Fidelis Munyoro Chief Court Reporter
South Africa-based Zimbabwean businessman Dr Ephrem Whingwiri has lost the case in which he was suing a business partner to recover US$100 000 he invested in a joint fuel deal that went sour.Dr Whingiri had sued business partner Mr John Jani at the High Court, seeking to recover the money he invested in the joint venture seven years ago.
But Justice Priscilla Chigumba dismissed the claim saying Dr Whingwiri sued a wrong person in the case.
She said Dr Whingwiri should have sued Mr Jani’s company Mauriboard, which was used as a vehicle to make the venture a success because it was a separate and distinct legal persona from Mr Jani.
“For this reason, I find that the plaintiff has failed to discharge the onus incumbent upon him to adduce sufficient evidence on a balance of probabilities, that he entered into a joint venture agreement with the defendant, in terms of which he is owed the amount claimed in terms of the summons,” said Justice Chigumba throwing out the claim.
Dr Whingwiri issued out summons in April 2009 claiming US$100 000 being a refund of a capital injection into the joint fuel business venture that he entered into with Mr Jani in March 2007.
He also claimed US$16 000 as half share of the projected net profit from the joint business venture.
According to the deal, Dr Whingwiri was to provide US$100 000 to buy fuel from the Independent Petroleum Group and to transport it to Zimbabwe for re-sale at a profit.
Mr Jani’s role in terms of the verbal agreement was to sell the fuel in Zimbabwe after which the two would share the profit after reimbursing Dr Whingwiri.
The court found both Dr Whingwiri and Mr Jani were untruthful and evasive witnesses because of the nature of the transactions they entered into during the time the economy was in free fall.
“The court can only surmise that the so-called joint venture was an agreement that was a sham,” said Justice Chigumba.
“The parties clearly ventured into an agreement to buy fuel and sell it in Zimbabwe. It is my view that not only was the prospect of illegal conduct contemplated by the plaintiff and defendant. They relished it.”
She said Dr Whingwiri knew that both himself and Mr Jani used Mauriboard as a front for their activities and should have sued the company, which bought the fuel and possessor of a government issued fuel trading licence.
Advocate Tawanda Zhuwarara represented Mr Jani, while Mr Terrence Hove of Musunga and Associates acted for Dr Whingwiri.