Brightland Farming (Private) Limited v Redan Petroleum (Pvt) Ltd and Another (844 of 2022) [2022] ZWHHC 844 (11 November 2022)

1 HH 844-22 HC 1302/12 BRIGHTLAND FARMING (PRIVATE) LIMITED versus REDAN PETROLEUM (PVT) LTD and BEVERLEY CULVERWELL HIGH COURT OF ZIMBABWE ZHOU J HARARE, 23, 24 & 25 January & 12, 18 & 20 March & 9 & 20 September & 17 & 23 October 2019 & 14 May & 9, 11 June & 20 July 2021 & 30 June & 11 November 2022 Civil Trial C M Jakachira, for the plaintiff L Uriri, for the defendants ZHOU J: This is a claim by the plaintiff for damages in the sum of USD1 300 000.00, interest thereon at the rate of five percent per annum from 18 January 2012 to the date of final payment, and costs of suit. The damages claim arises from the removal of the plaintiff’s bakery and other equipment from premises at 65 Mutare Road, Msasa, Harare where the plaintiff had previously operated a bakery business under the name Q-Tees Bakery. The said premises belong to a company known as Crestlane Investments (Private) Limited. The claim is opposed by the two defendants. The trial in this matter commenced before MTSHIYA J in 2015. Absolution from the instance was granted at the close of the plaintiff’s case. The matter went on appeal to the Supreme Court. The Supreme Court overturned the judgment granting absolution from the instance and remitted the matter for it to proceed to the defendants’ case. Apparently MTSHIYA J recused himself from the case at the instance of one of the parties, hence the matter was referred to me. I commenced the trial de novo with the concurrence of the parties. The parties agreed, however, that the record of proceedings which had been conducted before would form part of the record herein and the court could relate to the evidence therein as if it was placed before it. HH 844-22 HC 1302/12 The plaintiff’s case as pleaded The plaintiff’s case is that it occupied the premises at 65 Mutare Road, Msasa, Harare as a statutory tenant after the termination by effluxion of time of its lease agreement with Crestlane Investments (Pvt) Ltd (hereinafter referred to as “Crestlane”). From the month of February 2010 the plaintiff ceased its business operations in order to secure funding to recapitalize the business. On 16 July 2010 the first defendant’s employees broke locks at the premises and removed the plaintiff’s equipment therefrom without the consent of the plaintiff. Plaintiff states that the conduct of the first defendant was wrongful and unlawful, and caused it loss because it could not resume its business operations. Plaintiff further alleges that the second defendant caused the plaintiff’s equipment to be sold by ABC Auctions, an entity that is in the business of auctioning property. It states that the first and second defendants at all material times “acted in common purpose when they caused Plaintiff’s bakery and other equipment to be removed from the leased premises and for the same to be disposed of”. The sum of USD1 300 000.00 which is being claimed represents the depreciated replacement value of the equipment, according to the plaintiff, hence the claim for damages. Defendants’ defence as pleaded The defendants raised the preliminary point that no cause of action was disclosed against them, and that there was material non-joinder of Crestlane which had a contractual relationship with the plaintiff and was the owner of the premises. On the merits, the defendants state that the plaintiff’s equipment was removed from the premises at the instance of Crestlane and not by them or at their instance. The removal followed the abandonment of the premises by the plaintiff. They state that the plaintiff actually instituted a claim against Crestlane which was dismissed for want of prosecution. They therefore deny that they evicted the plaintiff from the premises and state that the plaintiff’s property was removed by its landlord which took possession of the premises. Defendants also deny instructing or authorizing the disposal of the plaintiff’s property. The defendants further put in issue the quantum of damages suffered by the plaintiff. The issues The matter was referred to trial based on the issues as set out in the defendant’s draft pretrial conference minute which the parties adopted. These issues are as follows: HH 844-22 HC 1302/12 1. When, and by whom and in what circumstances was the plaintiff’s property removed from the premises the subject hereof? 2. Was such removal unlawful/wrongful? 3. Did plaintiff suffer any loss as a result of such removal? 4. Is such loss recoverable and from who? 5. If such loss is recoverable, in what amount? 