Woodwork Investments (Pvt) LTD Versus UKM Consultants (Pvt) LTD

### Preamble
HH 90-07
HC 5331/06
WOODWORK INVESTMENTS (PVT) LTD
versus
UKM CONSULTANTS (PVT) LTD
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WOODWORK INVESTMENTS (PVT) LTD
versus
UKM CONSULTANTS (PVT) LTD

HIGH COURT OF ZIMBABWE
BHUNU J
Harare11th July 2007 and 25th July 2007, 2nd August, 2007 and 26th August 2007 and 19th December 2007

Mr Chidziva, for the Plaintiff.
Mr Mehta, for the Defendant.

Civil Trial

BHUNU J: At the close of this trial Counsel indicated that they preferred filing written closing submissions. I then directed counsel for the defendant to file his written closing submissions by 17 September 2007. As I write this judgment it is now the 3rd of October 2007 with no submissions having been filed by counsel in spite of a written reminder from his opponent dated 1 October 2007. There has also been no explanation for the default. In the absence of an explanation for the default, I can only assume that counsel for the Defendant has no meaningful submissions to make. Having made that observation I proceed to determine the matter without the benefit of counsel for the Defendant’s closing remarks.

The facts in this matter are to a large extent common cause such that the credibility of witnesses is by and large not in issue. The undisputable established facts are that the plaintiff is the owner of certain premises known as ZTA house situate at number 95 Nelson Mandela Avenue. The Plaintiff bought the property from Abington Investments (Pvt) Ltd and obtained transfer on the 30th June 2006 under deed of transfer number 4306 /2006. The property was however encumbered by a lease agreement between the previous owner and Alexander Forbes Risk Services Zimbabwe (Pvt) Ltd who in turn sublet 182 m² of the floor area to the Defendant with the previous owner’s consent. Thus the Plaintiff inherited Alexander Forbes as its tenant on the existing terms and conditions incorporating the sublease. In other words the Defendant continued to be a lawful occupant or sub lessee of the premises at the time of transfer. The sub lease expired on 31 December, 2003. Thereafter the Defendant became Alexander Forbes’ statutory tenant.
 Alexander Forbes Risk Services Zimbabwe (Pvt) Ltd however terminated its lease with the Plaintiff and moved out of the leased premises at the end of July 2007 leaving the Defendant in occupation of the property in dispute. Since then the Defendant has not paid rent or service charges for the property.

The Plaintiff then sought to evict the Defendant from the premises seeking holding over damages in the process. The basis of Plaintiff’s claim is that the Defendant’s right to occupy the premises terminated with the termination of Alexander Forbes’ lease with the plaintiff. In my view that argument is unassailable because the Defendant’s right to occupy the premises has no independent existence outside the original lease. As the defendant’s right to occupy the premises was riddling on the back of the main lease it stands to reason that, that right was extinguished with the demise of the main lease. Thus Mr. Chidziva’s reliance on a chain of authorities to fortify this observation is beyond reproach and defies any contradiction. This may explain why counsel for the Defendant was unable to file any closing submissions to the contrary.

In the case of *Ntai and Others v Vereeingng Town Council* 1953 (4) SA 579 (AD), the court held that, A sub lessee’s right in the property sublet to him is dependant on the sublessor’s title. That proposition of law found clarification in the local case of *Omarshah v Karasa* HH -73-96 in which the court held that, the rights of a subtenant are coterminous with those of the tenant

The Plaintiff’s right to eject the Defendant from the premises is eloquently articulated by W.E Cooper in his book The Sought African Law of Landlord and Tenant and Company 1993 at page 218, where the learned author says that:

‘The sublessee has no claim against the original lessor in respect of the property let to him and he can be ejected by the original lessor upon the termination of the original lease.”

There is therefore, no substance in the defendant’s argument to the effect that it became a statutory tenant upon the termination of the main lease. This is for the simple but good reason that the law does not create a statutory tenancy from a vacuum. I take the robust view that for there to be a valid statutory tenancy it must be preceded by a previously valid lease agreement between the parties. In this case there never was any lease agreement between the parties. That being the case the Defendant can not foist its contractual arrangement with
 Alexander Forbes on the Plaintiff for the simple reason that there is no privity of contract between the parties. Agreement is of the essence of contract. In creating the phenomenon of statutory tenancy the law maker did not mean to create a contractual arrangement between total strangers. Because the Defendant was claiming its right of occupation through the sublessor, that right was extinguished with the extinction of the sublessor’s right to occupy the premises.

