot on a matter that I believe to be simple and straight forward. Facts, and evidence before me clearly prove that a valid agreement of sale was indeed entered into on 16 March 2010.

I have, however, not ignored what both parties have had to say. To that end I have deliberately quoted at length from heads of argument of both parties in order to show where the supposed disputes emanate from. In fact, my view is that the problem starts with the first defendant’s amended plea where she pleads, in part, as follows:-

“Save to state that the first defendant signed Annexure A, the first defendant denies that Annexure A is legally valid and binding. The first defendant avers that Annexure A is a fraud and was adduced through misrepresentation of the facts and the law and is accordingly void on the basis of fraud misrepresentation.

The first defendant avers that there was no meeting of the minds between the plaintiff and the first defendant. Accordingly the parties did not enter into a valid agreement.

The first defendant further avers that they never appointed Panavest Properties (Pvt) Ltd as their agents. Accordingly Panavest Properties had no written mandate to act on behalf of the first defendant.

The plaintiff is accordingly put to the strict proof of the fact that there was a meeting of the minds between the plaintiff and the first defendant and that Annexure A was not a result of fraud and misrepresentation on the part of Panavest Properties (Pvt) Ltd and or the plaintiff.

Annexure B is a fraud. The first defendant has no knowledge of the amount of US$19 000-00. The plaintiff and Panavest (Pvt) Ltd are accordingly put to the strict proof of the fact that the alleged $19 000-00 was the purchase price of the property and the said amount was paid towards the first defendant.

The first defendant further avers that the alleged Agreement of Sale is illegal and void, in that it is contrary to The Stamp Duties Act [Cap 23:09] section 44.”

The above plea should be looked at in terms of the concession made, namely that the first defendant does not dispute the signing of all documents except to argue that she had no intention to sell the property. The defendant is saying “yes, there is documentary evidence that I sold the property to the plaintiff but my intention was not to sell”. That cannot stand –and moreso where there is no evidence of fraud.

The complication in the dispute assumes yet another level when, in her summary of evidence, the first defendant states;-

“1. 	That she was introduced to a man called Frank Buyanga by a mutual

friend.

2.	The said Frank Buyanga was in the business of advancing loans, and the

first defendant wanted a loan of US$5 000-00.

3.	The first defendant clearly explained to Frank Buyanga that she wanted a

loan as bridging finance, and that she would repay the loan, on agreed

terms and conditions.

4.	Frank Buyanga then referred the first defendant to his company called

Hamilton Finance (Pvt) Ltd, which he said was one of his companies

5.	At Hamilton Finance (Pvt) Ltd, the first defendant again indicated that she

wanted a loan of US$5 000-00, and that she had been referred to them by

Frank Buyanga.

6.	Before Hamilton Finance (Pvt) Ltd could advance the loan, they requested

the first defendant to surrender her Title Deeds as security. It was mutually

agreed between Hamilton Finance (Pvt) Ltd and the first defendant that 			the Title Deeds were security.

7.	There was never an Agreement of Sale. The Title Deeds were to be

security.

8.	Hamilton Finance (Pvt) Ltd invited the first defendant to sign various

documents, which documents the first defendant believed were security

documents for 	the loan. The said documents were between the first

defendant and Hamilton Finance (Pvt) Ltd.

9.	Accordingly, considering that the loan was only US$5 000-00, the first

defendant could not have signed Agreement of Sale documents. The first

defendant never intended to sell her property.

10.	The first defendant will state that:-

i)  She never had any dealings with the plaintiff and or Panavest (Pvt) Ltd.

ii)  She does not even know the plaintiff and or Panavest (Pvt) Ltd.

iii) She never sold the property.

11.	The first defendant will state that she is prepared to refund Hamilton

Finance ( Pvt) Ltd and or the plaintiff, the monies that she received, plus

interest.”

I can hardly understand how the above ‘facts’ could ever have any relevance to the plaintiff’s distinct case against the first defendant. The plaintiffs’ claim is anchored on the agreement of sale signed on 16 March 2010. Probably the only value to be obtained from the above is that, notwithstanding the papers signed between the first defendant and Hamilton on 25 November 2009 in respect of a loan for US$5000-00, the property, as at 16 March 2010, was still available for sale to the plaintiff and indeed the plaintiff bought it.

I boldly say this is a simple matter because if you delink Hamilton from the parties’ agreement signed on 16 March 2010, as indeed one should do, the issues, if any, before this court become much clearer.

Except for facts pointing to the position that, at the time of the agreement on 16 March 2010, the title deeds  to the property were in the custody of Hamilton and needed to be retrieved by way of the first defendant paying off a prior loan (ie between the first defendant and Hamilton), there is nothing, in my view, that brings Hamilton into this case so as to vitiate the agreement of sale between the plaintiff and the first defendant. The fact that the proceeds from the sale of the property were used to pay off Hamilton’s loan does not create any kind of relationship between Hamilton and the plaintiff. The plaintiff had a valid stand alone agreement of sale with the first defendant. Hamilton does not come into that agreement and the plaintiff has nothing to do with the relationship between the first defendant and Hamilton.

