Judgment record
Tobacco Sales Floor Limited versus Swift Debt Collectors (PVT) LTD t/a Ruby Auctions
HH 111-11HH 111-112011
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HH 111-11
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TOBACCO SALES FLOOR LIMITED
versus
SWIFT DEBT COLLECTORS (PVT) LTD
t/a RUBY AUCTIONS
HIGH COURT OF ZIMBABWE
GOWORA J
HARARE, 22 March and May 2011
D Halimani, for the applicant
T R Hove, for the respondent
GOWORA J: The applicant is the registered owner of a warehouse situate at
Tobacco Sales Floor Complex, Gleneagles Road, Harare. The applicant carries on
business at the said premises as a tobacco auction floor. On 11 July 2007 the applicant
concluded a written agreement with the respondent in terms of which the latter leased
from the applicant a portion of the warehouse; to wit an area of 1241.91 square metres.
The lease was to endure for a period of three years, commencing on 1 June 2007 and
terminating on 31 May 2010. On 14 December 2009 the applicant addressed a letter to
the respondent and informed it that it would not be renewing the lease as the premises
were required by the applicant for its own use. A further letter was written to the
respondent on 29 April 2010 again reiterating its position that it intended to use the area
occupied by the respondent and that consequently the lease would not be renewed at the
expiry of the lease period. The applicant contends that it intends to use the premises for
its expansion program and that this constitutes good and sufficient grounds for this court
to grant an order for the ejectment of the respondent from the premises it is occupying.
The respondent denies that the applicant is entitled to an order for its eviction on
several grounds. Firstly, it argues that the lease agreement was verbally extended when
the applicant accepted payment for rent for the month of June 2010. The respondent also
contends that during the currency of the written lease agreement a pattern of behaviour
had emerged on the part of the applicant, where each time the applicant considered that
there were arrear rentals, the applicant would send a written notice to the respondent
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requiring it to vacate the premises on the basis of the alleged arrears. Hence, upon
receiving the two notices of December 2009 and April 2010 it made the decision that it
would not vacate the leased premises.
Secondly, the respondent avers that the applicant’s former Managing Director had
advised it to ignore the notice to vacate and consequently, based on that advice, a
decision was made to ignore the notice. The respondent also considers that the reason
why the applicant seeks its eviction is because the parties had initially negotiated to set
up a partnership in the respondent’s business. This fell through and it is the belief of the
respondent that this is the motive for the applicant to actively seek the eviction of the
respondent from the premises. The respondent therefore doubts that the applicant is
acting in good faith.
Lastly, the respondent contends that there exist disputes of fact such that this court
cannot, on the papers decide whether or not the lease was renewed with Mr Mangena and
that the court would need to hear from Mr Mangena on the issue relating to the alleged
renewal. If the lease was not renewed then the respondent would be a statutory tenant and
the applicant would need to show that it was acting in good faith.
In answer to the papers filed by the respondent, the applicant filed together with
its answering affidavit, an affidavit from the Chairman of the Tobacco Industry
Marketing Board. The affidavit was commissioned by an R Gunn whom both parties
agree is a member of the board of directors of the applicant. The respondent has therefore
in its heads of arguments raised a point in limine challenging the admissibility of the
affidavit in question. The respondent contends that the said Gunn is an interested party
in these proceedings and that as such, the affidavit commissioned by him should not
considered by this court as Gunn cannot be considered as unbiased. According to the
respondent, Gunn has a pecuniary interest in the proceedings before me and consequently
the affidavit he commissioned is tainted and should not be regarded.
Per contra, the applicant contends that by virtue of the provisions of s 3 of the
schedule to the regulations, the affidavit is exempted from the prohibition contained in S
2 of the Justices of the Peace and Commissioners of Oaths (General) Regulations , 1998
S.I 183/98. The prohibition contained in s 2 is as follows;
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“(1) No justice of the peace or commissioner of oaths shall attest any affidavit relating
to a matter in which he has any interest.
