Sanganayi Inn (Pvt) Ltd v The Crystal Club Lashers Bar & Night Club (817 of 2022) [2022] ZWHHC 817 (16 November 2022)

1 HH 817-22 CIV ‘A’ 188/22 SANGANAYI INN (PVT) LTD versus THE CRYSTAL CLUB LASHERS BAR & NIGHT CLUB HIGH COURT OF ZIMBABWE WAMAMBO & MUCHAWA JJ HARARE, 8, 20 September and 17 October, & 16 November 2022 Civil Appeal Mr T W Nyamakura with Mr S K Chivizhe, for appellant, Mr K Siyeba, for respondent, MUCHAWA J: This is an appeal against the judgment of the Magistrates Court in which the court a quo gave the following order after a full trial; “Judgment of absolution from the instance be and is hereby granted.” The brief background facts are that the appellant is the landlord of the respondent. The appellant who was the plaintiff in the court a quo, issued summons for the eviction of the respondent and all those claiming occupation through him , then defendant, from a property known as Lot 5 Tynwald, Kirkman Road Harare. A claim for arrear rentals for the period of October 2020 to June 2021 in the sum of USD6 300.00 payable in local currency at the prevailing auction rate was also made plus all outstanding City of Harare charges. Respondent was also required to surrender the appellant’s liquor licence for the premises and all related documents, plus interest at the prescribed rate and costs on a higher scale. The lease agreement between the parties had a clause 30 providing that where the appellant needed to refurbish and renovate the property, the appellant had a right to cancel the lease by giving three months’ notice to the respondent. Such a notice was given on 8 June 2020 but the respondent refused to vacate the property leading to the issuance of summons on 7 January 2021. HH 817-22 CIV ‘A’ 188/22 Disgruntled with the decree of absolution from the instance, the appellant filed this appeal with ten grounds of appeal. At the hearing of the matter, Mr Nyamakura advised that the appellant was abandoning the rest of the grounds save for grounds 1, 3 and 8 which I set out below as grounds 1, 2 and 3; 1. The court a quo grossly erred and misdirected itself by entering judgment of absolution from the instance when Plaintiff had proven on a balance of probabilities a case for eviction, arrear rentals and holding over damages and ancillary relief as claimed in the summons and particulars of claim. 2. The court a quo grossly erred and misdirected itself in fact and in law by failing to apply itself to the fact that eviction of the respondent was being sought by appellant on several grounds which were not mutually exclusive, being on grounds of breach of the lease agreement by failing to pay rent on due date and on grounds of refurbishment of the premises as provided in clause 30 of the said lease agreement. 3. The court a quo erred at law by mero motu entering absolution from the instance when no such relief had been applied for by the respondent. It is prayed that the appeal succeeds with costs and the judgment of the court a quo be set aside and substituted with the following; 1) The defendant and all persons occupying the property through him be and are hereby evicted from Lot 5 Tynwald, Kirkman Road, Harare. 2) The defendant and all persons claiming occupation through him be and are hereby evicted from the property described as Lot 5 Tynwald, Kirkman Road, Harare, forthwith through the Messenger of Court, or his lawful assistant including members of the Zimbabwe Republic Police. 3) Defendant shall pay arrear rentals for the months of October 2020 to June 2021 in the sum of USD 6 300.00 payable in local currency at the prevailing auction rate. 4) Defendant shall pay arrear rentals for September 20202 in the sum of ZWL$ 88 049.75 5) Defendant shall pay holding over damages from the date of summons to date of eviction at the rate of USD 700. 00 per month in local currency at the prevailing auction rate. 6) Defendant shall pay all outstanding City of Harare charges on the premises he is leasing. HH 817-22 CIV ‘A’ 188/22 7) Defendant shall pay interest on the above amounts at the prescribed rate of 5% per annum. 8) Defendant is ordered to surrender to plaintiff the plaintiff’s liquor licence for the premises and all documents pertaining to such licence, in defendant’s possession. 9) Defendant shall pay costs of suit on an attorney client scale. Mr Siyeba, counsel for the respondent took some preliminary points. One was that the original grounds 1, 3. 