Marick Trading (Private) Limited v Double T. Services (Private) Limited

The plaintiff and defendant entered into an oil extracting business partnership in January 2009, operating from the basement of 29 Coventry Road, Harare. The plaintiff held a lease agreement with Old Mutual for the entire premises. A rent dispute arose between the plaintiff and Old Mutual regarding rentals payable after dollarization. The plaintiff claimed that the parties agreed that rent for the whole premises would be a partnership expense shared equally, and that they agreed to jointly participate in the rent dispute. An arbitral award was made in favor of Old Mutual in December 2011, which the plaintiff paid in full (USD$75,000) after borrowing from a bank. The partnership was dissolved in March 2010. The plaintiff claimed USD$42,619.55 from the defendant, being 50% of the total amount paid to Old Mutual including rentals, interest, and legal costs. The defendant denied agreeing that rent would be a partnership expense, claiming it was merely a subtenant occupying only about a quarter of the building, and that it never agreed to jointly participate in the rent dispute.

• Whether the parties agreed that rentals payable to Old Mutual would be a partnership expense
• Whether the parties agreed to jointly participate in the rent dispute with Old Mutual
• What extra rentals, interest and costs were payable by plaintiff to Old Mutual as a result of the arbitral award
• Whether the plaintiff was negligent in conducting the arbitral proceedings

The plaintiff's claim was dismissed with costs.

Where parties enter into an oral partnership agreement, the party alleging that a particular expense (such as rent for premises already leased for separate businesses) constitutes a partnership expense bears the onus of proving on a balance of probabilities that there was consensus ad idem on this term. In the absence of express agreement, the court will examine the conduct and words of the parties to determine whether their minds truly met. Continued protest by one party against deductions and lack of consultation throughout litigation proceedings are inconsistent with an agreement to share such expenses or jointly participate in disputes. Where a partnership occupies only a fraction of premises already leased for the parties' separate businesses, specific agreement is required to establish that rent for the entire premises becomes a partnership expense, as the circumstances require clarity to avoid assumptions by each party.

The court observed that in the absence of a written partnership agreement, it is particularly important for partners to clearly and unambiguously agree on critical terms, especially where there are pre-existing arrangements that could create confusion. The court noted that the relationship between partners is similar to that between brothers, requiring utmost good faith. The court also commented that it would have been logical for the parties to discuss the ongoing rent dispute when dissolving their partnership in March 2010, and the failure to do so suggested there was never a joint obligation. The court indicated that Old Mutual's refusal to allow joint tenancy (as alleged by the plaintiff) lacked a clear explanation and that evidence from Old Mutual would have assisted in clarifying the tenancy arrangement.

This case establishes important principles regarding the interpretation of partnership agreements in Zimbabwe, particularly regarding implied terms and the burden of proof in oral agreements. It emphasizes that where parties enter into a partnership while already having existing separate business arrangements, clarity is required regarding which expenses relate to the partnership and which to the separate businesses. The case demonstrates the importance of consensus ad idem (meeting of minds) in contract formation, and that conduct of parties can be examined to determine whether true agreement existed. It also reinforces that partners must display utmost good faith and consult each other on matters affecting the partnership, and failure to do so may indicate absence of agreement on joint obligations.