(2) Subsection (1) shall not apply to the affidavits specified in the schedule.”
The schedule to the regulation lists a number of persons who are exempted from
the prohibition contained in s 2 above. The applicant contends that Gunn is covered by
the exemption contained in s 3 of the schedule which is to the following effect:
“ 3. Affidavits attested to by a person who is neither a legal practitioner nor a member
of the Public Service and whose only interest therein arises out of his employment
and in the course of his duty.”
Gunn is not a legal practitioner nor is he a member of the Public Service. He is a
director in the applicant. Apart from being a director of the applicant, I have not been
given anything to suggest that he has interest in the applicant extending beyond his
occupation of a seat on the board of directors. Miss Hove suggests that by virtue of his
being a director he has a pecuniary interest in the resolution of the matter as it would be
in the interests of the applicant for the respondent to be ejected from the premises.
It is generally accepted that the word interest must be given a limited meaning,
and cannot be extended to cover the remote and indirect interest that an employee of an
attorney has in the matters dealt with in the attorney’s office.
Neither counsel addressed the question of the exception as it relates to the director
of a company. It must be accepted that a director of a company occupies a position
materially different from that of an employee. It is common cause that in this case Gunn
is not an executive director of the applicant. According to Cilliers & Benade 1 the mere
fact of holding officer as a director creates no contractual relationship between the
company and the director. The articles of association of the company also do not create
such a relationship. In addition, the occupation by a director of the position of director
does not make him an agent of the company, it also does not make him an employee
unless he has entered into a separate contract with the company as such.
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Corporate Law 3rd Edition p117
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Gunn is not an employee of the applicant nor could he have attested to the
affidavit in the course of his duties. It cannot be the function of directors of the applicant
to attest to affidavits. The exception therefore does not apply to him. What remains to be
decided is whether or not, as a director of the applicant he can be said to have an interest
in the matter before me.
What is clear and obvious is that the policies of a company are carried out and
implemented through decisions made by the board of directors. Being an artificial person
the board of directors of a company is its human agency. In the present circumstances it
therefore becomes pertinent to determine if the board, of which Gunn is a member, can
be said to have an interest such as would disqualify one of them from attesting to an
affidavit in a matter in which the company has an interest.
The case before me is not specifically to do with a financial dispute, it is
concerned rather with the applicant wishing for the lawful eviction of the respondent
from its premises. The board of the applicant would not be performing its functions as a
board if it did not ensure that this happens as ultimately the applicant would stand to
benefit in the long run from the eviction. In ant event, it is trite that litigation involving a
corporate must be authorised by such entity. Gunn as a member of the board would have
been one of the people who actually authorised the litigation to evict the respondent. The
deponent to the founding affidavit filed on behalf of the applicant could only have done
so on the authority emanating from the board. If the board sanctioned it, it therefore
stands to reason that Gunn was aware of the litigation to evict the respondent. The reason
for the applicant seeking the eviction of the respondent is that it has expectations of an
increase in the deliveries of tobacco to its floors. This has a financial benefit, in that it
would not make business sense for the applicant to seek to remove a tenant from its
premises unless such result would be of financial gain to it in the long run. In any case its
business is auctioning of tobacco so an increase in deliveries can only result in more
revenue for it.
What constitutes interest has been defined in a number of authorities emanating
from South Africa, but not yet in this jurisdiction. It appears settled that interest goes
beyond social or ethical interest. Interest in the context of this matter would be
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synonymous with an expectation of a favourable result from this court. Where the person
administering the oath and ultimately commissioning the affidavit has an interest in the
contents of the affidavit it is clear that there is an element of bias on the part of the
commissioner. Further where one is associated with a party or who filed proceedings in a
matter and the person concerned is required to administer an oath to a deponent to an
affidavit which has a bearing on the outcome of the litigation brought by the party he has
an association with, then clear bias can be said to exist. A commissioner has a duty to
ensure that a deponent to an affidavit swears to the truthfulness of the contents of the
affidavit. If the commissioner himself is not just acquainted with the facts, wishes them to
be placed before the court and wishes that the court has regard to them in the resolution
of a dispute, I would suggest that such commissioner has an interest going beyond mere
social or ethical interest. The applicant has a proprietary interest to protect, and Gunn, as
a director in the Board running the affairs of the applicant cannot be said be said to be a
disinterested party.