4, 5, 6, 7, 9 and 10 are vague and embarrassing and not clear and concise. As the plaintiff abandoned the rest of the grounds save for grounds 1, 3 and 8, it meant that this attack remained directed at only grounds 1 and 3 which are now grounds 1 and 2. After hearing the parties we found that these grounds are clear and concise as they set out succinctly and in unambiguous terms what the appellant’s case is and they inform both the court and the respondent the case to be resolved between the parties. This point in limine was therefore dismissed. The second point in limine raised was that the appeal had been brought before the wrong forum. Mr Siyeba submitted that the appeal should have been filed with High Court Commercial Division instead of the Civil Division as the Commercial Court was opened on the 1st of May 2022 and the appeal was only noted afterwards on 16 June 2022. It was argued that because of the case number in the court a quo, it is clear that the case emanated from the commercial court and the appeal should therefore lay with the High Court Commercial Division. Reference was made to r 43 of the Commercial Court Rules to argue that it is the court endowed with jurisdiction to hear the appeal. It was prayed that the appeal should be struck off the roll or referred to the proper forum. Mr Nyamakura submitted that the jurisdiction of the High Court is intact unless taken away by a rule of positive law and cited the case of Guwa & Anor v Willoughby’s Investments 2009 (1) ZLR 380 (S) @ 383 D-E to argue that the High Court will do everything unless it is forbidden to do so by law. Rule 43 of the Commercial Court Rules was said not to be peremptory as it uses the word “may”. Further, the Judicial Laws Amendment Bill was said not to be law yet. The Magistrates Court Act [Chapter 7:10], the High Court Act [Chapter 7:06] and the Constitution, it was contended, all give the right to entertain an appeal from the Magistrates’ Court to the High Court. The Commercial Court Rules were said to be incapable of amending these statutes. It was pointed out too that the Commercial Court Division is just that, a division and not a separate court. HH 817-22 CIV ‘A’ 188/22 A letter from the Chief Magistrate confirming that though the case reference in the court a quo implies it may be a commercial matter, it was in fact dealt with in the civil court. We reserved our ruling after hearing the parties. This is it. Section 40 of the Magistrates’ Court Act makes clear that appeals from the Magistrates Court lay with the High Court. The High Court Act settles the matter in s 30 where it provides as follows; “Jurisdiction in appeals in civil cases (1) The High Court shall have jurisdiction to hear and determine an appeal in any civil case from the judgment of any court or tribunal from which in terms of any other enactment an appeal lies to the High Court. (2) Unless provision to the contrary is made in any other enactment, the High Court shall hear and determine and shall exercise powers in respect of an appeal referred to in subsection (1) in accordance with this Act.” There can be no basis for arguing that the Commercial Division is the one with jurisdiction to entertain this appeal. There is no law which has been passed to oust the jurisdiction of the High Court. All there is are rules which are only subsidiary legislation. The Guwa & Anor supra case puts it thus; “The High Court, on the other hand, has the jurisdiction to hear all matters except where limitations are imposed by law. In other words, whilst the Supreme Court may do nothing that the law does not permit, the High Court may do anything that the law does not forbid.” Mr Siyeba did not point us to any law which forbids the High Court Civil Division from hearing this appeal. In any event, the Commercial Court is a mere division of the High Court. Furthermore, the Commercial Court Rules sought to be relied on use the word “may” instead of “shall”. This does not oust the jurisdiction of this court to entertain this appeal. We find no merit in this point in limine and dismiss it. We heard the parties on the merits and reserved our judgment. This is it and I deal with each ground of appeal, in turn, below, not necessarily in the order they are presented. I start with ground 3 of appeal. Whether the court a quo erred at law by mero motu entering absolution from the instance when no such relief had been applied for by the respondent HH 817-22 CIV ‘A’ 188/22 Mr Nyamakura submitted that what was before the court was rendering judgment on the merits after both parties had made submissions and a full trial yet the court granted absolution from the instance but none of the parties had applied for this. Reference was made to the case of Nzara v Kashumba & Ors SC18/18 to argue that it is the duty of the