MUTEMA J:
Defendant is plaintiff's nephew. Plaintiff claims via summons issued on
12 March 2009 that on 21 January, 2006 the parties concluded a written lease
agreement effective 8 May, 2006 wherein plaintiff as lessor, leased to
defendant as lesse, a portion of Kalanga Farm known as Usher Paddock.
Defendant has breached the lease agreement by failing to pay rent of two
heifers per year as agreed and failing to maintain the fence leading to his
cattle straying into unauthorised grazing land. In the event, plaintiff
prays for:
(i) an
order confirming the cancellation of the agreement of the lease;
(ii)
an order ejecting defendant from Usher Paddock, Kalanga Farm, Figtree within
seven days of such order;
(iii)
payment of four heifers as unpaid rent and one heifer per three months of
unlawful occupation;
(iv)
costs of suit.
Defendant's contest is hinged on
the averment that the purported lease agreement is a
sham for defendant purchased the land in dispute from the
plaintiff for
Z$1 000 000 000 – 00 (one billion dollars) which amount was
paid in full. He prays for dismissal of plaintiff's claims with costs on
attorney – client scale.
Three issues were referred to trial at the pre-trial
conference, viz:
1.
whether there is a lease agreement or an agreement of sale between the parties
in respect of Usher Paddock, Kalanga Farm, Figtree.
2.
whether, if there is a lease agreement, plaintiff is entitled to an order
ejecting defendant therefrom and payment of arrear rentals as claimed.
3.
whether, if there is an agreement of sale, defendant is entitled to be left in
occupation of the land aforementioned.
Plaintiff's case rests on his
sole evidence which is to the following effect:
Kalanga Farm used to have a
total hectarage of 2694, 8673 hectares and was being run as a company called
Pampas Farms (Pvt) Ltd. He produced as proof to that effect a deed of
transfer (pages 2-3 of his bundle of documents). The shareholders/
directors were himself and Barrie Mitchell (a white man). During the fast
track land resettlement programme the farm was gazetted for compulsory
acquisition by the government in 1997. On 4 December, 1997 the plaintiff
objected to the proposed compulsory acquisition of the farm to the acquiring
authority – see letter on page 4 of his bundle of documents. After considering
his representations therein the acquiring authority withdrew the preliminary
notice to compulsorily acquire the farm, (pages 5 and 6 of plaintiff's
bundle of documents).
Eventually, of the 2694, 8673 Hactares of the farm, 1224,
5673 Hactares which belonged to shareholder Barrie Mitchell was acquired by the
government for resettlement while the remainder of 1470 3 hactares belonging to
plaintiff was left as his. Plaintiff was subsequently offered that
portion of land – see pages 7, 8 and 9 of his bundle of documents.
On a certain day defendant came to the farm carrying one
bovine in a 7 tonne truck requesting to leave the beast there. He left it
and returned after two days carrying more cattle. After a discussion he
allowed defendant to leave the cattle there. The next day defendant
brought five bundles of barbed wire. They had not discussed the barbed
wire but defendant had noticed that plaintiff did not have such wire to mark
the boundary over which he was quarrelling with his neighbours.
Subsequent to that defendant and himself embarked upon a
joint venture of buying, fattening and reselling cattle. The cheque stubs
defendant has cannot be proof of purchase of the disputed portion of the farm,
rather they relate to the joint venture business of buying cattle, stockfeed
for fattening them and dipping chemicals.
Later on the two concluded a lease agreement on 21 January,
2006 whose terms and conditions are spelt out in the document on page 1 of his
bundle of documents. The material terms of the agreement were that the
lease would commence on 8 May, 2006 when defendant would take occupation of
Usher Paddock, the previous lessee having vacated on 7 May 2006.
Defendant was to pay two heifers annually as rentals effective 1 January, 2007.
Defendant breached the lease agreement by failing to pay the agreed rent and
despite several demands, he never effected even a single payment. This
prompted him to give defendant written notice of six months on 3 September,
2008 of termination of the lease agreement effective 3 March, 2009 (page 10 of
his bundle of documents).
He denied that he sold the land in question to defendant or
that this suit was engendered by a dispute over ownership of an Isuzu Motor
vehicle the parties are embroiled in in case number HC 1558/08.
He then closed his case.
Defendant gave the following evidence:
Plaintiff is his mother's young brother. In 2003 the
two of them began discussing sale of Usher Paddock. He started paying for
it in 2004. The purchase price was Z$1 billion. The agreement was
unwritten and the payment terms were that he was supposed to pay any amount
till he reached the Z$1 billion mark. There were no fixed instalments
regarding the amount or the date - he would pay whenever he got the money.
After finishing paying the Z$1 billion they drafted the ''lease'' agreement in
2006. Plaintiff told him that his neighbours such as Khuphe with whom he
was having quarrels should not know that he had sold the paddock to him
otherwise he would lose the land because neighbours were alleging that the farm
belonged to the government. He agreed to the sham lease agreement
although he knew that he had purchased the land because he trusted the
plaintiff as his uncle.
He denied being engaged in any project with plaintiff that necessitated him
writing plaintiff cheques or giving him money. All the cheques drawn in
plaintiff's favour were for payment of the farm though there were other
cheques he wrote when selling/buying cattle but this was after having fully
paid for the farm. One cheque was even written ''last payment''.