In the circumstances of this case, is the position contended by the applicant that
Gunn does not have an interest in the determination of this matter in his capacity as a
director of the company sustainable? The short answer is that he would have an interest
and that evidently, a board resolution to the effect that the respondent be evicted had been
passed. In my view, Gunn has an interest in this matter and the affidavit that he attested
to as commissioner of oaths cannot be given regard to in the determination of the dispute.
It has been tainted.
I turn now to the merits of the application. The applicant has sought the eviction
of the respondent from its premises on the premise that it has good and sufficient grounds
to require the eviction of a tenant. This is relief that is available in a situation where there
is no formal lease between the parties and the tenant has by some process become a
statutory tenant. The averment is made that the lease between the parties has expired. The
applicant did not however, in its founding affidavit refer to the respondent as a statutory
tenant.
The respondent contends in argument that this omission is fatal to the applicant’s
case as it has sought to establish its case in the answering affidavit. I note, however, that
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in the opposing affidavit the respondent’s chairman, Lyton Shumba makes the averment
in para 11a.4 thereof to this effect:
“If the existence of the lease is proved then the question of good and sufficient
cause falls away. If the existence of the lease is disproved then we are a statutory
tenant and the applicant still has to show that it is acting in good faith and
demonstrate good and sufficient cause to evict us.”
I find it mischievous therefore for the respondent’s legal practitioners to seek to
argue that the applicant had not on its initial application based its claim on the status of
the respondent as a statutory tenant. The respondent does not allege or aver that the lease
agreement is still extant. Instead, the whole tenure of the opposition is to the effect that
the written agreement had expired but that a verbal lease agreement had then been
concluded between the parties, but in the event that such lease agreement was not
established on the papers, then and in that event the respondent was a statutory tenant and
that the applicant had to establish good and sufficient grounds for its ejectment. It is clear
therefore that the respondent accepts that the lease agreement signed by the parties on 11
July 2007 expired on 31 May 2010.
It becomes necessary then to decide whether or not the respondent and the
applicant entered into a verbal agreement as contended by the respondent. In para 4a of
the affidavit of Shumba it is averred that the lease agreement was renewed with P
Mangena the former Managing Director of the applicant. There is no indication of who
represented the respondent. The date when the renewal was agreed is also not mentioned.
All that is said is that the lease was renewed for a further period of three years and that
the rental was set at US$ 600 per month. The deponent states that they were told that they
would receive a new written lease agreement shortly thereafter. It never arrived.
The respondent admits that it received a notice from the applicant December 2009
requiring it to vacate the premises at the end of the lease period, but states that the parties
were embroiled in a rent dispute wherein the landlord was demanding rent of US $1 200.
The respondent was offering US $ 600. The deponent states that by the time the reminder
to vacate was sent in April 2010 the respondent had been advised by the Managing
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Director of the applicant to ignore the notice and pay rentals as the lease had been
renewed for a further three years.
In argument, both written and oral, it was the contention of Miss Hove that there
are numerous disputes of facts to such an extent that this court cannot decide the matter
on the papers before it. The respondent suggests that the matter should be referred to trial
so that it can call Mr Mangena, the applicant’s former managing director to give oral
evidence as to the dealings between the applicant and the respondent, and specifically for
him to come to court and explain why he concluded a verbal lease agreement with the
respondent, its terms and why the rental was not increased. The respondent contends
further that the applicant cannot confirm or deny the existence of lease, and that the only
person who can do this is Mangena who must therefore speak for himself. The
respondent also wishes for an opportunity to cross examine him on the issue.