court to decide or matter before it and it evaded that responsibility by entering absolution from the instance. Mr Siyeba submitted that the court is empowered, in terms of s 18 of the Magistrates’ Court Act [Chapter 7:10], to grant absolution from the instance, if it appears to the court that the evidence led does not justify the court giving judgment for either party. Section 18 of the Magistrates’ Court Act is reproduced below; “18 Judgments The court may, as the result of the trial of an action grant— (a) judgment for the plaintiff in respect of his claim in so far as he has proved the same; (b) judgment for the defendant in respect of his defence in so far as he has proved the same; (c) absolution from the instance, if it appears to the court that the evidence does not justify the court in giving judgment for either party; (d) such judgment as to costs as may be just, including an order that one party pay the costs of the other party on a legal practitioner and client basis.” Section 18 (c) gives the court the option, at the end of a trial, to grant absolution from the instance, if it does appear to it that the evidence led by both parties does not justify the court in giving judgment for either party. It is clear that this option is exercisable by the magistrate at his/her own instance upon an assessment of the evidence and a finding that it’s a proper case to enter absolution from the instance. There is no need for either party to apply for the granting of absolution from the instance. The court a quo did not err in granting absolution from the instance mero motu. What remains to be resolved is whether this was a proper case to enter absolution from the instance or not. This will be resolved by considering the two remaining grounds of appeal. Whether eviction can be successfully sought on two or more grounds which are mutually exclusive It was submitted that the court a quo erred in concluding that the presence of two grounds of eviction nullifies a claim for eviction as there is no legal basis for such a finding. It was contended that a landlord has the right to institute eviction proceedings based on one or more grounds. All a landlord needs to do is to provide good and sufficient grounds for the eviction of HH 817-22 CIV ‘A’ 188/22 the tenant as per Kingstons Ltd v D Ineson (Pvt) Ltd 2006 (1) ZLR 451 (S) and FBC Building Society v Pavian Inv. (Pvt) Ltd HB 34/17. The above position is correct but it incorrectly captures what the court a quo said. Its position was not that one cannot seek eviction on two or more grounds which are mutually exclusive. This is what it said; “After analyzing the evidence from both parties the court noted that it is not clear as to the grounds the plaintiff is basing its claim for eviction on, in that in the summons it is claimed that the defendant is in breach of the lease by failure to pay rentals. The notices sent to the defendant do not talk of rental arrears but rather indicate that the plaintiff wants to renovate the place. During the trial the plaintiff added that the defendant was operating illegally in that he had no valid liquor licence but did not prove that on a balance of probabilities and it is apparent that the plaintiff is working on assumptions. The other issue is that the plaintiff indicated that the defendant is subletting the premises illegally but again failed to prove that and again it was working on assumptions. At the end of the day the plaintiff has failed to prove its case on a balance of probabilities in that it failed to clarify the grounds upon which they are seeking the eviction of the defendant.” It is evident that the court was concerned with whether or not the now appellant had discharged its onus of proof on the different grounds set out as the basis for the eviction in the summons. Because eviction can be sought on one or more grounds, if the appellant had discharged the onus of proof on any one of the pleaded grounds, the court a quo would have been satisfied. This ground of appeal is therefore inconsequential as it reflects a clear misunderstanding of the court a quo’s reasoning. I move to consider the crucial question in this matter below. Whether the court a quo grossly erred and misdirected itself by entering judgment of absolution from the instance when the Appellant/Plaintiff had proved its claim The appellant’s claim was that it had entered into a lease agreement with the defendant for the property in question and the respondent had breached the lease agreement by failing to pay rentals for September 2020 in the sum of ZWL$ 138 049.75 and rentals for October 2020 to