6. Whether the second defendant has been properly joined to these proceedings. The evidence The plaintiff led evidence from Munyukwi Robert Armitage Chikwavira. He is a shareholder and the Managing Director of the plaintiff. He is also the Chairman of the plaintiff’s Board of Directors. He is an accountant by profession. His evidence may be summarized as follows: plaintiff was leasing the premises from Crestlane, the registered owners of the premises. After the termination of the lease by effluxion of time in November 2006 the plaintiff continued in occupation as a statutory tenant. At some point in 2007 Crestlane sought to remove the plaintiff from the premises but the plaintiff’s occupation was restored by order of court. Owing to financial challenges, in February 2009 the plaintiff discontinued its business operations at the premises, locked the premises with its equipment inside and stationed a security person to guard the premises at night. There was therefore no trading at the premises. It, however, continued to perform its obligations in terms of payment of rent for the premises. On 16 July 2010 the defendants broke into the premises and removed the plaintiff’s equipment. They replaced the locks. After receiving information from his wife that the first defendant’s employees were in the process of removing the equipment from the premises he went there and found the employees in action. There were about forty employees dressed in blue uniforms bearing the name of the first defendant. He spoke to the Chief Security Officer, one Bernard Madyara who advised that they had been instructed by the second defendant to remove the equipment. He went to see the second defendant who, in turn, directed him to the first defendant’s Operations Director one Kelvin Chenjelamango Tembo. Tembo showed him a letter written by Atherstone & Cook legal practitioners to the plaintiff’s then legal practitioners advising that Crestlane was repossessing the premises because the plaintiff had abandoned them. The letter had been delivered at Gill Godlonton & Gerrans, the then legal practitioners for the plaintiff, at 1540 hours on 15 July 2010. Plaintiff’s legal practitioners advised HH 844-22 HC 1302/12 him to make a police report. Later in the day he witnessed Nigel Earl and Ashton Ndlovu supervising the removal of the property from the premises. Also present was Arthur Mutsonziwa, a legal practitioner from Atherstone & Cook. When he tried to talk to them they referred him to the plaintiff’s then legal practitioners Gill Godlonton & Gerrans. He caused proceedings to be instituted against Crestlane, Nigel Earl and Ashton Ndlovu, but he abandoned the proceedings on the advice of the police. He decided to sue the defendants herein because of the contents of some Warned and Cautioned statements that had been shown to him by the police. Nigel Earl was a director of the first defendant but had resigned from Crestlane some five months before that. The witness referred to a statement by One Brett Patrick Krambergar of ABC Auctions from which he said instructions to deal with the plaintiff’s property came from the second defendant. The greater part of the witness’ evidence was a commentary on the documents such as the warned and cautioned statements and agreement with ABC Auctions. The quantification of the plaintiff’s loss was done by the witness himself. He could not locate the registers of the plaintiff’s property. Independent valuators could not assist him in the absence of the property. In collating the list of the property he relied on four sources, namely, a report that had been prepared by CB Richard Ellis in 2006, a list prepared by Lacho Freight ten days after the property had been removed from the premises, the Goods Received Voucher report from ABC Auctions, and his own recollection of the property that was at the premises. During cross-examination the witness admitted to seeing the correspondence exchanged between Crestlane’s legal practitioners Atherstone & Cook and the plaintiff’s erstwhile legal practitioners Gill Godlonton & Gerrans. Evidence for the defendants was given through two witnesses. These are Beverley Culverwell the second defendant who was the Managing Director of the first defendant at the relevant time, and Lindsay Eleanor Earl, a director and one of the shareholders of Crestlane. Their evidence was that Crestlane is not a trading company but owns the property from which the plaintiff was operating its business. Crestlane also has no employees. One Nigel Earl who is a shareholder in both the first defendant and Crestlane, gave instructions to the second defendant to engage Crestlane’s legal practitioners, Atherstone & Cook, to advise on the removal of the plaintiff from the property that it was occupying because the property had been abandoned and was being vandalised. Crestlane wanted to repossess the property. The first defendant was not involved in HH 844-22 HC 1302/12 the removal of the plaintiff’s property from the premises. Its employees as well as the employees of Lacho Tech who went to the property to do the work were working as agents of Crestlane and not in the capacity of employees of the first defendant. The property that was removed from the premises was put into storage by Crestlane, not by the defendants. The witnesses referred to the correspondence by Crestlane’s legal practitioners leading up to the repossession of the