The applicant strongly denies the existence of any disputes of facts as alleged by
the respondent. The applicant contends that where there is an allegation that disputes of
fact exist the law is that court, must, if possible take a robust view and common sense
approach and not take an over fastidious view of conflicts and must seek to resolve the
dispute despite apparent conflict. See Masukusa v National Foods Ltd & Anor 1983(1)
ZLR 232 and Zimbabwe Bonded Fibreglass v Peech 1987(2) ZLR 338 (S). In Zimbabwe
Bonded Fibreglass v Peech 1987 (2) ZLR 338 (S) GUBBAY JA (as he then was) stated
at 339C:
“It is, I think, well established in motion proceedings that a court should
endeavour to resolve the dispute raised in affidavits without the hearing of
evidence. It must take a robust and common sense approach and not an over
fastidious one; always provided that it is convinced that there is no real possibility
of any resolution doing an injustice to the other party concerned. Consequently,
there is a heavy onus upon an applicant seeking relief in motion proceedings,
without the calling of evidence, where there is a bona fide and not a merely an
illusory dispute of fact.”
However, before taking a robust view, a court must have concluded or found that
in fact there are real or genuine dispute of fact that exist. See Da Mata v Otto 1972 (3)
SA 858 and Checkers Motors (Pvt) Ltd v Karoi Farmtech (Pvt) Ltd 1986 (2) ZLR 246
(S). Although the respondent contends that the applicant was, before embarking on these
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proceedings, aware that there was a dispute on an alleged renewal of the lease agreement,
I am unable on the papers before me to find that that is so. The respondent received two
letters written almost five months apart, in which the intention of the applicant to
terminate the lease at the expiry of the same was made clear. The respondent did not
acknowledge either of them nor did it put the record straight with the applicant, if indeed
a verbal agreement had been concluded with Mr Mangena, and express its indignation
and make it known that far from the lease expiring at the end of May 2010, the position
was in fact that a new lease agreement had been concluded with Mangena. The
respondent did not do this. It claims however that it relied on the existence of such verbal
lease agreement and that as a result it did not move out of the premises.
The opposing affidavit is devoid of detail on the alleged renewal of the lease
agreement, but seems to have focused on the wrangles that the parties had on rent.
Despite receiving two notices, one in December 2009 and another in April 2010 clearly
spelling out the applicant’s desire not to renew the lease upon its termination, the
respondent did not choose to respond. Yet it responded to letters that were raising issues
to do with arrear rentals. Prior to the two notices referred to above, the respondent had
also received notices from the applicant seeking to terminate the lease agreement. The
respondent appears to have responded to some, but ignored others. The notices seem,
however, to bear out the contention by the respondent that during the currency of the
lease the applicant had sent various notices to the respondent, purportedly seeking the
termination, prematurely, of the lease. Certainly the relationship appears to have been far
from amicable, but, in my view, the respondent had to show on the papers that after the
expiry of the written lease agreement it was renewed verbally as suggested in the
opposing affidavit.
The respondent’s failure to respond to the initial letter dated 14 th December 2009
and the remainder in terms of which it was informed of the termination of the lease is
remarkable if viewed against the backdrop of the claim by the respondent that the lease
had been renewed verbal with the Managing Director Mr Mangena. One would have
expected an immediate response from the respondent categorically stating that the lease
had been renewed and a firm refusal to move out based on the alleged renewal. One
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would have, as well, expected the respondent to have responded to the notices by
advising the applicant that it had concluded a verbal lease with the Managing Director
and consequently was disregarding the notices, especially in view of the fact that the
managing director who had brokered the lease had left the employ of the applicant. This
is especially surprising given the respondent’s penchant to respond at every turn to a
perceived wrong in the past. It is therefore inconceivable that it would have ignored two
notices demanding it vacate the premises on the basis of an expired lease agreement.
Instead the respondent did not react, all it did was to pay rent on 1 June 2010.
