MTSHIYA
J: On 30 March 2010 the plaintiff issued
summons from this court against the defendant making the following
claim(s):-
"(a) An order
ejecting the defendant and all persons claiming occupation through
the defendant from 55 Coventry Road, Workington,
Harare.
(b) Payment of the sum of US$12 900.00 being a
sum of money owed by the
defendant to plaintiff in respect of
arrear rentals for the period February and
March 2010 in respect of defendant's
occupation of plaintiff's premise
Known as 55 Coventry Road, Harare
together with interest thereon at the rate
of 5% per annum calculated from the first
February 2010 to the date of
payment.
(c) Payment of holding over damages at the rate of
US$8 000.00 per month, being
the monthly rental from 1 April 2010 to date
of eviction arising from the
defendant's occupation of plaintiff's premises
known as 55 Coventry Road,
Harare
together with interest thereon at the rate of 5% per annum.
(d) Payment of arrear utility bills
in the sum of US$5 590.00, and any such further
bills accruing up to the date of defendant's
eviction."
The background to the claim is that
on 1 April 2004 the plaintiff leased its premises, namely 55 Coventry Road,
Harare, to the defendant for the purposes of Light Manufacturing and Allied
Trade. The lease agreement was extended
on a number of times and the last . extension was to the end of 30 September
2009. The applicable monthly rental for
the period ending 30 September 2009 was US$4 050.00. There-after, I draft lease agreement, with a
monthly rental of US$8 000.00 commencing on 1 October 2009 to 31 December 2009,
was drawn up but was never signed by the parties. Despite the essence of a signed lease
agreement the defendant made payments on the basis of the new rental of US$8
000.00 from 1 October 2009 up to 31 December 2009. The defendant made further payments as
follows:-
1. January
2010 = US$8 000.00
2. February
2010 = US$8 000.00
3. October
2010 = US$8 000.00
4. November
2010 = US$8 000.00
The defendant said in January 2010 it discovered that its sub-tenant
namely Zacro Services (Pvt) Ltd (ZACRO) was also paying $2 000 per month. This was confirmed by the plaintiff. The defendant said the payments by Zacro made
it change its mind on the rental payable.
I then resorted to paying the applicable rate of US$4 050 as at 30
September 2009 noting of an appeal was misplaced. In the main therefore, there is little that
remains for determination by this court.
There was however, evidence that the
defendant instead made seven payments at the rate of US$8 000 between the
period 1 October 2009 ad November 2010 as reflected above. There is also
evidence that, although there was no formal lease agreement from 1 October 2009
the defendant accepted the new rental of US$8 000 per month. There is, however, no evidence of a change to
the payment of US$4 050 that was applicable as at 30 September 2009. The defendant said it had unilaterally taken
a decision to regard the payments of US$8 000 as double payments per month of
US$4 050.00 spread over the period the noting of an appeal was misplaced. In the main therefore, there is little that
remains for determination by this court. That is what brought about the
dispute.
Each party called one witness and in
the main their evidence only differed on whether or not the new rental of US$8
000 with effect from 1 October 2009 was mutually agreed on.
In his submissions Mr Chinawa fro
the plaintiff stalid that given the concessions with respect to breaches
committed, the defendant had refused to consent to judgment only for the
purposes of noting an appeal so as to delay eviction. To that end he applied urged the court to
ensure that its order would be executed notwithstanding an appeal to the
Supreme Court.
Mr Gapara, for the defendant,
confirmed the following concessions
a)
That in breach of the contract, utility bills were not
paid; and
b)
That, in breach o the contract, the defendant had
accumulated rental arrears.
The
said it would be improper for him, on a professional basis to deny the
breaches. He, however, submitted that it
remained a litisant's right to appeal against any decision of this court and
therefore the submission that the decision of the court be executed despite the
plaintiff claimed it was in arrears.
The
defendant said such an arrangement would erase the plaintiffs claim for US$126
000-00 for the period January 2010 to February 2012. The plaintiff's calculations showed that
after deducting Zacro payments of US$50 000 for the period, a balance of US$126
000.00 remained for settlement by the defendant.
Let
me hasten to say that at the common comment of this trial and following
admissions made by both parties in the Joint Pretrial Conference minute, the
only issue that remained for determination was rent payable. In brief the defendant admitted being in
breach of the lease arrangements during the period of signed leases and also
during the period when it became a statutory tenant, through failure to pay
utility bills as admitted in the Joint pretrial Conference Minute. The defendant conceded that, that breach
alone entitled the plaintiff to terminate the tenancy. Apart from that, I am convinced that the
defendant accepted the new rental of US$8 000-00 per month from 1 October 2009
to the date summons was issued. It then
failed to pay rent at that rate amounting to a total of US$126 000-00 as at
February 2012 (See p72 of exhibit 1).
Clearly that was further breach entitling the plaintiff to seek redress in
the manner it has done.
During
the hearing, the defendant's witness accepted the breaches and stated that he
believed the matter could be settled amicably.
That did not happen and hence this judgment.
In
view of the foregoing and with particular reference to the concessions made by
the defendant, the plaintiff is entitled to the grant of the relief it
seeks. I believe the noting of an appeal
in this case would have no merit at all.
I therefore order as follows:-
1.
The defendant
and all persons claiming occupation through it, shall vacate 55 Coventry Road, Workington, Harare, within 14
days from service of this order failing which the Deputy Sheriff is authorized
to evict the defendant and all persons claiming occupation through it.
2.
The defendant shall pay the plaintiff within 14 days
from the date of service, the sum of US$126 000-00 in respect of rental
arrears, together with interest at the rate of 5% per annum calculated from 1
March 2010 to 28 February 2012.
3.
The defendant shall pay holding over damages at the
rate of US$8 000 per month with interest thereon at the rate of 5% per annum
from 1 March 2012 to the date of eviction.
4.
The defendant shall pay US$35 677.00 in respect of
arrear utility bills and such other utility bills that shall accrue up to the
date of eviction; and
5.
The defendant shall pay costs of suit on an
attorney-client scale.
6.
This order shall be enforceable notwithstanding the
noting of an appeal.
Kantor & Immerman, plaintiff's legal practitioners
Kanokanga &
Partners, defendant's legal practitioners
