…Harare High Court Commercial Crimes Division Justice Mushure accuses the plaintiffs (the Dube couple) of being dishonest litigants

Ngoni Dapira

THE curtain finally came down last week Tuesday in the longstanding Clique Pharmacy directors’ wrangle, after Harare High Court Commercial Division Justice Faith Mushure delivered her judgement that flipped the script for the plaintiffs, Simbarashe Mushambi Dube and his wife Paula Dube.

It took nearly eight months of waiting for the ruling since the trial that took place last year in August and the results came in a 56-paged judgement that was well elaborated to the dot that even a kindergarten child would easily understand. The complainants, Simbarashe Mushambi Dube, the first plaintiff and his wife Paula Dube, the second plaintiff, lost the case which was dismissed with costs.

Initially, the Dube’s were claiming US$ US$284 036.21 from the first defendant, Douglas Nzombe Chiutsi, who was the third director at the once popular Mutare based pharmacy, Healthwell Pharmacy (Pvt) Ltd that traded as Clique Pharmacy, which is the second defendant in this case. The plaintiffs purported Chiutsi stole US$284 036.21 worth of drugs purchased from fictitious suppliers which were never received by Clique Pharmacy. They also claimed US$15 621.37 allegedly stolen through procurement fraud committed through the generation of fictitious goods received vouchers without invoices and proof of delivery of the drugs. The Dube’s alleged that Chiutsi was expected to act in the best interests of Clique Pharmacy but from August 2021 to March 2024, he misappropriated funds as outlined above.

In her judgement introduction Justice Mushure said Chiutsi was arrested for the alleged crime and spent a week at Mutare Remand Prison only to be released on 2 July 2024 following an act of ‘leniency’ by the first plaintiff. However, a meeting was urgently called by the first plaintiff through some of Chiutsi’s family and friends. The meeting on 3 July 2024 led to the signing of a document which Chiutsi said he signed under duress and was not is a good mental state of mind just after spending a week locked up in remand prison.

The Dube’s however used the signed document of 3 July 2024 to initiate legal suit. In the document Chiutsi had acknowledged that he had prejudiced the second defendant in the sum of US$258 708. The plaintiffs alleged that they had managed to recover US$40 000 from the first defendant and consequently, the first defendant was liable to pay US$160 770.57 being damages suffered by the plaintiffs as a result of the first defendant’s breach of loyalty in executing his duties, as required by s55 of the Companies and Other Business Entities Act [Chapter24:31] ‘COBE’.

Chiutsi however resisted the claim and filed an application at the High Court in Mutare seeking the setting aside of the 3 July 2024 meeting minutes, contending that at the time of the meeting he was not in his proper senses because he had been negatively affected by his incarceration on allegations of defrauding and misappropriating the Clique Pharmacy funds. He contended further that he signed the minutes in agony of the moment, at a time when he was ‘haunted by a degrading and inhumane prison experience’ and he feared that he would be incarcerated again. He argued that he lacked the mental capacity to contract any minutes, thereby disproving the minutes of that meeting.

So, Justice Mushure said in her ruling after cross examining witnesses during the trial, she analysed two issues, whether or not the first defendant (Chiutsi) was liable to the plaintiffs (the Dube’s) in the sum of US$160 770.57 together with interest thereon calculated at the rate of 5% per month from the date of filing of summons to the date of payment plus cost of suit, and the second issue, to assess whether or not Chiutsi was mentally incapacitated when he attended the meeting held on 3 July 2024.

During the case management stage last year, Justice Mushure added that the parties agreed that the two cases that the Dube’s and Chiutsi filed at the High Courts in Harare and Mutare respectively be consolidated and dealt with as one cause by one Judge, with the issue for determination in the High Court of Mutare matter becoming the second issue for determination in the trial.

However, last week Tuesday, in a dramatic turn of events Justice Mushure in her analysis after cross examination of all witnesses during the trial, she turned the tables and accused the plaintiffs (the Dube’s) of being dishonest litigants.

“I find that the lack of candour by the first plaintiff (Simbarashe Dube) on material issues is damaging to the plaintiffs’ case. In short, the plaintiffs cannot seek the court’s protection after being dishonest with it. Against this backdrop, I find it hard to believe and rely on the first plaintiffs’ testimony that when the first defendant attended the 3 July 2024 meeting, he was not disoriented and he was behaving normally. The first plaintiff has proved to be an unreliable witness and I draw adverse inferences from his evidence,” read her analysis.

Adding, “The evidence on record shows the level of the first plaintiff’s involvement in the day-to-day operations was more pronounced than he wanted this court to believe. In his own testimony, he would get daily reports from the ProPharm system. The first plaintiff also had a firm grip on the payments that were made by the second defendant, often requesting for documents and emphasising that he was responsible for payments, such that I find it improbable that he, a chartered accountant, would be hoodwinked by the first defendant, a mere pharmacist not schooled in accounting, as he purportedly was. On a slightly different but related note, while indeed the first defendant collected some cash from the accountants to hand over to suppliers, this was not regular. Both the plaintiffs’ and the first defendant’s witnesses corroborated each that that he would do so in ‘some’ instances. It was not controverted that he would do so when the accounts team was knocking off early while he remained behind. There is no evidence that the first defendant received the US$284 036.21 through this method,” read the ruling.