premises. The agreement for the storage of the property was between Lacho Freight and Crestlane. The witnesses stated that the instruction to ABC Auctions to sell the property came from Atherstone & Cook, the legal practitioners for Crestlane. Who removed the plaintiff’s property from the premises? It is common cause that the plaintiff’s property was removed from the premises on 16 July 2010. It is also not in dispute that the persons who removed the property from the premises included employees of the first defendant but the unchallenged evidence of the second defendant was that there were also employees of Lacho Freight. However, those employees are not cited as defendants herein. The issue that has to be determined is whether the conduct of the persons who were involved in the removal of the property is imputable to the defendants. The first defendant is a company which cannot commit a delict other than through the hands of natural persons. There must be a basis for imputing the conduct of the persons concerned to it, such as vicarious liability. Such a basis must be alleged in the pleadings and proved by evidence, Jonathan Burchell, Principles of Delict p 217. In casu there is no allegation to the effect that at the material times the employees concerned were acting in the course and within the scope of their employment with the first defendant. The plaintiff’s declaration in para 8 merely alleges that the first respondent “through its various employees” caused locks at the premises to be broken and “to uproot, dismantle and remove plaintiff’s bakery and other equipment from the leased premises”; then in para 14 it is alleged that “at all material times first and second defendant (sic) acted in common purpose”. The failure to allege in the plaintiff’s declaration that the employees concerned were acting in the course and scope of their employment means that the founding pleading does not set out the factual basis for imputing any liability to the first defendant. Even if it was to be taken that the cited passages from the plaintiff’s declaration were meant to impute vicarious liability upon the first defendant, the evidence led did not prove the requisites for that liability. The requirements for vicarious liability to be established are (a) that the person HH 844-22 HC 1302/12 who committed the delict was an employee of the defendant, and (b) that the delict was committed by the employee in the course and scope of his or her employment with the defendant, Biti v Minister of State Security 1999 (1) ZLR 165(S). In casu there is no dispute that some of the persons who carried out the removal of the plaintiff’s property from the premises were employees of the first defendant. What has to be determined is whether the employees concerned were acting in the course and scope of their employment with the first defendant. The true meaning of “within the course and scope of employment” has been discussed in many cases, see Minister of Police v Rabie 1986 (1) SA 117(A) at 774. In short, the employees must have been doing their employer’s work. The first defendant was not the owner of and did not require the premises that were occupied by the plaintiff. It was Crestlane which intended to take possession of the premises, and merely engaged the services of some employees of the first defendant. The letter of 15 July 2010 was written on behalf of Crestlane by its legal practitioners Atherstone & Cook. It was not written on behalf of the first defendant. This letter was written and served upon the plaintiff’s erstwhile legal practitioners on the same date that it was written. It alleged that the plaintiff had abandoned the premises. In para 2 the letter stated: “In the circumstances, our client has decided to retake possession of the premises for its own use.” The named client is Crestlane Investments (Private) Limited, not the first defendant herein. The same letter advised that the plaintiff’s movable property would be placed in storage. These are the events which followed on the following day, 16 July 2010. When the plaintiff alleges in para 9 of its declaration that the first defendant took control of the premises and commenced renovating the permanent structures thereat, it is being deliberately frugal with the truth. It knew that any persons who removed its property from the premises were acting as the hand of Crestlane. The first defendant’s security guards who were involved in the removal of the plaintiff’s property from the premises were clearly acting as agents of Crestlane rather than in the course and scope of their employment with the first defendant. Clearly the work that they were doing was not security work for the first defendant which is the work for which they were employed. The confusion of using the first defendant’s name interchangeably with that of Crestlane in the context of the criminal proceedings does not in any way take away the basic fact that these are two distinct juristic persons albeit one of the shareholders is common