In the face of what she signed for on 16 March 2010, I was unable to get anything else that could persuade me to allow the first defendant to resile from the agreement of sale. All the elements of a valid contract were complied with. Educated as she is, she cannot come to court today and tell the world that a sale that was concluded after public advertisement in the Herald on 8 March 2010 was clandestinely done to the point of being a fraud. Nothing in the papers and evidence adduced points to that. There is no single piece of evidence suggesting fraud in this case. There is also no evidence that the parties wanted to evade statutory requirements.

It is also important to note that as at 4 November 2010, the first defendant was not denying the agreement but was prepared to resolve the matter amicably. Her Legal Practitioners wrote;-

“RE:	RAMANGWANA INVESTMENTS (PVT) LTD VS MS D. MUBVUMBI

Your letter dated 11th October 2010 addressed to the above mentioned has been

forwarded to us for auctioning and reply. Kindly note our interest therein.

To enable us to properly advise our client, kindly favour us with copies of the

following documents:-

Agreement of Sale (signed by clients)

Power of Attorney to Pass Transfer (signed by our client)

Declaration by seller

Relevant copies of all communication between the Seller (our client) and you client.

For the record, our client advices that she would like to resolve this matter without the need for litigation, hence our request for the said documents.

We are further advised that there was a deposit of approximately US$6 800-00 that was made into our client’s account. Please advise whether the said deposit of US$6 800-00 represents part of the purchase price.”( my own underlining for emphasis)

Actually there was no reason to ask if US$6889-00 was part of the purchase price. The statement of account which the first defendant received on 24 March 2010 was clear. The statement gave the following details:-

Furthermore, one wonders why the first defendant, who got the above clear statement on 24 March 2010, would only approach her legal practitioners on 4 November 2010. The statement confirms the sale of the property.

If indeed the first defendant was denying the transaction, the above letter would have said so. The first defendant	 had already started discussing the matter with all concerned and could have taken a clear position by the time the above letter was written.

The first defendant did not impress me as someone who could be relied on when it came to the question of truth. This was the opposite when it came to the plaintiff’s witnesses. You cannot take anything away from them. They gave their evidence professionally and confidently.

All in all, I am unable to accept that the first defendant signed the agreement of 16 March 2010 without the intention to sell the property. She has not produced any evidence to prove a contrary intention. Accordingly, this court will respect the sanctity of contracts. Furthermore, the attempt to condemn the contract on the ground that it contravened the law was never backed by evidence and cannot therefore stand. In the circumstances the relief sought ought to be granted.( See Intercontinental Trading (Pvt) Ltd v Nestle Zimbabwe (Pvt) Ltd 1993 (1) ZLR 21 (H).)

On the question of costs, whilst I agree that this matter should not have been brought to court, I want to acknowledge that there has been a general problem with cases connected to Mr Buyanga and his companies. I am aware that the first defendant’s Legal Practitioner is seized with a number of such cases. That in my view could have influenced the first defendants’ Legal Practitioner in entertaining this case in the manner he did. However, as I have shown, facts in casu clearly distinguish this case from the Buyanga story given by the first defendant in the summary of her evidence. The evidence in casu clearly demonstrates that, except for the purposes of this agreement of sale, there was no other link whatsoever between the plaintiff and Panavest. The plaintiff acted  independently until advised of the existence of Hamilton. In any case there is a huge difference between US$5000-00 (loan) and US$19000-00 (purchase price). There was no evidence that Panavest had gone into the loans business. There was evidence that it was in the business of selling properties. This was an advertised sale and I have no reason not to believe that the offer of US$18500-00, which was rejected by the first defendant, was based on market value and so was the agreed purchase price of US$19000-00. Added to that, the offer was coming from a Chartered Accountant who had viewed the property. Indeed the same could not have been said in connection with the Hamilton scenario which the first defendant wanted to introduce in casu. On that score I blame the Legal Practitioner. He should have seen the distinction. I would in the circumstances find it unjustifiable not to order costs on a higher scale.

I therefore order as follows:-

The first defendant be and is hereby ordered to take all necessary steps required in order to effect transfer to the plaintiff of the property known as undivided 0.85% share being share number 35 of Stand 16743 Salisbury Township, measuring 6 578 square metres and held under Deed of Transfer Number 8783/2003 within 7 days of service of this order.

In the event that the first defendant fails to comply with provisions of paragraph (1) above, the Deputy Sheriff Harare be and is hereby authorised to sign all necessary documents to effect transfer of the property namely an undivided 0.85% share being share number 35 of Stand 16743 Salisbury Township, measuring 6 578 square metres and held under Deed of Transfer Number 8783/2003 into the plaintiff’s name, and

The first defendant shall pay costs on a legal practitioner and client scale.

Messrs Mawere & Sibanda, plaintiff’s legal practitioners

Messrs T.K. Hove and Partners, 1st defendant’s legal practitioners