Yashpal Tandon and Mary Tandon v Nhamo J Chitimbe

### Preamble
1
HH 253-12
HC 5014/09
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YASHPAL TANDON

and

MARY TANDON

versus

NHAMO J CHITIMBE

HIGH COURT OF ZIMBABWE

GOWORA J

HARARE, 13 and 14 September 2010, 24 January,

7, 8 and 17 November 2011 and 13 June 2012

Civil Case

D S Mehta, for the plaintiffs

G Nyandoro, for the defendant.

GOWORA J: The plaintiffs are the registered owners of an immovable property known as 7 Dougal Road, The Grange, Harare. In or about July 2004 the plaintiffs entered into a written agreement with the defendant, in terms of the property mentioned above was leased to the defendant for an initial period of six months, which was subsequently renewed on various occasions, the last such renewal have been agreed to in January 2009. At all material times, the plaintiffs were represented by their nominated agents, Gabriel Real Estate in setting the rentals and other conditions governing the lease.

On 12 October 2009 the plaintiffs cancelled the lease alleging breach by the defendant on account of failure to pay monthly rentals and demanded that the defendant vacates the premises. The defendant denied that he was in breach as alleged and refused to vacate the premises. The plaintiffs have as a result issued summons for relief as follows; confirmation of the cancellation of the lease, eviction of the defendant and all those claiming through him, payment of arrear rentals in the sum of US$3 950.00 and holding over damages in the sum of US$500 for each month that the defendant remains in occupation with effect from 1 November 2009 to date of vacation or eviction of the premises. The plaintiffs pray for costs against the defendant on a punitive scale.

The defendant entered an appearance to defend and filed a plea and a counter-claim. In the plea, the defendant admits the existence of the lease agreement but avers that when it was concluded the intention on the part of the plaintiffs was to dispose of the property to the defendant. It is averred further that in 2005 in England the parties had entered into an agreement in terms of which the plaintiffs sold the immovable property to the defendant for a sum of US $50 000 and that he had paid US$10 000 towards the purchase price. The agreement of sale, according to the plea would be concluded in Zimbabwe in 2005 when all parties would be in the country. It was pleaded that, in the event, any sums paid as rental were specifically meant for the upkeep and maintenance of the property pending the finalisation of the agreement of sale. The defendant pleaded further that in the event the sale agreement was concluded any amounts paid as rentals would be subtracted from the purchase price. The defendant, based on his plea, also filed a counter claim for the payment by the plaintiffs of the sum of US $10 000 allegedly paid to the plaintiffs as deposit towards the purchase of the property.

The following facts are common cause. The plaintiffs and the defendant concluded an agreement of lease of the immovable property for an initial period of six months. The lease agreement was signed by Gabriel Real Estate on behalf of the plaintiffs and the estate agents were plaintiffs’ representatives during the duration. The lease was renewed periodically until 2009 when the parties started litigating due to disputes arising from the lease.

Although the parties made an issue of the alleged agreement of sale, it is clear from the pleadings that there never was an agreement. The allegation from the defendant is that there was a discussion on the possibility of a sale of the house to him and that the agreement would be concluded in Zimbabwe. The issue from that correctly framed is if the defendant then paid US $10 000 towards the deposit of a sale agreement to be concluded in the future and whether or not the defendant was entitled to a refund. The last issue is whether the defendant had breached the lease agreement justifying his eviction there from and the holding over damages that he was supposed to pay from the alleged breach.

In the declaration filed on behalf of the plaintiffs, an averment is made in para 3 thereof to the following effect:

3.	On or about 14 July 2004, the first and second plaintiffs and defendant entered into a written lease agreement in terms of which the defendant agreed to lease from the plaintiffs, plaintiffs’ property, no 7 Dougall Rd, The Grange, Harare (hereinafter called the “property”).

To this the defendant pleaded:

3.       Ad Paragraph 3:

Admitted save to state that when the defendant and the first and second plaintiffs entered into the written lease agreement, parties had already commenced negotiations wherein the first and second plaintiffs sought to sell No 7 Dougall Rd, The Grange to the defendant. There is therefore no dispute on the papers filed by the parties that the only legal relationship that existed between them at the time these proceedings were instituted is that of landlord and tenant.

The most important duty imposed upon a tenant under an agreement of lease is payment of rent. If there has been no agreement as to when rent is payable, it becomes payable on the expiration of the lease. If a property is leased on a monthly tenancy and nothing has been said about the date for payment of rent, then it follows that rent can only be claimed at the end of the month of such tenancy. If however, as in this case, there is an express agreement that rent is payable monthly in advance, then rent is payable on the first day of each month. Payment of rent must be made timeously at the place and time upon which it is stipulated for payment in the lease. If a lessee fails to pay rent on due date  the landlord is entitled to sue for rent on the second day of the month for the whole month’s rental and any damages as he might have suffered for the period that the lessee is in default. See Ramnath v Bunsee 1961 (1) SA 394 (N) 400C.

