Civil
Trial
MOYO
J:
Plaintiff
issued summons in this matter seeking an order as follows:
(a)
Eviction of the defendant and all those claiming right of occupation
through him from a property known as house number 5 Cypress Avenue,
Masasa Kwekwe.
(b)
Payment of $3,478-00 being arrear rentals for the period extending
January 2013 to December 2013.
(c)
Holding over damages at the rate of $11.50 per day from January 6,
2014 to the date of eviction.
(d)
Payment of the sum of $169.32 being arrears ZETDC bills and $243-00
being the Municipality bills.
(c)
Costs of suit at a higher scale.
It
is important to note that plaintiff's witness advised the court
that claim number (d) on the summons was being abandoned because the
utility bills had been paid by defendant to the relevant authorities.
Plaintiff's
case is that the defendant took over occupation of stand 5 Cypress
Avenue Masasa Kwekwe, after the decease of one Chengoma who was the
lessee leasing the property from the plaintiff. Plaintiff was made to
understand that defendant was related to the late Chengoma and would
want to remain in occupation and take over the lease.
Plaintiff
allowed defendant to remain in occupation on condition defendant paid
monthly rentals in the sum of $345-00 per month.
They
were to assess defendant's performance on payments before crafting
a lease in defendant's name.
Defendant
fell into arrears shortly after this arrangement was made resulting
in plaintiff instituting this action.
Defendant
on the other hand agrees that he took occupation of the property in
issue and that he was to pay $345-00 per month but that in fact he
had entered into a rent to buy agreement with the plaintiff.
In
giving evidence defendant told the court that in the rent to buy
agreement he was to pay $345-00 per month and he was supposed to have
paid $9,600-00 by 31 August 2013.
He
however told the court that he did not pay the $9,600-00 by 31 August
2013 as the bank had said he could be given an indulgence to pay
within another three months. He said however he did not pay the
$9,600 even by December 31, 2013 as he had only paid $7,500 by then.
Asked
what the precise terms and conditions of the rent to buy agreement
were, he said he was to pay $9,600 at $345-00 per month by 31 August
2013.
Defendant
also told the court that it was another term of the agreement that he
would then pay about $25,000-00 “soon after paying the $9,600” to
make up the total purchase price of $35,000-00.
He
said that his agreement with the bank was oral.
Defendant
failed to produce proof of payments for the rentals per month from
2012 to date. He only tendered about nine copies of deposit slips all
with dates in 2012. They were marked Annexure “A”.
From
the facts before me the following are common cause:
(a)
That Defendant took occupation of plaintiff's property sometime in
2012 – 2013.
(b)
That defendant did make some payments towards rentals.
(c)
That there are no rental slips for the years 2013, 2014 and 2015.
(d)
That the property, i.e. number 5 Cypress Avenue, Masasa Kwekwe
belongs to plaintiff.
(e)
That an agreement was reached between the parties resulting in
defendant occupying plaintiff's property, whatever nature of
agreement whether it was a rent to buy or lease, but the bottom line
is some agreement was reached.
Looking
at plaintiff's allegations that defendant inherited Chengoma's
lease whom they were made to believe was his relative, and the
rentals agreed upon as well as the payment slips tendered by
defendant, plaintiff's case sounds in my view to be plausible.
On
the other hand, defendant's case creates numerous problems and I
list them herein.
Assuming
that the court were to accept the defendant's version of events,
there are these challenges in adopting that version:
(1)
The parties entered into an oral rent to buy agreement
This
raises eyebrows as any person who owns an immovable property to the
value of $35,000-00 would not behave in such a manner, more so a
building society.
On
the other hand, plaintiff's explanation for the oral lease
agreement is plausible in that defendant was taking over Chengoma's
lease as a relative and this would entail continuity. Also, that they
did not immediately reduce the agreement to writing since they wanted
to observe defendant's conduct with regard to payments makes sense.
(2)
The defendant says that the agreement was that he takes occupation,
pays $345-00 per month as rentals in a rent to buy agreement, and
that he should have paid $9,600 by 31 August 2013 from January 2012.
2012
had 12 months and from January 2013 to August 2013 its 8 months
meaning that there is a total of 20 months. At $345-00 per month for
20 months mathematically defendant would have paid $6,900-00.
So
it would not make sense that the bank agreed with him that he pays
$9,600-00 by 31 August 2013 from January 2012 at the rate of $345-00
per month.
(3)
When he was asked for the precise terms of this rent to buy
agreement, he said that he was to pay about $25,000 “soon after
paying the $9,600.”
What
kind of agreement is this?
(4)
Defendant did not comply with the terms of the agreement he alleges
was entered into.
He
never paid $345-00 per month consistently for the 20 months
stretching from January 2012 to 31 August 2013. Neither did he pay
the $9,600-00 by 31 August 2013.
He
says that he was given a leeway to pay within 3 months from the last
date given, but it is also his evidence that he had not paid the
$9,600 by December 2013. He also did not pay the balance of about
$25,000 “soon after paying the $9,600” as he never paid the
$9,600 in the first place.
Clearly
defendant is being untruthful with the court from the aforestated
analysis.
He
wants to take the court in a long meandering route destined nowhere.
He is merely wasting the court's time and is indeed abusing court
process in my view.
He
knows that he entered into a lease agreement with plaintiff,
defaulted on rentals and then decide to come up with a concocted rent
to buy story that was falling apart on its own.
I
accordingly grant plaintiff the following relief for the aforestated
reasons:
(a)
Eviction of the defendant and all those claiming right of occupation
through him from the property known as house number 5 Cypress Avenue,
Masasa Kwekwe.
(b)
Payment of $3,478-00 being arrear rentals for the period extending
January 2013 to December 2013.
(c)
Holding over damages at the rate of $11.50 per day from January 6,
2014 to the date of eviction.
(d)
Costs of suit at a higher scale.
Masawi
and Partners,
plaintiff's legal practitioners
Mutatu
and Partners,
defendant's legal practitioners
