Prime Fisheries v Shepherd Charehwa

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                                                                                CIV ‘A’ 344/17




PRIME FISHERIES
versus
SHEPHERD CHAREHWA



HIGH COURT OF ZIMBABWE
CHITAKUNYE & CHIRAWU-MUGOMBA JJ
HARARE, 25 September 2018 and 1, 2 October 2018 & 10 October 2018




Civil Appeal



O D Mawadze, for the appellant
T Goro, for the respondent


        CHIRAWU-MUGOMBA J: The appellant noted an appeal against the judgement of
the magistrate sitting at Kariba in terms of which the appellant’s claim for $10.000 was
dismissed with costs. At the hearing, O.D Mawadze for the appellant indicated that the
grounds of appeal had been consolidated and hence there were now only two as follows:

   a. Whether or not there was a misdirection in disregarding the written agreement
       between the appellant and the respondent.

   b. Whether or not the appellant had locus standi to claim for statutory fees and unpaid
       fines and if so, whether these had been proven on a balance of probabilities.

     The background to this matter is as follows:
       Sometime in November 2013, the appellant and the respondent entered into a written
lease agreement in terms of which the appellant leased a kapenta fishing rig KF 143 to the
respondent. The initial time frame was six months with an option of renewal upon successful
performance. The lease fee was pegged at $800 per month payable on or before the last day
of every calendar month. In December 2014, the appellant issued summons against the
respondent claiming $2060 being boat rentals due and owing and $7940 being outstanding
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National Parks permit fees and deposit fines. In his plea, the respondent denied the claim and
prayed for its dismissal with costs. The Magistrate dismissed the claim on the basis that the
lease agreement required endorsement from National Parks in order to be valid and that the
appellant lacked locus standi to claim the $7940 since it was not a representative of National
Parks and had also not produced any document authorising it to claim this amount.
        In his submissions, O.D Mawadze averred that the cause of action was based on an
agreement and the court a quo was bound to interpret it and give it legal effect. Instead the
court invalidated the agreement by making the endorsement of a third party necessary in
order to validate the lease agreement and this was a clear misdirection. After the six months
period, the agreement was extended on the same terms and conditions. The respondent
continued to use the appellant’s boat but sought to shirk away from his responsibility of
paying rentals by claiming that the relationship had been turned into a partnership. However,
the respondent failed to prove the existence of the partnership let alone spell out the terms
and conditions. He averred that the appellant had locus standi to claim as it did from the
respondent. When the appellant and the respondent entered into their lease agreement, there
was already in existence a contract between appellant and National Parks. The account at the
latter was in the name of the appellant and so were the licence and the permits. Any statutory
fees or fines that would accrue would be in the name of the appellant. Even if the respondent
entered into a payment plan with National Parks, this would not absolve the appellant from
paying the statutory dues in terms of the National Parks and Wildlife Act [Chapter 20:14].
He prayed for costs on higher scale on the basis that the respondent in the lower court had no
defence and still even opposed the appeal and had made no concessions.
       In response, T Goro for the respondent averred that the court a quo did not completely
disregard the lease agreement. He conceded that there was a valid lease agreement between
the appellant and the respondent as per exhibit one. He conceded that the appellant had locus
standi to make a claim for statutory fees and unpaid fines against the appellant but the second
rung of the inquiry was whether or not the appellant had proved its claim? He averred that
after the expiry of the six months agreement, the parties entered into a partnership. He
averred that the lower court was correct in dismissing the appellant’s claim. The respondent
had denied the existence of the debt and the onus was on the appellant to prove. He submitted
that there was no evidence even in the form of a statement of account from National Parks to
prove the claim on the permit fees and deposit fines. There was also no proof whether or not
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the $2060 unpaid boat rental had accrued during the initial six months period or the disputed
period.
             In response, O. D Mawadze drew a distinction between locus standi and failure to
prove claim. The lower court had not considered the issue of the amount being sought simply
because it held that the appellant had no locus standi to claim $7940 for outstanding parks
permit fees and deposit fines.
          In my view, the appeal turns on these issues;-

   a. Did the lease agreement continue on the same terms after the specified six months
          period or the parties entered into a partnership instead.

   b. Does the appellant have locus standi to sue for National Parks permit fees and deposit
          fines?

