Tonota Capital Partners (Pvt) Ltd and Deat Capital (Pvt) Ltd v Central Africa Building Society

The defendant, Central Africa Building Society (CABS), mandated two separate companies to secure lines of credit on its behalf. The first plaintiff was retained on 29 July 2011 as the defendant's financial advisor to secure funding for capital expenditure and working capital requirements, with a success fee of 1% of capital raised. In November 2011, the first plaintiff submitted a credit request to the African Development Bank (AFDB) for USD$50 million and continued engaging AFDB, eventually proposing a syndicated or co-financing arrangement with other international lenders including PTA Bank. The second plaintiff was mandated on 22 September 2014 to raise USD$25 million trade finance line of credit with AFDB, with a fee of 0.5% of the amount raised. The defendant did not disclose to either plaintiff that it had mandated the other. In April 2016, AFDB approved a USD$25 million trade facility to the defendant. Both plaintiffs claimed to have secured this facility and sought payment of their respective fees. The defendant conceded it owed payment to one of the plaintiffs but could not identify which one was entitled to payment, leading to the consolidation of the two claims.

• Which plaintiff secured the USD$25 million line of credit from AFDB on behalf of the defendant and is therefore entitled to payment?
• From what date should interest on the outstanding fees commence?
• What evidence is required to discharge the onus of proof when competing claims exist for the same payment?
• Whether a defendant's concession in pleadings remains binding when a third party makes a competing claim

1. Judgment entered in favour of the first plaintiff against the defendant for: (a) USD$50,000.00 being term sheet milestone fees; (b) Interest at the rate of 2.45% per month from 24 June 2016 to date of full and final payment; and (c) Costs of suit. 2. The second plaintiff's claim against the defendant was dismissed with costs.

When multiple parties claim entitlement to the same payment arising from a single transaction, each claimant bears the onus of proving on a balance of probabilities that they performed the services for which payment is claimed. A defendant's concession in favor of one claimant in pleadings does not relieve that claimant of the burden of proof when competing claims are consolidated for hearing. The court must examine the totality of evidence to determine which party actually performed the services and is entitled to payment. In determining entitlement to commission for securing credit facilities, the court will examine the nature of the facility secured (bilateral versus co-financing/syndicated) and match this to the evidence of each claimant's activities and engagements with lenders. What is not denied in affidavits or evidence must be taken as admitted, and where detailed evidence is not challenged, it strengthens the case of the party presenting such evidence.

The court expressed strong views on the quality of evidence presented by the witnesses, noting that the first plaintiff's witness was "impressive," "honest," and provided evidence in a "clear and detailed manner," while the second plaintiff's witness was "dodgy," failed to refer to any documents, and "struck me as someone who wanted to reap where he did not sow." The court also observed that costs should follow the event as a general principle, citing Smiths Super Track (Pvt) Ltd v Zimbabwe Electricity Transmission Distribution Company (Pvt) Ltd HH 190/17. The court noted that had the plaintiffs approached different lenders, there would not have been a problem, but the issue arose because both claimed to have secured the same single transaction. The court also made observations about the nature of co-financing, explaining that it describes financing in which different lenders agree to fund under the same documentation and security packages but may have different interest rates, repayment profiles and terms.

This case is significant in Zimbabwean commercial law for establishing principles regarding competing claims for commission or success fees arising from the same transaction. It clarifies that when a defendant mandates multiple agents for the same purpose without disclosure, and those agents subsequently make competing claims, each claimant bears the onus of proving their entitlement on a balance of probabilities. The case also demonstrates the importance of detailed documentary evidence in establishing performance of contractual obligations, particularly in complex financial advisory and intermediary arrangements. It establishes that a defendant's concession in pleadings does not automatically determine the outcome when third-party competing claims are consolidated, as the court must consider the totality of evidence. The judgment reinforces the principle that parties claiming entitlement to fees must provide a clear evidentiary trail of their activities and contribution to the successful outcome.