The gravamen of the complaint against the defendant is as follows. It is alleged that the defendant agreed to pay a monthly rental of US $500 for the premises with effect from 1 January 2009. In the event it is alleged that the defendant breached the agreement in the following respects. He is alleged to have paid rent in the sum of US $350 per month for January, February and March 2009 instead of the stipulated rental. It is further alleged that he had paid no rentals for the months of April, May, June, July, August, September and October 2009 as a consequence of which he accumulated arrears in the sum of US $3 500. From these facts the plaintiffs allege that the defendant has breached the agreement and they have cancelled the lease.

The defendant whilst admitting that rentals were due under the agreement has not furnished proof of payment of the amounts being referred to. On 24 March 2009 the plaintiffs obtained an order for the eviction of the defendant in the Magistrates Court. The defendant consequent thereto approached the same court for a stay of execution of the eviction. An affidavit deposed to by him was filed in support of the application. In the affidavit the defendant stated that he had gone to South Africa in December 2008 where he was employed as an Oceanographer. He had agreed with a Mr Muzandi employed by the plaintiffs’ estate agent that he would pay 90 Billion Zimbabwe dollars for the period December 2008 and January 2009. He does not say whether or not payment was effected in accordance with the alleged agreement. He stated further that he had returned to the country in February 2009 and had offered to pay rentals in pound sterling. The affidavit is silent on which period the offer was being made for. The offer was turned down and he requested a period of two weeks in which to try and raise the money transferred from his account in the United Kingdom. It would appear that judgment was stayed as a result. At the same time that he applied for a stay of the judgment he filed an application for rescission. It seems that the default judgment was thereafter set aside.

It would appear that there was no progress on the lease because on 13 August the Magistrates Court again granted an order for his eviction from the leased premises. He again filed an application to stay execution of the default judgment. In the affidavit in support of the application he averred that he and the plaintiffs had concluded an instalment sale agreement and in 2007 he had paid an amount of US $10 000 out of a total purchase price of US $50 000. He stated that when he left the United Kingdom for Zimbabwe in 2008 he had left the documents pertaining to the agreement with his wife and she would bring the documents on the sale and the payment by 20 August 2009. He stated that the documents would establish that he had a proper defence against the judgment snatched by the plaintiffs’ legal practitioners. Again execution of the judgment was stayed.

The defence raised in the documents referred to above speaks to an agreement of sale having been concluded between the parties. In his plea in these proceedings the defendant did not aver that such an agreement had been concluded. Indeed it was the averment that the parties would conclude an agreement of sale once all parties were in Zimbabwe. In his evidence he did not dispute that he was leasing the plaintiffs’ property. The suggestion however he sought to advance was that the parties had never agreed on rentals of US $500.00. He accepted that he had paid rentals in January, February and March 2009 at the rate of US $350 per month. He however disputed that there had been a rent review. Although he had filed a counter-claim together with his plea, the defendant did not move for such in his evidence in chief. He did not impress as a witness and would go into long rambling statements in answer to simple questions which left most of his evidence difficult to understand. From what he said, it is obvious that he accepted that no agreement for the sale of the property was concluded.

Since the lease is admitted the only question is whether the defendant breached the lease. On his own evidence, he has not paid for the occupation of the premises since May 2009. His right to occupy the premises is by virtue of a lease agreement. A tenant who does not pay rent is in breach of his obligations under such lease and the plaintiffs are entitled to cancel the lease and seek his ejectment from the property.

Following from the above it becomes necessary to determine the extent of the defendant’s default in rental payments. The defendant avers that the amount due was US $350 monthly with effect from January 2009. The plaintiff on the other hand contends that the parties had agreed on a rent review in terms of which the defendant would pay the sum of US $500 per month. It is common cause that although the plaintiffs agreed with the defendant that the latter would lease their house in The Grange, the day to day management and collection of rentals was done by Gabriel Real Estate. Mrs Munyukwi, a property consultant with Gabriel Real Estate gave evidence on behalf of the plaintiffs in relation to the defendant’s performance of his obligations as a tenant on the property.

She confirmed that her firm had signed on the defendant on the recommendation of the plaintiffs. She confirmed that the lease agreement provided for the payment of rent on a monthly basis as well as the payment by the tenant of utility bills consumed by the tenant during the duration of the lease. She produced a report compiled just before the defendant assumed occupation of the premises. The report shows that the property was in a good condition overall. Asked about the payment of rentals by the plaintiff’s counsel her answer was that the norm was that defendant would make irregular payments over the years. In 2009 however, the defendant started having real difficulty in settling his rent resulting in two applications being lodged in the Magistrates Court for his eviction.  Despite the defendant’s contention that rental for the period January 2009 onwards was never settled, it was her position that rental was agreed at US $500 per month. For the months January to March 2009 the defendant had paid US $350 per month, which left him with an outstanding balance of US $450. Although the plaintiffs obtained judgments for his eviction the defendant was able to have them set aside as they had been obtained in default.

