Madamombe v Mubwandarika (CIV “A” 458 of 2015; HH 90 of 2016) [2016] ZWHHC 90 (4 February 2016)

1 HH 90-16 CIV “A” 458/15 STANLEY MADAMOMBE versus CAROLINE KUZIVAKWASHE MUBWANDARIKA HIGH COURT OF ZIMBABWE CHITAKUNYE & NDEWERE JJ HARARE, 30 June 2015 and 4 February 2016 Civil Appeal CF Nyamundanda, for the appellant SM Chisoko, for the respondent NDEWERE J: It is common cause that the appellant and the respondent entered into a lease agreement for Stand No. 2097 Glen Norah B Shopping Centre. There were various issues of discomfort which arose when the appellant sought to occupy the premises which he had leased caused by City Council expectations. As a result, on 26 October, 2012 his legal practitioners wrote a letter to the respondent’s legal practitioners narrating the frustrations which the appellant had experienced as he tried to get City of Harare authority to use the premises for his business. The conclusion of the letter on p 63 of the record was worded thus; “17. To that end, our instructions are to demand, as we hereby do, that the lease agreement be terminated forthwith and that your client reimburses ours in full, the rent deposit; rentals paid to date between July 2011 and October 2012, and all improvement costs on the leased premises on or before 30th November, 2012, failure of which our client will have no option but to institute appropriate proceedings to recover same and punitive costs. 18. It is our sincere hope that your client will find it reasonable and we implore that you prevail upon her to resolve this matter amicably as opposed to spoiling for the proverbial bruising and costly litigation. 19. We advise accordingly.” The respondent replied to this letter on 23 November, 2012 through his legal practitioners. The respondent, in principle, agreed with the principle of cancellation of the HH 90-16 CIV “A” 458/15 agreement between the parties, but for different reasons. She then requested that she be allowed to inspect the premises and to be present when appellant vacated the premises. She demanded that all outstanding rentals be paid. Appellant’s legal practitioners responded to the letter of 23 November, reiterating his position as stated in the letter of 26 October, 2012. On 17 December, 2012, the appellant issued summons against the respondent in the High Court in line with his letter of 26 October, 2012. On 30 January, 2013, the respondent issued summons in the Magistrates Court against appellant seeking cancellation of the lease agreement, eviction of the appellant and payment of arrear rentals and holding over damages. She also sued for payment of electricity bills plus interest on all amounts claimed and costs of suit on a legal practitioner and client scale. The magistrates court case proceeded to trial. By the time the matter went to trial, the parties had agreed that there was only one issue for determination which was whether the defendant (who is the appellant in the current case) should pay arrear rentals and holding over damages from November 2012 to March 2013 in the sum of US$20 000-00. The magistrate ruled in favour of the respondent who was the plaintiff in the court a quo and ordered that defendant pay US$20 000-00 to the plaintiff for arrear rentals and holding over damages after finding that the appellant had remained in possession of the property up to 13 March, 2013 when he surrendered the keys. On 25 October, 2013, the appellant noted an appeal against the whole judgment of the magistrate. His grounds of appeal were as follows: a) The learned magistrate erred in holding the appellant liable over damages in respect of the leased premises which the respondent herself acknowledged during trial that the defendant vacated by 30 October, 2012. b) The learned magistrate erred and misdirected herself in refusing to accept that the respondent as a principal of her legal practitioners was bound by the action or inaction, commission or omission of her agent, her legal practitioners. c) The learned magistrate erred in finding that the appellant had possession and control of the premises despite the respondent having admitted in evidence that the appellant vacated the leased premises end of October 2012. HH 90-16 CIV “A” 458/15 d) The learned magistrate erred and misdirected herself in refusing to accept and take into cognizance the fact that the respondent’s legal practitioners were notified and aware of the vacation by appellant as well as the availability of keys to the leased premises. e) The learned magistrate erred in refusing to accept and take into cognizance the fact that the respondent’s legal practitioners were to blame for their failure, omission to notify the respondent of the availability of keys to the premises, therefore erred and misdirected herself by holding appellant responsible for the holding over damages. f) The learned magistrate erred and misdirected herself in failing to accept and take into cognizance the repeated reminders by the applicant’s legal practitioners to respondent’s legal practitioners regarding the collection of keys. The grounds of appeal are all about the vacation of the premises by the appellant and the collection or surrender of the keys for the premises. The issues in this appeal are when did the appellant vacate the premises and when did he surrender the keys to the respondent or alternatively when were the keys to the premises availed to the respondent or collected by the respondent. The responses to the above questions will