June 2021 at USD 700.00 per month in the total sum of USD 6 300.00 payable in local currency at the prevailing auction rate. It was averred that despite notice to vacate by 30 September 2020, the respondent had remained in occupation illegally. In addition, it was stated that a further breach of the lease was that the respondent was operating illegally without a liquor licence resulting in raids by the law enforcement agents risking saddling the appellant with penalties for operating illegally. In addition, the appellant claimed that the respondent had outstanding City of Harare bills and charges. HH 817-22 CIV ‘A’ 188/22 Mr Nyamakura submitted that once the appellant made its averments, the onus of proof shifted to the respondent to show its timely payment of rentals and to dispel the grounds relied on for the eviction as bad at law as per Kingstons Ltd v D Ineson (Pvt) Ltd supra. In its plea, the respondent averred that it had never failed to pay rent and had tried to make payments but the appellant had refused to accept payments as shown in certain letters from its legal practitioners. The notice of termination of the lease was alleged to be defective on the basis that the lease had been agreed to be for an undisturbed 5 year term renewable every year. The appellant was said to be the one which had breached the lease agreement, though the particulars were not set out. On the liquor licence, the respondent had claimed that it was the holder of a valid liquor licence since it started its operations in 2017 and this had been renewed annually. It was denied that the respondent was in arrears for City of Harare service bills. During submissions before us, Mr Siyeba raised a novel argument which does not appear in the pleadings. He stated that the respondent had an agreement with the agent of the appellant and they had agreed that rentals would be paid at 50% and no rentals were due because of the principle of remission of rentals as a result the Covid 19 Lockdown and the Presidential Powers (temporary Measures) (Deferral of Rent and Mortgage Payments During National Lockdown) Regulations, 2020 SI 96/2020. Mr Nyamakura quickly shot this argument down on the basis of s 3 thereof which states that the Regulations only applied to people occupying rented accommodation for residential purposes and not commercial tenants such as the respondent. In addition this argument was not pleaded and Mr Siyeba cannot be allowed to give evidence from the bar. The appellant took the matter of Kingstons Ltd v D Ineson (Pvt) Ltd supra, out of context as it was a matter dealing with the requirements to be proved to succeed in a case of an application for summary judgment. It was held; “Not every defence raised by a defendant will succeed in defending a plaintiff’s claim for summary judgment. Thus what the defendant must do to raise a bona fide defence – a ‘ plausible case’ – with ‘ sufficient clarity and completeness’ to enable the court to determine whether the affidavit discloses a bona fide defence. He must allege facts which, if established, ‘would entitle him to succeed.’ See Jena v Nechipote 1986 (1) ZLR 29 (S) ; Mubayiwa v Eastern Highlands Motel (Pvt) Ltd (S) – 139-86; Rev v Rhodian Investments Trust (Pvt) Ltd 1957 R&N 273 (SR)”. Because the case was dealing with a landlord –tenant relationship the court went on to say, HH 817-22 CIV ‘A’ 188/22 “Our courts have held that the landlord need do no more than assert his reasons in good faith and then bring some small measure of evidence to demonstrate the genuineness of his assertion and it rests upon the lessee who resists ejectment to bring forward circumstances casting doubt on the genuineness of the lessor’s claim.” This case is different. It was an action for the eviction of the respondent, specified arrear rentals and holding over damages amongst other things. In the case of Astra Industries Ltd v Peter Chamburuka SC 27/12, it was held that the position is now settled in our law that in civil proceedings, a party who makes a positive allegation bears the burden to prove such allegation. The standard of proof in a civil case is proof on a balance of probabilities. See ZESA V Dera 1998(1) ZLR 500 (SC) The appellant alleged that the respondent was in rental arrears and the first witness led evidence from the tenancy statement to show that there were arrears amounting to a closing balance of $88 409.75 as at 30 September 2020 and that rentals had been last paid in 2018. See record page 26 to 29. The further evidence on page 47 shows that the respondent had received a letter dated 2 September 2020 which gave a deadline