Prior to the motor vehicle dispute plaintiff never demanded rentals from him
and he never paid anything in pursuance to the lease agreement. He
produced his bundle of documents to buttress his evidence showing four cheque
stubs with various dates and amounts paid to P.N. Mabuza averring that they
constitute some of the proof of the payment for the purchase price of the farm
as well as two bank statements. He then closed his case.
I will deal with the three issues referred to trial
seriatim.
(1)
WHETHER THERE IS A LEASE
AGREEMENT OR AN AGREEMENT OF SALE BETWEEN THE PARTIES IN RESPECT OF USHER
PADDOCK
The onus on this issue is on both parties with each proving what he
avers. Section 7 of the Contractual Penalties Act, [Chapter 8:04]
provides that every instalment sale of land shall be reduced to writing
otherwise the onus is on the party alleging the verbal agreement to prove its
existence.
In the instant case defendant has the onus of proving the existence of the
alleged verbal contract of the instalment sale of the land. He has
dismally failed to do so. He says he bought the land for Z$1 billion
which he has since fully paid by way of instalments. The cheque stubs
which were not discovered, which he produced only amount to a total sum of
Z$358 892 311. 00. He has not alleged
that some payments were incash or from a different account. The bank
statements he produced show that the cheques were drawn on the same
account. It is therefore improbable that he would get some and not the
other proof of payment from the same account. It is not difficult to
infer that the other cheques do not exist. No receipts for the alleged
payments were ever issued. According to him, despite having been warned
by plaintiff that the sale had the potential of being fraught with problems,
defendant took no steps to protect his interests, for instance by insisting on
written proof of the sale or having witnesses to the agreement. No one
except defendant knows about the alleged sale. He said the instalments
were neither quantified nor stated as to when they were payable. The date
of transfer of the land to him was never stated and even as we speak he has not
demanded the transfer. In the pleadings he even did not file a
counter-claim for such transfer. His explanation for the foregoing
loopholes is simply that he trusted his maternal uncle. Not only is the
explanation lame but talls for short of discharging the onus that rests on him
to prove the existence of the alleged instalment sale of the land.
Plaintiff sought further particulars to defendant's plea asking if as alleged
owner, defendant was paying rates and taxes for the land. His answer was
in the affirmative but in the trial he failed to produce such proof.
Plaintiff's explanation for the cheques drawn in his name as payee is that the
cheques were for payments for their joint enterprise of buying, fattening,
dipping and selling cattle. Such explanation is found plausible and is
accepted. He averred that the agreement between the parties is one of a
lease. He buttressed this by producing the written memorandum to that effect
dated 21 January, 2006 duly signed by both of them stipulating the terms and
conditions of the lease. Defendant's averment that that document is a
sham meant to disguise the sale can only be dismissed as mere sophistry.
This is so in view of the court's findings supra regarding the alleged
sale.
(2)
WHETHER, IF THERE IS A LEASE AGREEMENT, PLAINTIFF IS ENTITLED TO AN
ORDER EJECTING DEFENDANT FROM USHER PADDOCK, KALANGA FARM, FIGTREE AND PAYMENT
OF ARREAR RENTALS AS CLAIMED
Having found
that the agreement is one of lease the court is behoved to determine whether
defendant has breached that agreement thereby entitling plaintiff to an order
for ejectment and payment of the claimed arrear rentals. It is a term of
the lease agreement that defendant was to pay two heifers annually as rent with
effect from 1 January, 2007. It is common cause that defendant has not
paid any rentals let alone as agreed upon. This conduct – non payment of
rent-amounts to a material breach of any lease agreement entitling the lessor
not only to cancellation of the lease but also to ejectment of the errant
defendant from the rented premises. On 3 September, 2008 plaintiff gave
defendant six months notice of termination of the lease agreement on account of
various breaches including non payment of rentals and to vacate the premises on
3 March, 2009. To date defendant is still in situ. Clearly
plaintiff is entitled to defendant's eviction from the farm. Plaintiff is
as well entitled to aggregate arrear rentals of four heifers for 1 January,
2007 and 1 January, 2008. As holding over damages plaintiff claims
one heifer for every three months of unlawful occupation viz from
3 September, 2008.
Plaintiff, however, did not ventilate neither in the pleadings nor in the trial
the justification of such hold - over damages. The norm regarding
holdover damages is that they are always equivalent to the periodic rent
payable as per the lease. After payment of two heifers on 1 January, 2008
the next rent of two heifers was due on 1 January, 2009 and 1 January, 2010,
then 1 January, 2011 then 1 January, 2012 and 1 January, 2013. This
translates into ten heifers in holdover damages for the five years of unlawful
occupation. In the event that 1 January, 2014 arrives with defendant
still in situ an additional two heifers in holdover damages will also
be payable.
Having found as I have done in regard to the foregoing two issues referred to
trial, there is no need to deal with the third issue that was also
referred to trial as it has been overtaken by those findings.
In the result I order as
follows:
(i)
the cancellation of the agreement of lease between the parties in respect of
Usher Paddock, Kalanga Farm, Figtree be and is hereby confirmed;
(ii)
the plaintiff is granted leave to eject defendant from Usher Paddock, Kalanga
Farm Figtree within seven days of this order;
(iii)
defendant shall pay plaintiff four heifers as arrear rentals and two heifers
annually as holdover damages with effect from 1 January, 2009 to date of
vacation of the paddock;
(iv)
defendant shall pay plaintiff's costs of suit.
Messrs James, Moyo – Majwabu
and Nyoni,plaintiff's legal practitioners
R.
Ndlovu and Company,defendant's legal
practitioners