As part of its papers the respondent annexed papers filed in the magistrates court
by both parties. The applicant had filed an application for the eviction of the respondent
which application it subsequently withdrew. The respondent had in turn, filed an
application for a mandament van spolie after the security guards employed by the
applicant had denied access to the respondent’s clients into the premises. In an affidavit
deposed to by Lyton Shumba the following statement is made in regard to an alleged
verbal lease agreement;
“On 1 of June 2010, the applicant paid rentals for the month of June 2010. A copy
of the said receipt is annexed hereto as Annexure B. In terms of a verbal lease
agreement between the parties, once they accept rent the lease would
automatically be renewed for a period of three years.”
This statement in my view is very different from the one in the opposing affidavit
from the same deponent to the effect that they had renewed the lease agreement with the
former managing director. From the statement quoted above, it is clear that the
respondent says that the payment of the rent would constitute renewal of the lease
agreement. This is a far cry from the averment that the lease had been renewed with
Mangena. It is trite that until rent or some mode of fixing the rent is agreed upon there is
not contract of letting or hiring premises.
The lack of detail on the alleged verbal lease points to a lack of existence of any
agreement between the parties, if the details had been agreed the respondent would have
been happy to provide them to the court. I find no evidence that a verbal lease agreement
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was concluded between the applicant and the respondent and in my view the respondent
in the absence of renewal had become a statutory tenant.
Both parties are correct in arguing that the applicant can only succeed if it proves
that good and sufficient grounds exist for the respondent to be evicted from the premises
it presently occupies. The applicant is the business of tobacco auction. This entails the
acceptance of tobacco from farmers which is then auctioned through the offices of the
applicant. The applicant contends that due to an increase in the production of tobacco it
finds itself in need of more space to accommodate the upsurge in deliveries to it
premises. It is incumbent upon the applicant to establish that indeed thee has been an
increase in its business operations such that there is need for the ejectment of not just the
applicant but its other tenants from the rented premises. In considering what a court
should have regard to when assessing what amounts to good and sufficient grounds under
the regulations BEADLE CJ in Trustees in Mashonaland of the Church of the Province of
Central Africa v Timms 1973 (1) RLR 307 (GD) at 312H-313A stated;
“The Regulations provide no yardstick as to what a court should regard as
sufficient ground for ordering the ejectment of a statutory tenant. The application
of this section was considered by the Appellate Division in the case of Tucker v
Buchan 1968 (4) SA 809 (RAD). The judgment in that case did not attempt to
itemise the grounds which a court would regard as sufficient. The approach of
MACDONALD JA, in that case clearly indicates that the court must make a value
judgment based on the merits of each particular case, and that this is the manner
in which I consider I must approach the this matter.”
There is no set criteria for determining what amounts to good and sufficient
grounds and each case must be decided on its facts. It is easier to assess good and
sufficient grounds in a situation where the landlord seeks eviction on the basis that it
requires to effect necessary renovations to the premises. In such situation the landlord
must show that there is indeed an intention to renovate. In casu, the applicant contends
that it requires the premises for its expansion program. The respondent on the hand has
suggested that the applicant wishes to terminate the relationship due to the acrimony
between the parties over rentals.
Indeed there is evidence on the papers that during the respondent’s occupation of
the premises the parties have at times been at loggerheads over the issue of rentals. It is
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fair to state, however, that their differences never escalated to the point where either party
sought to terminate the lease on the basis of their differences over what rental should be
payable. The evidence suggests that each time there would be an amicable settlement
over the rent dispute. The applicant has not, on the papers before sought the eviction of
the respondent formally through court process prior to the middle of 2010. I therefore
find it difficult to accept the contention advanced on behalf of the respondent that the
motive behind the intent to evict the respondent is due to the parties’ inability to agree on
rent over the duration of the lease.
