(1) DOUGLAS TANYANYIWA (2) DOUGLAS WARRIORS FOOTBALL CLUB
LAWRENCE BERNARD GWARADA
SUPREME COURT OF ZIMBABWE
ZIYAMBI JA, GOWORA JA & GUVAVA JA,
HARARE, MAY 23, 2014
M Kamdefwere, for the appellants
Adv. L Mazonde, for the respondent
ZIYAMBI JA: This is an appeal against a judgment of the High Court (MUTEMA J) granting the respondent’s claim against the appellants for payment of $72 340.00 as well as interest at the prescribed rate from the date of summons to the date of payment in full.
The history of the matter is as follows. The plaintiff runs a tour operator company under the name and style of LED Travel and Tours (Private) Limited. The first appellant owns Douglas Car Sales (Private) Limited and is also the owner of the second appellant (“the club”). At the time of occurrence of the events giving rise to this case, the respondent was treasurer of the second appellant.
In or about December 2008 the first appellant was experiencing considerable difficulty in running the second appellant due to financial constraints. He intimated to the respondent his intention to sell the second appellant’s franchise or seek a partnership in order to lessen the financial burden then bedeviling him. The two subsequently concluded a partnership agreement in terms of which the respondent was to purchase 40 000 shares valued at $49 000.00 representing a 49% stake in the second appellant while the first appellant would retain the balance. 40% of the shares would be paid for by the respondent in 2009 while the balance of 9% would be paid for in January 2010. During 2009, the respondent and the first appellant would contribute to the running costs of the second appellant in the ratio of 40% and 60% respectively based on their respective ‘shareholding’.
By 10 October 2009, the respondent had paid, to the first appellant, the sum of $36 807.00 towards the purchase of his 40% of the shares and $35 533.00 being his pro rata contribution to the running costs of the second appellant. Then, approximately one month later, in November 2009 the deal collapsed. The cause of the collapse is the basis of the dispute between the parties.
The respondent alleged that the collapse occurred when the first appellant, contrary to the terms of their agreement began to claim that the ‘partnership’ was for the 2009 season only. His contention is that there was no life limit placed on the partnership; that shares could not be bought for one season only; and that purchased shares must be transferred to the buyer. He therefore instituted summons claiming the amounts paid by him under the agreement.
The appellants, on the other hand, were adamant that the alleged partnership was to endure for the 2009 season only and that the respondent was in breach of the agreement by failing to pay the balance of the 40% shareholding. They filed a counterclaim for a total of $32 953.80 comprising of $3 193 being the balance outstanding on the purchase of the shares for the 2009 season and $29 760.80 being a contribution to administrative costs for the 2009 football season. At the trial which followed, the learned Judge disbelieved the evidence of the appellants and their witnesses and granted the order as prayed by the respondent.