Civil
Appeal
MUNANGATI-MANONGWA
J:
The
appellant (then plaintiff) sued respondent (then defendant) in the
court a
quo
for ejectment from the premise at Number 8 Bindura Township in the
district of Bindura commonly known as No.8 Main Street, Bindura or
simply Bindura Service Station, payment of US$3,400-00 being the
amount due in respect of the agreed rentals, holding over damages at
the rate of US$800-00 per month from 1 August 2014 to the date of
vacation, 5% interest on all the amounts and costs.
At
the close of the defendant's case the defendant applied for
absolution from the instance which application was granted by the
magistrate.
The
plaintiff appealed against that judgment.
On
21 January 2016 this court allowed the appeal by the appellant
against the court a
quo's
dismissal of the appellant's claim against the respondent at the
conclusion of trial. The following order was granted:
(a)
The appeal be and is hereby allowed with costs.
(b)
The respondent and all those claiming occupation through him be and
are hereby ejected from the premises at Number 8 Bindura Township in
the district of Bindura commonly known as No. 8 Main Street, Bindura
or simply Bindura Service Station.
(c)
The defendant be and is hereby ordered to pay the sum of US$3,400-00
being the amount due in respect of the agreed rentals and costs as at
10 June 2014 with interest thereon at the rate of 5% per
annum
calculated from 1 July 2014 to date full payment.
(d)
The defendant be and is hereby ordered to pay holding over damages at
the rate of US$800-00 per month from 1 August 2014 to the date of
vacation with interest there at the rate of 5%
per annum
reckoned from the date that each amount becomes due and payable.
(e)
The defendant shall pay the costs of suit on a legal practitioner and
client scale.
The
background facts to this matter which facts are common cause are as
follows:
On
4 January 2013 the appellant entered into a lease agreement with a
company called Kadkoy Motors (Pvt) Ltd (hereinafter called “the
lessee”) for the lease of Stand No. 8 Bindura Township in the
district of Bindura commonly known as No.8 Main Street, Bindura or
Bindura Service Station. After a period of about 3 months the lessee,
Kadkoy Motors (Pvt) Ltd, gave up the premises due to non-viability of
its business. Upon taking possession of the premises the appellant
discovered that the previous lessee had placed various sub-tenants in
the premises who included the respondent.
The
appellant engaged the respondent with a view to negotiate a dignified
exit conceding to their request that they vacate the premises by 31
December 2013 but the respondent was not co-operative. The appellant
issued summons for the respondent's eviction on the basis that he
was an illegitimate occupant who was not paying rent. The appellant
further sought payment of US$3,900-00 as payment for the respondent's
occupation and holding over damages at US$1,300-00 per month from
January 2014 until the respondent vacated, and further claimed
interest and costs.
The
matter proceeded up to pre-trial conference stage where the parties
negotiated and signed a deed of settlement on 10 June 2014. The
document stated, inter
alia,
that the respondent was to vacate the premises on or before 31 July
2014 and set amounts to be paid by the respondent. The deed of
settlement was filed and is part of the record.
For
a while, the respondent obliged with the terms stated in the deed of
settlement as agreed by paying money to the appellant for its
occupation pending its vacation of the property and then stopped.
When the respondent stopped paying for its occupancy, no consent
order had been granted by the court as per the deed of settlement.
The appellant finally set the matter down for trial for the
conclusion of the dispute.
The
issues that were up for determination were as follows:
1.
Whether or not the defendant should be evicted from the premises he
is occupying.
2.
Who should bear the costs.
At
trial the plaintiff's evidence remained as outlined earlier
persisting with its claim.
The
defendant whilst acknowledging that it has no lease agreement at all
with the appellant apart from an arrangement to occupy the premises
done through the appellant's manager, his defence and evidence was
that the appellant could not evict him as it is not the owner of the
premises. Hastening to add that at the close of the plaintiff's
case the defendant made an application for absolution from the
instance which application was refused. Trial proceeded and at the
end thereof, once again the defendant applied for absolution from the
instance and in granting same, the magistrate sitting in the court a
quo
remarked;
“I
should have granted absolution from the instance at the close of the
plaintiff's case.” Aggrieved by this finding the appellant
appealed against the decision. The grounds of appeal were stated as
follows:
“1.
The court a
quo
also erred in ordering absolution from the instance without assessing
the evidence led by the parties for the eviction of the defendant
notwithstanding that there was clear and sufficient evidence to
warrant ejectment of the defendant and all those claiming occupation
through him from the premises at Stand Number 8 Main Street, Bindura.
2.
The court a
quo
erred in finding that the appellant's witness should have produced
authority to represent it in court notwithstanding that this is not a
requirement at law.
3.
The court a
quo
also erred in finding that the appellant should have proved its
ownership of the premises in question in order to be able to evict
the defendant from the premises notwithstanding the fact that this is
not a requirement at law for a person who was a subtenant where the
main tenant has vacated the premises.
4.
