HUNGWE J: Applicant and respondent entered into three
lease agreements in terms of which the applicant leased to the respondent its
premises located at 4th to 7th floors LAPF Centre, at
corner Chinhoyi Street
and Jason Moyo Avenue,
Harare. The first of these
agreements was concluded on 9 November 2004. In terms of that lease the
applicant leased to the respondent the 4th and 6th floors
of LAPF Centre. In December 2004, the parties concluded another lease in
respect of the 5th and 7th floors in the same building.
The final agreement was concluded in October 2006 and was in respect of
portions of the 5th floor of the said building. The three lease
agreements are part of the papers.
The
pertinent provisions of the lease agreements can be summarised as follows.
Clause 3.1 provided that the respondent would pay rent monthly in advance on or
before the first day of each month. By clause 4 of the agreement, the
respondent would pay to the applicant a pro
rata share of operating costs calculated in accordance with the lettable space
occupied by the respondent. By clause 20.3 the respondent undertook to pay the
applicant's costs on a legal practitioner and client scale should the applicant
incur legal costs arising from the respondent's default on the lease
agreements. Although the lease agreements expired the above provisions were
saved by clause 2.3.
Applicant
claims that from February 2009 to date, respondent has not paid any rent for
the above premises nor has it paid operating costs amounting to US$82 443.25.
On 6 February 2009, the respondent, through its then legal practitioners,
offered to pay US$9 000,00 per month as rent. This offer was accepted by the
applicant claims that despite its undertakings the respondent has failed to
settle its indebtedness to the applicant.
Respondent
opposes the application.
It
raises one major point which is that the alleged agreement that rent be fixed
at US$9 000-00 was later qualified by a subsequent letter from the respondent's
legal practitioners in which a claim for overpayment in Zimbabwe
dollars was made. This overpayment must necessarily lead to the debatemant of
the accounts relied upon by the applicant. Further, by letter dated 27 May
2009, the respondent surrendered the whole of the 5th floor and part
of the 6th floor, therefore, so the argument goes, the claim for
arrear rentals from that date at US$9 000-00 is unsustainable. The agreement to
pay US$9000-00 is denied.
Respondent
further claims that there are triable issues which led to the withdrawal of the
initial court action brought by the applicant under HC 407/09 which remain
extant.
In
its answering affidavit, the applicant denies that any overpayment was ever
made to it for rent as rent was always paid per month. Due to the
hyper-inflationary environment which prevailed in the economy then, had any
suggestion for pre-payment been made, it would have been rejected. Applicant
states that the withdrawal of the court action was prompted by other
considerations than those raised in the opposing affidavit or the admission that
there was a defence to its claim. Applicant states that the reason for the
withdrawal was that the action did not specify the period for which arrear
rentals arose. In that regard they agreed with the legal practitioners who
raised this issue but did not agree with the rest of the issues raised. As
evidence in rebuttal the applicant relies on a letter addressed to it by the
respondent's legal practitioners which letter accompanied the so-called
overpayment. The letter is dated 7 January 2009 and states;
“The
above matter refers.
Find attached rentals for the month
of December 2008 deposited into your CB Richard Ellis's Standard Chartered
account.
Let
us know if there is any prospect for us to have a round table conference”.
Applicant
said that the same legal practitioners were to write on 6 February 2009:
“We
refer to your latter dated 27 July 2008 contents which we have noted.
Meanwhile our client is hereby
tendering the sum of US$9 000-00 as rentals for February 2009. Let us have the
Foreign Currency Account to enable us to effect transfer”.
They
were duly furnished with the FCA account but no payment was made. By 27 May
2009 the respondent's Finance Manager was still acknowledging that the rent for
the four floors was US$9 000-00 but offering to move out of the 5th
floor with adjustments being made to the rentals.
It
seems to me that no real dispute of fact arises in this matter.
First,
the respondent avers that there was no agreement as to rentals after the
written lease agreement expired. If this is the case one wonders why the
respondent suggested a figure of US$9 000-00 as being fair rental. I am not
persuaded to accept as, Mr Chikumbirike
urged me to, that the matter must be considered on the basis that there was no
lease because the rentals were not fixed by the clause that saved all other
provisions to the agreement. The fact if this matter is that the respondent
itself suggested an amount of money which in its financial wisdom it deemed to
be fair rental. This amount was accepted by the applicant as the agreed rental.
To suggest therefore that no lease agreement existed will be to destroy the
agreement of the parties themselves.
Second,
the claim that the legal practitioners who acknowledged the outstanding arrear
rentals had no authority to do so cannot be seriously made in the absence of
such an admission by the concerned legal practitioners. An affidavit to this
effect could have easily been obtained if it was true that they had no
authority to make the admissions they made. Thus in my view the respondent
freely admitted its indebtedness to the applicant in the sums now claimed.
Third,
its own financial manager acknowledged the applicant's indebtedness in writing.
Fourth,
the suggestion of overpayment of rental of Zimbabwe dollars is not made in
good faith. Had the respondent made an overpayment or a payment in advance of
its rentals to the applicant, common sense tells us that this would have been
raised at the earliest opportunity which is the months following the
overpayment or payment in advance. Subsequent communication between the parties
would certainly have reflected this claim of advance payment. Nowhere is this
suggestion made till the matter is handed over to legal practitioners.
Curiously, there is no explanation why this advance payment issue was never
raised when the applicant demanded its rentals. It is clear that this is merely
being raised now for the purpose of delay.
Had
the respondents not themselves suggested the rentals of US$9 000-00, it may be
within their rights to argue that no rentals were fixed after the adoption of
the multi-currency economic regime. It is the respondent who offered to pay
this sum as rentals and the applicant accepted the offer. To my mind rentals
were from February 2009 fixed at that sum. The suggestion that the applicants
were over-paid when the December 2008 were made is simply ridiculous as no
suggestion was made at the time of payment. It cannot arise now. Respondents
failed to pay rent and other related charges in the form of operating costs. In
my view the respondents have no defence to the claim and have raised these
merely for the purposes of delay.
In
the result the application for summary judgment succeeds with costs.
Gill, Godlonton &
Gerrans, applicant's
legal practitioners
Chikumbirike
& Associates, respondent's legal
practitioners
