Mugwambi v Marara (CIV A 203 of 2013) [2015] ZWHHC 545 (16 June 2015)

1 HH 545/15 CIV (A) 203/13 ELLIOT MUGWAMBI versus ANDERSON MARARA HIGH COURT OF ZIMBABWE CHIWESHE JP & MAKONI J HARARE, 12 November 2013 and 17 June 2015 Civil Appeal MAKONI J: This is an appeal against a judgment delivered by the magistrates’ court on 8 April 2013. The background to the matter is that the respondent was the appellant’s tenant from 2006. During the course of his tenancy, and sometime in 2009, he shared the property with one Chifamba. It is common cause that it is the respondent who brought Chifamba onto the property. Chifamba vacated the property in January 2012, and the appellant in November 2012, leaving outstanding electricity and water bills. There was damage to the property. On 8 September 2012 the respondent acknowledged that he would pay for all the damage to the window panes, buy two new doors and that he would pay arrear bills for water and electricity. The respondent did not honour the agreement and the appellant instituted proceedings in the court a quo. The appellant partly succeeded and the respondent was ordered to: (i) (ii) pay US $187-80 for water and US$193-85 for electricity. pay for one door and four window panes. (iii) cost of suit. Aggrieved by the decision of the court a quo he then filed the present appeal. The grounds of appeal relied on by the appellant are that the learned magistrate erred when he made a finding that the respondent pays less than what the respondent had admitted to and that appellant sues Chifamba for the remainder of the debt. HH 545/15 CIV (A) 203/13 It is not in dispute that at the time the respondent vacated the property there were outstanding water and electricity bills amounting to US $1 007-93. It was the respondent’s contention that Chifamba should pay his share of the bill whilst the appellant contended that Chifamba occupied the property through the respondent. It was the respondent’s responsibility to ensure that Chifamba paid for his part of the bill. It is clear from the evidence that Chifamba came to live on this property at the invitation of the respondent. This is confirmed on p 47 of the record where the respondent said: “The rentals were high so I needed someone to share the rentals with.” He also confirms that initially Chifamba would pay rentals to him. He suggested that later on, when the appellant was aware of Chifamba’s presence, Chifamba would pay rentals to the appellant directly. This factor is disputed by the appellant. The respondent did not produce any evidence to support the contention that Chifamba eventually paid rent directly to the appellant. The appellant, on the other hand, presented an acknowledgment of debt whereby the respondent undertook to pay all outstanding bills. There is no mention of Chifamba in that document. It is my view that the learned magistrate erred in not having regard to the acknowledgment of the debt produced by the appellant. In his judgment he did not give reasons for disregarding the acknowledgment of debt when dealing with the issue of outstanding bills. Curiously, and later on in his judgment, he discounts the appellant’s evidence regarding the list of damaged property on the basis that what the appellant was now claiming was not listed in the acknowledgment of debt. At p12 of the record he remarks: “There is an agreement which was agreed upon by the 2 parties. The plaintiff should have written down everything that he wanted the defendant to pay.” As regards the issue of damage to the property, the decision of the court a quo cannot be faulted. His finding that the appellant should have recorded everything that he wanted the respondent to pay is correct. In the result I make the following order: 1. Appeal succeeds only in part. HH 545/15 CIV (A) 203/13 2. The order of the court a quo in relation to the payment of the water and electricity bills is set aside and substituted with the following: (i) The respondent shall pay the appellant the sum of US $1 007- 93 being US $326 - 80 for the water and US681-13 for the electricity. (ii) The respondent to pay the appellant costs of this appeal. CHIWESHE JP agrees:…………………………………….