The court a
quo
erred in finding that the appellant should have called the evidence
of its business manager when such evidence was totally unnecessary in
view of the established and undisputed facts.
5.
The court a
quo
also clearly erred in dismissing the appellant's claim without
determining the evidence adduced to the court by the defendant.
6.
The court a
quo
also erred in failing to appreciate the fact that the Deed of
Settlement signed by the parties, itself not withdrawn constituted a
compromise agreement that should have been upheld.
7.
The court a
quo
erred in ruling that no prima
facie
case had been established notwithstanding the fact that he already
found, in dismissing the earlier application for absolution from the
instance that there was a prima
facie
case.
8.
The court a
quo
also erred in failing to deal with the losses being suffered by the
appellant as a result of the fact that the respondent's is simply
occupying the premises without paying anything. As a result he
effectively perpetuated the loss being suffered by the appellant by
granting absolution from the instance.”
Despite
the several grounds of appeal which we found repetitive, the
pertinent issue for determination is whether or not in the
circumstances of this case the court
a quo
misdirected itself in granting absolution from the instance at the
close of defendant's case.
The
leading case on the question of absolution from the instance is
Supreme
Service Station (1969) Private Limited v
Goodridge Private Limited.
In this case Beadle CJ referred to and accepted that the locus
classicus
case on absolution from instance is Gascoyne
v
Paul Hunter
1917 TPD 170. Deriving therefrom Beadle CJ clearly stated that it is
perfectly competent for a court to refuse an application for
absolution from the instance when the application is made at the
close of the plaintiff's case but to grant it if the defendant
promptly closes his case and renews the application without calling
any evidence. This he said would not create any inconsistency
because:
“the
test to be applied when application is made before the defendant
closes his case is “what might
a reasonable court do?; whereas the test to be applied when the
application is made after the defendant closes its case is “what
ought
a reasonable court do.”
He
further explained that:
“The
distinction here between 'might' and 'ought' in this context
is an important one. It must be assumed that any judgment which a
court 'ought' to give must be the correct judgment, as no court
'ought' to give a judgment which is incorrect. Once it is
accepted that a judgment which a court 'might' give may differ
from that which it 'ought' to give, it is clear that the judgment
which it 'might' give and which differs from the judgment which
it 'ought' to give must be an incorrect judgment.”
In
the court a
quo,
both parties had given evidence, thus upon application by the
respondent for absolution from the instance after it had closed its
case (the defence case) the correct test was what judgment it 'ought'
to give which in essence has to be a correct judgment. Where all
evidence has been led, there is no room for error. This is different
from a scenario where the application is made at the end or close of
the plaintiff case where the court in applying the test “what might
a reasonable court do” there is allowance of making a reasonable
mistake and come up with an incorrect judgment. Where the defendant
has closed his case, the court has to fully assess the evidence in
its totality, fully conscious of the burden now upon it to weigh the
probabilities raised by the adduced evidence before it. The test
becomes stringent what 'ought' a reasonable court do.
It
is common cause that the magistrate in the court a
quo
bemoaned his failure to grant the application for absolution at the
close of the plaintiff's case. From the reasons of judgment as
appearing on record, the court a
quo
blatantly applied the wrong test given that a full trial had ensued
and the application was made after the defendant closed its case.
The
Gascoyne
case
was clearly misconstrued as the court considered the wrong question;
“Is there evidence upon which a reasonable man might find for the
plaintiff?”
Nowhere
in the record did the magistrate refer to the question “what ought
a reasonable court do” - the applicable test in the circumstances.
In
fact there seems to have arisen a mix up and the court a quo seems
not to have been conversant with the test to be applied in the
different scenarios. Therefore by applying the wrong test the court
misdirected itself as reflected by its finding that “there is no
prima
facie
case” - a pronouncement made at the end of trial.
Since
the court applied a wrong test it arrived at a wrong decision in
granting absolution from the instance when the respondent closed his
case. In that regard the appeal ground raised by the appellant has
merit and is upheld.
It
is pertinent to note that in applying the test on absolution from the
instance at the close of the defendant's case, the court is not
only looking at the evidence alone, it has to consider the law and
apply same to the facts.
In
this case an understanding of the law pertaining to tenancy was
crucial.
In
deciding the issue of eviction the court a
quo
had to consider the legal status of the respondent. Further it was
important to consider what rights the respondent had regarding the
occupation of the premises having determined his status.
In
Omarshah
v
Karasa
1996 (1) ZLR 212 HC at p 215 Gillespie J held that:
“The
rights of a subtenant as against a landlord are coterminous with
those of the lessee. No greater rights may be acquired by her than
those enjoyed by the lessee under the head lease. See Bright
v
Truump
Garage (Pty) Ltd
1949 (3) SA (C) at 359. The proposition is applied in our law to the
extent that a sub-lessee does not enjoy the protection of a statutory
tenant where the lessee has surrendered any right of occupation under
the head lease. This protection, it said, 'could never have been
intended to apply when there never was any vinculum
juris,
either contractual or quasi–contractual between an owner and a
person whom he is seeking to eject from his premises.”