between them. A director of Crestlane HH 844-22 HC 1302/12 confirmed in evidence that the persons who removed the goods were acting on its behalf and not on behalf of the first defendant. The absence of a resolution from either the first defendant or Crestlane validating the removal of the goods through the hands of the persons involved is irrelevant in the face of the evidence of a director of Crestlane. The simple fact is that when they were removing the plaintiff’s property from the premises they were not doing the first defendant’s work. Equally, the second defendant did not remove the plaintiff’s goods from the premises. Indeed, the plaintiff’s managing director was told when he went to the premises during the removal of the property on 16 July 2010 that the removal was being undertaken by Crestlane, hence the letter of 15 July and the presence of Crestlane’s legal practitioner at the scene. Crestlane’s legal practitioner, Mutsonziwa, was in attendance at the premises when the property was being removed. However, plaintiff’s witness decided to take the advice of police officers to sue the wrong parties. Once he was shown the letter of 15 July 2010 any confusion regarding who was ejecting the plaintiff from the premises would not be justified. The fact that the second defendant engaged with Crestlane’s legal practitioners on the instruction of the shareholder of the first defendant does not create liability for her. She personally did not remove any of the goods from the premises. The use of her email address and contact details at the first defendant would not in any way cause confusion to the plaintiff’s representative who had always known that Crestlane was the owner of the premises, its landlord and the entity that had already advised of the removal of the plaintiff’s property from the premises. On 20 July 2010, four days after the removal of the property, the lawyers for Crestlane wrote a letter to the plaintiff’s then legal practitioners, Record 275. In that letter they confirmed that Crestlane had repossessed the premises and that the plaintiff’s property had been put in storage at Lacho Freight, 62 Mutare Road, Msasa, Harare. They warned the plaintiff to arrange for the collection of the property by end of business on Friday 23 July 2010. The storage agreement for the plaintiff’s goods was signed between Crestlane and Lacho Freight (Pvt) Ltd, which is the entity that removed the property from its premises. A further letter was written on 13 August 2010 advising that if the plaintiff failed to collect its property from storage the property would be disposed of to defray the storage costs. Correspondence addressed to ABC Auctions Sagittarian (Private) Limited by Atherstone & Cook on 20 September 2010 and to the plaintiff’s erstwhile HH 844-22 HC 1302/12 lawyers on the same date (Record 172 and 173) shows that it was Crestlane that placed the property under the custody of ABC Auctions. The plaintiff was always aware that Atherstone & Cook were legal representatives of Crestlane. They were not representing the defendants herein. Proceeding against the defendants in the face of the facts known to the plaintiff gives an impression that the proceedings were instituted for an ulterior motive rather than to genuinely recover a loss. Indeed, in Case No. HC 6754/10 the plaintiff did institute proceedings against Crestlane and two other parties seeking restoration of its occupation of the premises and the return of its property or, alternatively, payment of damages in the sum of US$610 016. Other than the amount which has now changed, the substance of that claim is essentially the same and was based on the same facts upon which the instant claim was founded. Paragraph 14 of the plaintiff’s declaration in HC 6754/10 avers as follows: “On 16th July 2010, first respondent (sic) yet again, forcibly evicted plaintiff from the leased premises, uprooting plaintiff’s equipment and machinery, in the process”. Changing lawyers in order to change the names of the defendants seems to be the only explanation for the filing of the summons in casu. The malice of the plaintiff as opposed to a genuine desire to recover its loss, is also evident from the fact that the plaintiff went on to report a case of theft of its property when it was always away aware that the property had been removed pursuant to a landlord/tenant dispute. The warned and cautioned statements for the second defendant (Record 179), Nigel George Earl (Record 180) and Kelvin Chenjelamangu Tembo (Record 181) allege theft. The circumstances in which the goods were removed, to the extent that these are relevant to the determination of this matter, are common ground. They are that the plaintiff was not operating business from the premises but still had its property thereon. Whether the premises had been run down or abandoned to justify the eviction or whether there was a failure to pay rent would have been relevant if the claim was against Crestlane. The answer to issue 1 disposes of issues 4 and 