Origen Corporation t/a Nurfert (Pvt) Ltd v Xsigma Corporation (Pvt) Limited

The plaintiff and defendant entered into a fertilizer supply agreement in March 2017. The agreement required the plaintiff to provide a local bank guarantee of US$250,000 as security for payment obligations, with payment due within 180 days of delivery. The plaintiff provided a guarantee which was rejected by the defendant. Despite this, the plaintiff claimed it made an order for 300 tonnes of urea fertilizer and paid US$124,500 on 22 August 2017. The defendant failed to deliver the fertilizer. The plaintiff sued for restitution of the US$124,500 plus interest and costs. The defendant denied liability, arguing the written supply agreement was not consummated due to lack of an acceptable guarantee, and that the payment related to a different agreement which had been satisfied.

• Whether the plaintiff paid the defendant US$124,500 as alleged
• Whether there was a consummated agreement for the sale of fertilizer for the amount alleged
• Whether the defendant delivered fertilizer as alleged in the plea
• Whether the supply agreement was varied by the parties
• Whether absolution from the instance should be granted at the close of the plaintiff's case

1. The application for absolution from the instance was granted. 2. The plaintiff was ordered to pay the defendant's costs.

Where a plaintiff relies on a written agreement to found its claim but the essential conditions precedent to that agreement (such as provision of a required bank guarantee) were not fulfilled, the agreement is not consummated and cannot support a claim for breach. A plaintiff cannot succeed where there are irreconcilable contradictions between its pleadings (which assert one contractual basis) and its evidence (which suggests a different contractual arrangement), particularly where no variation of the written contract has been pleaded or proven. Absolution from the instance will be granted where the plaintiff's case, standing alone without reference to the defendant's evidence, fails to establish the essential elements of the claim due to internal contradictions and failure to prove the existence of a valid, consummated contract.

The court endorsed the four-part test from MC Plumbing (Pvt) Ltd v Hualong Construction (Pvt) Ltd HH 88/15 for determining whether to grant absolution from the instance: (1) whether there is evidence upon which a court could reasonably find for the plaintiff; (2) whether there are special considerations to reject the plaintiff's evidence (such as glaring inconsistencies or unacceptable variance with pleadings); (3) whether the plaintiff failed to adduce evidence on essential elements of the claim; and (4) whether an overall assessment of all evidence falls short of establishing a prima facie case. The court noted that courts are slow to discharge matters without hearing the defendant's evidence, but emphasized that a plaintiff's case must be able to stand on its own. The court also observed that it would be a misnomer to analyze the defendant's case when considering absolution from the instance, as the test applies solely to the plaintiff's case as presented.

This case reinforces important principles in Zimbabwean contract law and civil procedure: (1) the requirement for clarity and consistency between pleadings and evidence; (2) the principle that courts do not make or rewrite contracts for parties but only interpret and enforce them; (3) the proper application of the test for absolution from the instance at the close of the plaintiff's case; (4) that a plaintiff's case must be able to stand on its own without support from the defendant's evidence; and (5) that where a party alleges breach of a written contract, they must establish the contract was validly formed, consummated, and that they complied with its terms. The case demonstrates that contradictions between pleadings (which relied on a written supply agreement) and evidence (which suggested an oral agreement with different terms) can be fatal to a plaintiff's case.