The Trustees for the Time Being of Cornerstone Trust and Others v NMB Bank Limited

The second appellant was a shareholder, former CEO, Executive Director and Director of the respondent bank. The respondent issued summons claiming USD$1,105,748.90 arising from a loan agreement with the first appellant (Cornerstone Trust). The second and third appellants bound themselves as guarantors/sureties and co-principal debtors. As security, the second appellant gave Power of Attorney to register a mortgage bond over his property, and the third appellant pledged executable shares. The respondent alleged the first appellant defaulted on the loan agreement. The appellants disputed the claim on two main grounds: (1) that the person who purported to enter into the loan agreement (Mr D. Higginson) was not authorized to do so, and (2) the second appellant disputed granting the Power of Attorney used to register the mortgage bond. The appellants lodged a counterclaim which they later sought to withdraw during proceedings, but the application was unsuccessful and the counterclaim was dismissed. The High Court made adverse credibility findings against the second appellant, found the first appellant was his alter ego used to secure funds for his personal benefit, and held all appellants jointly and severally liable.

• Whether the court a quo erred in dismissing the first appellant's counterclaim after the appellants sought to withdraw it before the conclusion of leading evidence
• Whether a party can withdraw a claim after the matter has been set down for hearing and proceedings have commenced
• Whether the court a quo misdirected itself in holding the appellants jointly and severally liable for the indebtedness arising from the loan facility agreement
• Whether the loan facility agreement was validly concluded given the alleged lack of authority of the person who signed on behalf of the first appellant
• Whether the first appellant was merely the alter ego of the second appellant for purposes of accessing funds
• Whether the second appellant validly granted the Power of Attorney to register the mortgage bond
• Whether the appellate court should interfere with factual findings of the trial court

The appeal was dismissed with costs following the cause. The judgment of the High Court was upheld in its entirety, including the order for joint and several liability of the appellants for payment of USD$1,105,748.90 plus interest at 15% per annum, collection commission, costs on the legal practitioner and client scale, and the declaration that the immovable property (Remainder of Lot 6 Rietfontein) held under Deed of Transfer No. 4388/1991 is executable.

The binding legal principles established are: (1) A party cannot withdraw proceedings at will after a matter has been set down for hearing and the hearing has commenced; withdrawal requires either consent of the other party or leave of the court (Rule 53(2) of the Rules). Courts have wide discretionary powers in determining whether to grant applications for withdrawal, including consideration of whether evidence has already been substantively led. (2) A litigant cannot be allowed to approbate and reprobate - a party cannot benefit from an agreement while simultaneously disputing its validity. To do so constitutes mala fides. (3) An appellate court will only interfere with factual findings of a trial court where the findings are so irrational that no reasonable tribunal, faced with the same facts, would have arrived at such a conclusion. (4) What is not denied in pleadings or evidence is taken to be admitted. (5) Where a trust or corporate entity is used as an alter ego or vehicle to access funds for personal benefit, particularly in circumstances involving conflicts of interest and abuse of position, the court will look beyond the legal personality to the substance of the transaction.

The Court made observations about the second appellant's conduct amounting to a conflict of interest as both Founder and Director of the first appellant and a director of the respondent bank, noting he was "not only involved in a conflict of interest but actively abusing his status and position in order to access funds from the respondent." The Court also noted it was "telling" that the loan facility was regarded as an "insider loan" by the respondent and that the second appellant did not dispute this characterization, though this was not strictly necessary for the decision. The Court observed that "had the loan agreement been improperly concluded, the second appellant would have, at the very first opportunity have alerted the respondent to the fact and sought to resolve the situation" rather than accessing and deriving benefit from it before denying liability.

This case is significant for establishing important principles in Zimbabwean commercial and procedural law: (1) it reinforces the principle that withdrawal of claims after commencement of hearings requires either consent of the other party or leave of the court, and courts have wide discretion to refuse withdrawal where evidence has already been substantively led; (2) it applies the doctrine against approbation and reprobation, holding that a party cannot derive benefits from an agreement while simultaneously disputing its validity - such conduct amounts to mala fides; (3) it demonstrates the court's willingness to pierce the corporate veil and find that a trust or company is being used as an alter ego when evidence establishes personal benefit and abuse of position; (4) it illustrates the principles governing when an appellate court will interfere with factual findings of a trial court, reinforcing that interference is only justified where findings are so irrational that no reasonable tribunal would have reached the same conclusion; and (5) it addresses conflicts of interest in banking relationships, particularly "insider loans" where directors use their positions to obtain benefits from the institutions they serve.