The
Omarshah case clearly sets out that the rights of a sub-tenant as
against the landlord end when those of the lessee terminates, and
that the subtenant cannot enjoy greater rights than those bestowed on
the lease holder. Where the lessee gives up occupancy the subtenant
cannot seek protection as a statutory tenant. In simpler terms the
rights of a subtenant are subservient to those of the lessee and when
a lessee leaves the premises the subtenant has no legal basis to
remain in occupation.
In
casu
the respondent was a subtenant of Kadkoy (Pvt) Ltd the lessee. The
demise of the lessee's tenancy or the surrender of occupancy by the
lessee meant the extinction of any rights that the respondent had.
Conversely the respondent's status could not be termed a statutory
tenant and he could not enjoy the protection accorded to a statutory
tenant as espoused by the Omarshah case.
Not
being a recognized tenant, the respondent had no right to remain in
occupation of the premises beyond the negotiated date and hence the
order for eviction should have been granted. Thus, the court a
quo
patently misdirected itself on the law when it made a finding that
respondent was a statutory tenant and failed to order his ejectment.
Apart
from the legal position, factually the respondent could not be a
statutory tenant as he had no lease agreement and was not paying
rentals. A statutory tenant is one who despite the expiry of the
lease agreement continues to pay rent and abide by the terms of the
lease agreement. This could not be said of the respondent. The
respondent's occupation of the premises remains illegal and the
court a
quo
should have cut the appellant's losses by granting the order
sought.
It
is also clear that the decision of the court a
quo
is hinged on the fact that the appellant not being the owner of the
premises it could not evict the respondent.
This
is surprising because it is common cause that after the departure of
the lessee the respondent negotiated a temporary reprieve with the
appellant's manager, paid rentals to the appellant only to later
stop payments and challenge the appellant's rights.
The
learned magistrate clearly misdirected himself on the law and
certainly did not appreciate the import of the case of Hillock
and Another v
Hilsage
Investments (Pty) Ltd
1975 (1) SA 508 when he dismissed the appellant's case on the basis
that it did not own the premises. The Hillock
case,
to the contrary is authority that a party other than the owner can
recover premises from a third party without having to prove
ownership. This flows from the legal premise that a lessee is not
allowed to challenge the right or title of the lessor.
Given
that legal position, the appellant was within its rights as the
lessor to evict the respondent and the respondent was estopped from
resisting ejectment on the basis that the appellant did not have
title to the premises. That the property was owned by Zuva Petroleum
2 was neither significant nor important as the appellant was the
recognized lessor. The appellant's contention therefore has merit
because the court a
quo
misconstrued the law.
Further,
the court a
quo
certainly misdirected itself on a point of law in finding that the
appellant's witness should have produced authority to represent it
in court.
This
is not a requirement at law.
A
witness needs not produce any authority as they are coming to testify
or give evidence on facts pertaining to the matter, which facts are
in the witness' personal knowledge.
In
this instance the witness Mr
Pillay
was the appellant's legal officer and he knew of the facts
characterizing the occupation of the premises in issue. That in
itself was sufficient. Mr Pillay
did
not institute the proceedings on behalf of the appellant, rather he
came to support the appellant's claim by way of giving evidence, in
that regard the question of locus
standi
did not arise. The appeal ground by the appellant on this point is
thus upheld.
Tying
up to this, is the misdirection by the court a
quo
once again as pointed to by the appellant, where the court made a
finding that the appellant should have called the evidence of its
business manager. Such evidence was totally unnecessary in view of
the established and undisputed facts. It was common cause that the
original lessee had given up the lease and vacated leaving the
respondent in occupation. The respondents where now in occupation by
virtue of an arrangement they had with the Business Manager, they had
paid rentals and stopped and now where challenging the appellant's
rights to ownership when the appellant sought to evict the
respondent. In the light of that evidence there was no need to call
the Business Manager.
Overally,
the court a
quo
seems to have lost track of the issues that came up at the pre-trial
conference which issues it had to consider and determine.
Such
a consideration would have kept the court alert to what was the
necessary evidence. Conscious of what had to be proven, the court
would have assessed the evidence using the proper test and applying
the relevant law. This, the court a
quo
failed to do and consequently came up with a wrong decision. The
appellant had proven his case on a balance of probabilities and the
court ought to have granted judgment in the appellant's favour. It
is due to the foregoing reasons that the court upheld the appeal with
costs and granted the order prayed for.
MWAYERA
J agrees:………………………………
Moyo
& Jera,
applicant's legal practitioners
Jena
& Associates,
respondent's legal practitioners
1.
1971 (1) RLR 1
2.
1971 (1) RLR at F-H
3.
Hillock
and Another v Hilsage Investments (Pty) Ltd
1975 (1) SA 508 at 516D