For that reason I hold that the Defendant’s continued occupation of the premises after the termination of the main lease was unlawful and illegal. The defendant therefore became an illegal occupier of the premises with effect from 1 August, 2006.

Turning to the question of holding over damages, it is trite that the Plaintiff being the lawful owner of the premises with effect from 30 June, 2006 it became entitled to a reasonable return on its investment with effect from that date. It is common cause that the Defendant has not paid any rentals or service charges to the Plaintiff despite its continued occupation of the premises from the date the Plaintiff became the lawful owner of the property. I do not doubt the sincerity of the Defendant’s managing director when he says that the Defendant has always been ready and willing to pay rentals but it met with difficulties as the Plaintiff was unwilling to accept the rentals it tendered in terms of its expired lease agreement with Alexander Forbes Services Zimbabwe (Pvt) Ltd. In desperation the defendant had to pay the amounts into various trust accounts on the advice of its lawyers.

It does not seem to matter to me whether or not the Defendant tendered payment in any amount. The bottom line is that the plaintiff was not obliged to accept rentals from an illegal occupier of its premises Accepting rentals in the circumstances of this case could have been misconstrued as ratifying and legitimizing the Defendant’s unlawful occupation of the premises. Thus the plaintiff’s claim for eviction against the defendant is unassailable.

I now turn to consider the question of the quantum of damages. It is common cause that the plaintiff bought the property in question and took transfer of the same on 30 June 2006. Initially the plaintiff was claiming rentals as from the date it entered into the contact of sale with the previous owner. The plaintiff has however now properly conceded that it is only entitled to rentals from the defendant as from the date it took transfer being 30 June 2006.

The plaintiff denied having received any rentals from the defendant. That being the case it was incumbent upon the defendant to show on a balance of probabilities that it paid rentals to the plaintiff. The defendant was however unable to show that it paid any rentals to the plaintiff at any time after it became the lawful owner of the premises in question.


The defendant could only prove payment of $43567-00. The amount was accepted on a without prejudice basis. The defendant claims to have paid the rest of the money into some trust account without the knowledge or approval of the plaintiff. There was absolutely no evidence to the effect that that money was eventually paid to the plaintiff. In fact according to the defendant’s sole witness the receiving bank went into liquidation before payment had been effected to the plaintiff.

I therefore find as a fact proved that the plaintiff was obliged to pay rentals to the plaintiff as from 30 June 2006 but has not paid any rentals as from that date Save for the $43567-00 mentioned above.

The property was being managed by Gabriel Real Estate Agents. Mr. Arnold the commercial letting manager gave evidence regarding the quantum of rentals as from the 30th June 2006 to the 30th June 2006. This is what he had to say:

“The plaintiff purchased the property on 30th June 2006. From that date the defendant ought to have paid rentals to the plaintiff.

We used 10058 x 588 square meters which is the space UKM occupied. ..

The prejudice to the plaintiff as a result of the occupation of the property by the defendant is $5 813 938 .00. This is the amount that the plaintiff is claiming”.

This witness gave incontrovertible evidence to the effect that this amount was arrived at after taking into account rentals for comparable properties in the area. I therefore find as a matter of fact that the plaintiff has proved the quantum of damages in that amount.

In conclusion I place it on record that counsel for the defendant belatedly filed his written submissions on 17 November 2007 exactly two months from the date they were due. A perusal of the submission has however failed to persuade me to alter my perception of the facts and determination.

It is accordingly ordered:

1. That the defendant and all those claiming occupation through it be and are hereby ejected from the premises known as ZTA House situate at 95 Nelson Mandela Avenue, Harare.
 2. That the defendant be and is hereby ordered to pay damages in the amount of $5 813 938. 00 being rentals due from 30 June 2006 to 30 June 2007 together with interest at the prescribed rate reckoned from the date of default to the date of payment in full

3. That the defendant is ordered to pay costs of suit.

Kantor & Immerman, plaintiff’s legal practitioners.
Atherstone & Cook, defendant’s legal practitioners.
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