It is correct, as stated by the respondent that the applicant had given the
respondent notice on several occasions that it should vacate the premises. The respondent
has attached to its opposing papers a number of letters either written by the applicant’s
officials or by its managing agents, CBRE, in which notice to vacate the premises prior to
the termination of the written lease was given. The running theme in all the letters is that
the applicant required the use of the premises for itself. The applicant, in all the letters
produced on the record indicated that the premises were required for its expansion
program. In the founding affidavit the applicant has sought to explain that prior to 2007
there was a decline in the volumes of tobacco being delivered by farmers and as a result
there was no need for the applicant to have use of more space than it was in occupation
of. It had in fact excess space. A trend developed where the tobacco deliveries increased
leading to a realisation and decision by the applicant that it needed to utilise the leased
space.
The applicant predicted that for the 2010 tobacco season there would be
congestion at its floors which would stretch the facilities and possibly lead to a health
hazard. The increased floor space, it contended would go a long way in reducing the
delays that tobacco farmers were experiencing in having their produce sold. Apart from
making these averments the applicant did not produce any documentation in proof of the
same. It was only in answer to the contention by the respondent to the effect that the
applicant did not have good and sufficient grounds for its eviction from the leased
premises that the applicant then sought to produce documents to prove the alleged
increase in deliveries. The applicant has as a consequence attached extracts from
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newspapers, some of which are dated, others are not. An extract from the Business Digest
of September 3 to 9 2010 contains an article which confirmed that as at that date a total of
113.1 million kgs of flue cured tobacco had been sold with a value of US344.2 million at
the tobacco auction floors that were operational nation wide. The article indicated that
projected total sales were 120 million kgs for the season. An earlier article had projected
that the sales from tobacco would rake in US $274 million. The article confirmed that
sales of tobacco as at the date of the article, July 10 to 22 2010 had doubled from the
same period the previous year.
The respondent has objected to the attachment by the applicant of the newspaper
clippings as well the amplification by the applicant of the projected increase in delivery
of tobacco to its auction floors. The respondent has argued that the applicant is seeking to
make its case in the answering affidavit as opposed to the founding affidavit. It is
suggested in argument, that the applicant did not set out a cause of action in the founding
affidavit and that it was only in the answering affidavit that it sought to make out its case.
I am not convinced that the respondent is in fact correct. The respondent has, in
its opposing affidavit, disputed that the applicant needs the increased floor space for an
expansion program. The respondent did in fact challenge the applicant to provide the
court with information as to what percentage of expected tobacco grown was to be
delivered to it. The respondent has also challenged the applicant to show that the
projected increase in tobacco deliveries would see an increase in deliveries to the
applicant itself. I believe that the respondent is being impracticable in seeking an
assurance from the applicant that there would be an increase in deliveries to its floors.
Unless the licence to auction tobacco has been withdrawn one would expect that any
registered or licence tobacco auction can only benefit from an increase in tobacco
cropping. There is no suggestion on the papers that any farmer intending to grow and
market the crop must first register with an auction floor. It is enough in my view that the
applicant has shown that there will be an increase in the production of tobacco.
In my view the assessment of whether or not there is good and sufficient grounds
on the papers presented by the applicant must of necessity look at the bona fides of the
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applicant. In Union Wine & Spirit Corp Ltd v Ferreira 1948 (2) SA 647 (0) at 651-2 DE
BEER J stated:
“It is difficult to see what more can ordinarily be required of a claimant than that
he should assert his good faith, and bring some small measure of evidence to
demonstrate the genuineness of his assertion. He can normally scarcely do more,
and it rests with the lessee resisting ejectment to bring forward circumstances
casting doubt upon the genuineness of his claim.”
I can safely state from a reading of the opposing affidavit, that apart from the
alleged rental dispute, the respondent has not brought forth any circumstances that would
cast doubt on the genuineness of the claim by the applicant that it requires the premises
for its own use. The applicant in its answering affidavit went to great lengths to show
how the tobacco deliveries were expected to rise. It has attached clippings from all sorts
of newspapers whose running thread on the issue of tobacco is that there has been an
increase in production and hence the need for more space at auction floors to
accommodate buyers. I cannot see what more the applicant could have done or said to
establish good and sufficient grounds for the ejectment of the respondent from the leased
premises.