determine whether any rentals or holding over damages were due to the respondent. The appellant relied throughout the proceedings on his letter of 26 October 2012. That letter demanded that “the lease agreement be terminated forthwith” and all rentals and rent deposit be reimbursed. The appellant argues that after that letter, the lease was terminated so no rentals were due from him after October, 2012. The magistrate found otherwise. She looked at the lease and observed that in terms of clause 20 of the lease, 3 months written notice to the lessor had to be given in order to terminate the lease. The appellant did not give any notice, so according to the magistrate’s finding, if the 26 October 2012 letter is taken as the notice, then the lease could only have been cancelled from December 2012. In fact, the correct calculation of the three months would take the notice period to January of the following year. Therefore the magistrate’s finding that the lease agreement was not cancelled forthwith because of clause 20 of the agreement, and that the lease was still valid from November onwards is correct and cannot be faulted. This means the appellant was liable for rentals for November, December and January, in terms of the lease agreement. HH 90-16 CIV “A” 458/15 Then as regards the keys, it is clear that the letter of 26 October, 2012 said nothing about the keys and it is common cause that the appellant, directly or through his legal practitioners, remained with the keys till 13 March, 2013. The chronology of the dispute is that on 26 October 2012, the appellant alerted the respondent about his intention to cancel the lease. In her communication of 23 November 2012, the respondent agreed to the principle of cancellation of the lease but wanted the appellant to vacate after an inspection and in her presence. So by 23 November 2012, the keys were still with the appellant. On 4 December, 2012, the appellant responded to the 23 November 2012 letter, threatening court action. There is nothing about surrender or collection of the keys in that communication. The first communication about the keys is contained in a 12 February 2013 letter. That letter in para 8, p 68 of the record, states the following: “8. For the record and avoidance of doubt, our client implemented his decision to terminate the lease by vacating the premises on 31 October, 2012 and placed a guard thereat to protect your client’s premises pending the repossession and or occupation of the premises by your client”. The placing of a guard at the premises “pending the repossession” of the premises by the respondent was an acknowledgment by the appellant that he still possessed the premises and therefore he secured them, at his expense, pending their “re-possession” by the respondent. Paragraph 11 reads as follows; “11. To that end, please kindly remind your client to take possession and or occupation of her shop, which she should have done way back in October, 2012, the keys to which are obtainable from our offices by prior arrangement.” This is the first time that the issue of handover of the keys is raised, on 12 February 2013. “12. Further stand advised that our client will be terminating the security guarding services deployed at your client’s shop with the security company effective close of business on Friday, 15 February 2013.” This letter clearly shows that while the notice period of three months from 1 November 2012 was over, the appellant still remained in possession of the premises through his failure or omission to surrender the keys to the respondent. He says he vacated the premises on 31 October 2012, but confirms retaining control of the keys up to February, 2013 when this letter was written. The magistrate was therefore correct in making a finding that holding over damages HH 90-16 CIV “A” 458/15 were payable by the appellant since he remained in possession of the premises by holding on to the keys. Holding over damages are usually the same amount as the monthly rental so it was common cause that holding over damages would also be $4 000-00 per month. The appellant finally handed over the keys to the respondent in his letter of 13 March 2013. Paragraph 2 of that letter, which is on p 73 of the record, stated the following: “2. Please kindly find herewith enclosed the keys to your client’s shop which your client has failed, refused and/or neglected to collect same from our offices despite us notifying you in writing more than a month ago to the effect that the keys were ready for collection. 3. For the avoidance of doubt, our client is stopping to place a guard at the shop premises effective today and there will be no guard.” So the appellant held on to the keys till 13 March 2013. There is no reason why he did not dispatch them earlier to the respondent as he did on this date. He continued to guard the premises because he knew that for as long as he had the keys to the shop, the respondent would not be able to repossess the shop and he would remain liable for any eventuality. So it is only proper that he pays the holding over damages up to March 2013, when he eventually surrendered the keys. The rentals and holding over damages for a total period of 5 months amounted to a total of $20 000-00. There being no misdirection in the magistrates’ decision, the appeal is hereby dismissed with costs. CHITAKUNYE J agrees: __________________ Muhonde Attorneys, appellant’s legal practitioners Muvhingi & Mugadza, respondent’s legal practitioners