            The second issue is not difficult to deal with since at the hearing, the respondent’s
legal practitioner conceded that the appellant had locus standi to claim the permit fees and
deposit fines. This concession was well made in view of the fact that the memorandum of
agreement entered into by the parties clearly stipulated in clause six that the respondent was
to be responsible for the payment of the annual permit fees or part thereof. It is clear that
there was no contract between the respondent and National Parks and even if there was a
payment plan in respect of the arrears, this did not take away this fact. The respondent would
as a matter of fact be using the appellant’s license to make the payment. The finding by the
magistrate that the appellant had no locus standi was therefore erroneous.
           The issues of whether or not the lease agreement continued after the expiration of the
six months or whether or not a partnership was entered into instead are inextricably linked. A
partnership was described in Rhodesia Railways and others vs. Commissioner of Taxes 1925
AD 438 at 465 as follows:
          “First, that each of the partners brings something into the partnership, or binds himself to
          bring something into it, whether it be money, or his labour or skill. The second essential is
          that the business should be carried for the joint benefit of both parties. The third is that the
          object should be to make a profit. Finally, the contract between the parties should be a
          legitimate contract. Where all these four essentials are present, in the absence of something
          showing that the contract between the parties is not an agreement of partnership, the court
          must come to the conclusion that it is a partnership. It makes no difference what the parties
          have chosen to call it; whether they call it a joint venture, or letting and hiring. The court has
          to decide what the real agreement between them is”
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     It is the respondent who alleged the existence of a partnership. From the evidence led in
the lower court, the respondent failed to prove the existence of one. In his evidence-in-chief
which appears on p 17 of the record, the respondent merely averred that after the six months
period, the relationship turned into a partnership. He did not give any further details regarding
this alleged partnership. Under cross examination, he also failed to give details regarding this
partnership. The only inference that can be drawn is that there was no partnership as alleged.
The evidence instead points to the continuation of the lease agreement. Clause 4 of the
agreement stated the specific period as being from 1 October 2013 to 31 March 2014 and this
was also subject to renewal upon successful performance. Clause 13 specified that in the
event of either party wishing to terminate the agreement, written notice was to be given to the
other party. No proof of such written notice was proffered. The appellant’s representative
authored a letter to Lake Kariba Fisheries dated 26 November 2013 in which he indicated that
the fishing rig KF 143 was to operate under the management of the respondent with effect
from 25 November 2013 until further notice. The appellant’s evidence that the boat was
actually leased to the respondent from October 2013 to 8 January 2015 was never challenged.
The respondent actually confirmed that he used the boat up to 8 January 2015 though he
claimed that it was now a partnership. I therefore find that the lease agreement which was for
an initial six months period continued on the same terms and conditions as specified.
         The appellant urged the court to find that the claim for $10 000 had been proved. A
perusal of the record reveals that many figures were thrown into the fray. What is pertinent to
note however is that the magistrate in the court a quo held that the lease agreement between
the appellant and the respondent was not binding since it had not been stamped by National
Parks. The magistrate erred in that regard. The magistrate also held that the appellant had no
locus standi to claim for the permit fees and deposit fines tickets. As already stated, the
magistrate erred in that regard. Based on the errors, the magistrate did not consider the issue
of quantum. The evidence in the record is not adequate for the court to make a determination
on the issue of quantum.
         The appellant sought costs on a legal-practitioner to client scale. It is trite that costs
are always at the discretion of the court. The respondent has a constitutional right to defend
himself before the courts of law. He cannot be said to have acted maliciously. In any event,
the issue of quantum still needs to be determined.
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       In the result, it is ordered as follows:

   1. The matter be and is hereby remitted to the Magistrate Court for evidence to be heard
       on quantum.

   2. The respondent shall pay the costs.



CHITAKUNYE J agrees ……………………



Mawadze and Mujaya Legal Practitioners, appellant’s legal practitioners
Mbidzo Muchadehama and Makoni, respondent’s legal practitioners