for the clearance of the arrears by 11 September 2020. Evidence from Chipo Reid an estate agent managing the property on page 49 shows that the respondent failed to clear the balance by the deadline given or even up to the end of September when they were still managing the property. She further said that they had never refused to accept rentals. Another agent from Lizhibhowa, on p 57 of the record testified that the respondent was inconsistent in rental payments as they paid late or did not pay. The respondent’s case was that it was not in arrear rentals as it had agreed with an agent at Kennan properties to pay 50% of rentals during lockdown. It was also pleaded that the appellant had refused to accept the rentals and such money was in its legal practitioners trust account. The evidence does show that there were indeed rental arrears in September 2020 but the respondent only asked for account details on 20 October 2020. Both agents who gave evidence confirmed the history of rental arrears. See pages 78 and 80 of record. Though the respondent claimed the rentals were in its legal practitioners’ trust account, no proof of this was tendered. There was no proof of the appellant’s agent having refused to accept rentals at the relevant time. By arguing that it had agreed to 50% rentals with an agent at Kennan during the lockdown, the respondent’s witness was in fact agreeing that they breached the lease agreement as there is an express non-variation clause in the lease agreement. See pp 64 and 99 of record. Any variation to HH 817-22 CIV ‘A’ 188/22 the lease terms was to be in writing and the contracting parties had to sign. No such evidence was pointed to. No legal basis was provided for the rent reprieve which the respondent claimed as the regulations referred to above, only applied to residential and not commercial properties It is my considered view that the appellant was able to prove, on a balance of probabilities, that the respondent had breached the lease agreement by failing to pay rentals for specified amounts. This is a material term of a lease agreement. In the case of Altem Enterprises (Pvt) Ltd v John Sisk (Pvt) Ltd SC 4/2013, it was held as follows; “The position is settled that a tenant has no right to occupy property save in return for payment of rent” The evidence in relation to the liquor licence and whether the respondent was operating illegally and the other bases for the eviction may have been unclear as to whether the appellant had proved its claim. I will not go into an analysis of that as the appeal succeeds on this aspect of non- payment of rentals only. The court a quo therefore erred by entering judgment of absolution from the instance. It is a term of the lease agreement that upon termination of the lease, the respondent shall surrender all relevant regulatory licences obtained in respect to these premises. See page 94 of the record. On the same page, it is expressly provided that the respondent shall pay for owner’s rates and taxes, refuse and sewage charges. These are payable to City of Harare. Costs generally follow the cause. I accordingly order as follows; 1. “The appeal succeeds with costs. 2. The judgment of the court a quo be and is hereby set aside and it be substituted as follows; a) The defendant and all persons occupying the property through him be and are hereby evicted from Lot 5 Tynwald, Kirkman Road, Harare forthwith through the Messenger of Court, or his lawful assistant including members of the Zimbabwe Republic Police. b) Defendant shall pay arrear rentals for the months of October 2020 to June 2021 in the sum of USD 6 300.00 payable in local currency at the prevailing auction rate c) Defendant shall pay arrear rentals for September 2020 in the sum of ZWL $ 88 049.75 HH 817-22 CIV ‘A’ 188/22 d) Defendant shall pay holding over damages from the date of summons to date of eviction at the rate of USD 700.00 per month in local currency at the prevailing auction rate. e) Defendant shall pay all outstanding City of Harare charges on the premises he is leasing f) Defendant shall pay interest at the prescribed rate of 5% per annum. g) Defendant is ordered to surrender to Plaintiff the Plaintiff’s liquor licence for the premises and all documents pertaining to such licence in Defendant’s possession. h) Defendant shall pay costs.” MUCHAWA J----------------------------------------------------------------------------- WAMAMBO J Agrees-------------------------------------------------------------------- Anesubryan & David, appellant’s legal practitioners Mupindu Legal Practitioners, respondent’s legal practitioners