6. The loss is not recoverable from the cited defendants because they did not remove the plaintiff’s property from the premises to which the claim relates. Whether the removal of the property was unlawful/wrongful In view of the finding that the party that removed or caused the removal of the plaintiff’s property was Crestlane and not the defendants, the lawfulness of that conduct could only be HH 844-22 HC 1302/12 determined if Crestlane had been cited as a party and placed its defence before this Court. The non-joinder of Crestlane is material, and affects determination of the unlawfulness or wrongfulness or otherwise of the removal. No unlawful or wrongful conduct was established in relation to the defendants. Both defendants were not involved in the removal of the plaintiff’s goods. As found, the security guards who were involved in the active removal of the goods were not acting in the course and scope of their employment with the first defendant. They were not doing the first defendant’s work; and the work that they were doing fell outside the scope of their duties as guards. Equally, the second defendant was only involved by communicating with the legal practitioners for Crestlane. She did not remove the goods from the premises. Indeed, when the plaintiff’s managing director approached her on the day in question she referred to him to the persons who were involved in the removal of the goods. The plaintiff’s legal representative was in attendance. Whether the plaintiff suffered any loss as a result of the removal of the property and the quantum thereof Without doubt, the plaintiff has suffered loss following the removal and subsequent disposal of its property. It is common cause that the equipment that was removed from the premises is not in the possession of the plaintiff and it did not recover the full amount from the disposal of the property. However, such loss was not caused by the defendants. The correct measure of damages in this case would have been the value of the property at the time that the delict was committed, see Munhuwa v Mhukahuru Bus Service (Pvt) Ltd 1994 (2) ZLR 382(H). In other words, the plaintiff ought to have placed before the court the entire list of the property that was removed and was either lost or damaged. The value of such property would then have been placed before this court. The valuation prepared by CB Richard Ellis which the plaintiff’s witness sought to rely on is not helpful for two reasons. Firstly, there is no evidence that the same property that was there in 2006 when the report was prepared was there. Secondly, the value could not have remained the same four years later. The 2006 value is certainly not the value of the property at the time that the property was removed from the premises on 16 July 2010. The 2006 report is therefore irrelevant in proving both the lost property and the value thereof. The property listed in the goods received note prepared by Lacho Investments (Pvt) Ltd (Record 259-274) is the best evidence available in terms of proving the number of things that were removed from the premises and taken into storage. However, the goods received note does not HH 844-22 HC 1302/12 state the values of the items listed thereon. Evidence regarding the condition of the listed property was not given. It is noted that in many instances the plaintiff relied on quotations obtained for new things after 2010 (Record 210-223) and using his own accounting knowledge sought to attach a value to the property (Record 224-231) without giving evidence on the condition of each of the listed items. His explanation for not engaging the services of an independent expert is unconvincing. He would have given evidence of the condition of the property himself and left it to the independent valuator to assess the value based on his evidence. Instead, he chose to ascribe the value himself but gave no evidence of the condition of each item that forms the subject of the claim. A default position for the plaintiff would have been the actual values realized from the sales by ABC Auctions, Record 199-208). However, no witness was called to speak to these values and no reliance was placed upon them. Instead, the plaintiff seemed to rely on the ABC Auctions report only for the purpose of the list. It is not for the court to sit down and do the calculations for a litigant. The quantum of the loss suffered by the plaintiff following the removal of its property from the premises and the subsequent disposal of such property has therefore not been proved by evidence. Conclusion In all the circumstances, the plaintiff has failed to prove the liability of the defendants for the loss suffered following its eviction from the premises that it formerly leased from Crestlane. The plaintiff also failed to prove the damages suffered. Disposition In the result, the plaintiff’s claim against the defendants is dismissed with costs. Jakachira & Company, plaintiff’s legal practitioners Dube Manikai & Hwacha, defendants’ legal practitioners