These courts have held that in deciding whether or not a lessor has good and
sufficient cause to seek eviction, it is only the position of the lessor that has to be
considered, that of the lessee being irrelevant for the enquiry. As discussed above the
legislation does not define what good and sufficient cause, but more importantly it only
mentions the lessor not the lessee, reinforcing the views by the courts that the position of
the lessee is not material. See Mobil Oil Zimbabwe (Pvt) Ltd v Chisipite Service Station
(Pvt) Ltd 1991 ZLR 82. It then becomes necessary for the lessee to ‘bring forward’
circumstances casting doubt upon the genuineness of the lessor’s claim. The respondent
points to the abortive proceedings in the magistrates court by Portion Muvirimi, the
several letters of notice prior to the expiry of the lease period, the letter written in June
2010 seeking legal advice on the way to evict its tenants, and the applicant’s futile
attempts at interfering with the respondent’s occupation immediately following the
abortive ejectment proceedings as pointers to the applicant’s good faith in seeking its
ejectment. Looked at in isolation these factors could indeed point to a lack of good faith
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on the part of the applicant. However, even taking into account the fractious relationship
between the parties over the years, the main theme running through the notices issued by
the applicant to the respondent is that it required the premises for its own use. The
occasions when there were threats of eviction on the basis of the respondent being in
arrears with rent are few. I am convinced that the reason for the ejectment is solely for the
wish by the applicant to use the floor space to accommodate tobacco growers.
Next it falls for me to consider the length of notice that the respondent must be
accorded before it is evicted. The respondent has known from as far back as December
2009 that the applicant required the premises for its use. In April 2010 it was again
served with notice that the applicant wished it to vacate by 31 May 2010. The respondent
chose not to respond to either notice. Instead, it paid rental in the hope that the applicant
would allow the relationship to carry on. The respondent has suggested that a reasonable
period of notice for it to vacate would be six months. Apart from the period mentioned in
the draft order the applicant has not addressed the question of what would be a reasonable
period of notice to be accorded to the respondent in the circumstances. It merely argued
that there was no basis for granting the applicant a period of six months notice
The respondent is in business and would appear to have been in occupation of the
premises for quite some time. It requires time to locate space adequate for its purposes
and I would assume that would be no mean feat. The applicant has not suggested that the
tobacco season will start earlier than January or February in any given year. In deciding
what notice to give to a lessee a court must not just consider the needs of the lessor but
must also assess the hardship likely to be suffered by the lessee if it is evicted from the
premises. It is a value judgment based on all the equities of the case. I am entitled to take
into consideration the difficulties that the respondent is likely to encounter in securing
accommodation suitable for its purposes. It seems to me that a period of six months to
allow the respondent to find appropriate accommodation, given the length of time it has
been in occupation would not unreasonable or an inordinate period. The applicant has
itself, not advanced any argument to the court alleging any prejudice it would suffer were
the respondent allowed a period of six months to vacate the premises. In addition the
lease agreement which governed the parties’ relationship itself provided for a notice
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period of six months. If the respondent were ejected immediately as required by the
applicant hardship will be caused to it. I will therefore be guided by the notice period
provided in the lease and require the respondent to vacate within that period.
In the premises I find that the applicant has established that it has good and
sufficient grounds to have the applicant evicted from its premises and an order to that
effect will issue. Accordingly an order will issue in the following terms:
IT IS ORDERED THAT:
1. The respondent and all those claiming occupation of through it shall vacate the
premises situate at Tobacco Sales Floor Complex, Gleneagles Road within six
months from the date of service of this order.
2. The respondent shall pay the applicant’s costs at a scale as between legal
practitioner and client.
Wintertons, applicant’s legal practitioners
Hove & Associates, respondent’s legal practitioners