Justice Mushure said after a careful analysis of the record she was convinced that the first plaintiff was not a credible witness. She said his testimony was misleading in material respects and misled the court on the level of his and the second plaintiff’s involvement in the second defendant’s day to day operations.

“He misled CapVest and the court that Varichem Kuda, Varichem Martin and Varichem Cosmas were non-existent. He even went as far as generating an email to Varichem Pharmaceuticals searching for Kuda, knowing fully well that this was literally searching for a needle in a haystack. In this court, he even challenged the first defendant to produce the trio, whom he knew fully well were existent. He misled the court that the second defendant never imported drugs from South Africa. He misled the court that he had given CapVest all the security registers. He misled the court that it was the first defendant’s family that had called for the family meeting when the first defendant was in custody. He further misled the court that he had not indicated that the issue between the parties could be resolved if the first defendant parted with his immovable property as ‘compensation’ for the misappropriated funds. I have not been given any reason to doubt Washington Dengu’s and Dr. Mugadza’s consistent evidence to this effect. I do not find any motivation on their part to jointly mislead the court. Their participation in the plaintiffs’ and first defendant’s standoff was motivated by good intentions to resolve the impasse amicably,” said Justice Mushure.

In the trial that took place in August last year, in support of the plaintiffs’ claims there were four witnesses, namely the first plaintiff (Simbarashe Mushambi Dube), Clever Gapara, Michelle Rumbidzai Ringoziva and Thompson Mucheki, whilst eight witnesses gave evidence in support of the first defendant’s case, namely the first defendant himself (Douglas Chiutsi), Benhilda Chiutsi, Samuel Tinashe Maenzanise, Wellington Mazambani, Washington Dengu, Dr Sabastine Madamombe, Dr Tarzen Mugadza and Dr Prudence Mhlanga.

Justice Mushure in her analysis said she believes the plaintiffs did not take kindly to the first defendant’s intention to abandon their partnership. She said the plaintiffs’ treatment of the first defendant was a payback not only for his decision to leave but the manner in which he was interacting with the second plaintiff (Paula Dube).

“We know now that the second plaintiff was complaining about the first defendant not giving her space to practice, being undermined by the first defendant and seemingly small issues like placement of a refrigerator. In my view, coming against this backdrop, the fact that the first defendant decided to stand on his own was a bitter pill to swallow for the plaintiffs. In their bid to stop him, they cried misappropriation of funds. The plaintiffs were bent on inflicting the worst pain possible on the first defendant for his decision to go it alone. However, as demonstrated in the preceding paragraphs of this judgment, the evidence on record does not support the claim. The alleged damages have not been proved to entitle the plaintiffs to the relief they seek. Similarly, the plaintiffs cannot rely on the 3 July 2024 meeting minutes to found liability on the part of the first defendant. I find that the first defendant was mentally incapacitated when he attended that meeting. The minutes of that meeting ought to be set aside and the plaintiffs claim ought to be dismissed in its entirety,” she said.

In her ruling Justice Mushure said, “In the result, it is ordered that the minutes of the second defendant’s shareholders’ meeting held on the 3rd of July 2024 be and are hereby set aside. On the second count the plaintiffs’ claim be and is hereby dismissed with costs.”

The wrangles between the three directors have been making headlines for the past two years. Last year in September, Chiutsi who was now the complainant also claimed to have been prejudiced of US$309 595.67 in theft of trust property by the Dube’s. He accused them of selling Clique Pharmacy assets and the business on 5 September 2024 to Tirman Investments. Tirmin Investments who are now operating their own pharmacy at the same premise where Clique Pharmacy used to operate slightly changed their brand name to Clique Care Pharmacy.

The State outline read,” The complainant held 33% of the shares while the two accused persons had 33.5% each. In 2024 the parties had a sour relationship and the complainant resigned from work as a pharmacist on 7 May 2024. The Complainant left Healthwell Pharmacy t/a Clique Pharmacy with stock and assets as stated on annexure marked ‘B’ attached valued at US$272 775-56. Cash at hand US$21 990.00. Stanbic Bank account 914000991383 had US$1351.99. ZB Bank account 4532257721405 had US$13 478.14 as of 06 May 2024.”

In the State outline Chiutsi further claims that the accused persons removed him from being a director without his knowledge or consent on 27 May 2024 and went on to remove him from being a signatory at Healthwell Pharmacy.

Clique Pharmacy was closed by the Medicines Control Association of Zimbabwe (MCAZ) on 8 August 2024 due to lack of compliance issues, a month before it was sold on 5 September.

It was formed in 2017 by the three shareholders, Chiutsi (33%), Paula Dube (33.5 percent) and Simbarashe Mushambi  Dube (33.5%). The pharmacy within a short space of time grew to become a big brand in the pharmaceutical business in Mutare.

From its formative years in 2017 up to 2023 it reportedly recorded increasing annual gross profits each year. The pharmacy at its peak in 2023 allegedly reached annual sales of over US$2 million, which was a yardstick of a very viable business entity. This is why the case drew so much public interest ever since it started in 2024, making newspaper headlines in the eastern border city.