The defendant’s version is that the parties had never agreed on a rent review. It is a fact that with effect from February 2009 the country adopted a multi currency regime and consequent thereto, in view of the rampant inflation attaching to its use the local currency fell into disuse. It follows therefore that in order for the parties’ legal relationship to continue in existence, an agreement on the use of one or other of the currencies adopted had to be reached. The plaintiffs contend that the parties agreed upon use of the US dollar as the medium for transacting. This much is confirmed by the defendant in two affidavits deposed to by him on 25 March 2009 in the applications for rescission of judgment and stay of execution respectively where he states;

“I came back on 24 February 2009 and offered to pay in sterling pounds.

The first respondent refused the pounds demanding United States Dollars. This was stated by Mrs Munyukuri (a representative of the first respondent). She insisted that she could only accept US Dollars.

I asked the first respondent to give me two weeks time to try and raise the US$1 000.00 the first respondent demanded since I had to have my pounds transferred from my United Kingdom account to Zimbabwe since I am using a manual system of money transfer.”

There is an equivocal acceptance by the defendant that he had to pay in United States Dollars. The issue before the Magistrates Court was specifically related to the defendant’s inability to pay some money to the plaintiffs which money the defendant did not dispute owing. The only issue between the parties has been rentals demanded in terms of the lease agreement and in view of the affidavits filed by the defendant he did not dispute that the amount claimed therein was owed. Equally, he did not dispute that the amount due was denominated in US dollars. According to Mrs Munyukwi the defendant accepted to pay US $500 per month for twelve months with effect from January 2009, and this evidence was seriously disputed even under cross-examination of the witness. The witness said that a written lease had been prepared subsequent to the agreement to have the rent reviewed but the defendant became evasive and refused to sign.  Since the lease had provided for rentals in local currency, the obligation by the defendant to pay rentals in US dollars could only have come about after an agreement between the parties wherein the rent was reviewed.  This finding is bolstered by the fact that the defendant paid rent in the sum of US $350 per month for the months of January, February and March 2009. His defence that there never was a rent review would have assisted him if he had refused to pay rent in US dollars. He did pay in that currency and is on record as having admitted an obligation to pay. According to the first plaintiff the defendant had paid rentals for April and May during the period that the dispute was in the Magistrates Court. The defendant in his evidence never alluded to this, nor was the plaintiff cross-examined on that evidence. I found the first plaintiff to e credible witness. The same cannot be said for the defendant. I therefore find that the plaintiffs’ evidence that there was a rent review from the month of January 2009 for defendant to pay US$500 as rent is borne out by the papers filed by the defendant himself. The plaintiffs have accordingly established that the amount being claimed as arrear rentals and holding over damages is therefore due and payable by the defendant.

It only remains to determine what amount was paid by the defendant in England. There is no dispute that the defendant paid some money to the plaintiffs. The defendant states that the amount in dispute was paid as a deposit by him towards purchase of the house that he was leasing. He has accepted both in his pleadings and in evidence at the trial that the parties never concluded an agreement. The purpose for the payment is however relevant in determining how much was paid.

The first plaintiff in his evidence states that the sum paid was US $1 000. The plaintiff further states that the money was left either with his daughter in law or his son. The defendant on the other hand states that what was paid by him was Five Thousand Pounds which the parties agreed would be valued at US $10 000. He says the money was left with the son and the daughter in law and that the plaintiffs then arrived before he left. The defendant told the court that he holds three degrees. Clearly he is a man of intellect. He has on his own evidence negotiated to purchase an immovable property which he is in the process of renting. The lease agreement is in writing, and is renewed every six months in writing. The parties that he is dealing with in relation to his occupation of their house insist on formality in their dealings with him. It is therefore inconceivable that they would enter into an agreement of sale with him in the absence of a formal agreement. This much was made clear by the first plaintiff, and it was also borne out by the fact that even though they had identified the defendant as a potential tenant, they insisted that he deal with their estate agent and conclude a formal lease. It is also difficult to accept that the defendant would part with such a large sum without a document confirming that he had given the plaintiffs the amount in question and the purpose for the payment. He could not even produce proof that he had such an amount in an account and had withdrawn it from a bank. The onus to prove that he paid five thousand pounds to the plaintiffs clearly lay on the defendant. He failed to discharge it. We are therefore left with the sum of BP1 000 which the plaintiffs admit receiving from him. The plaintiffs have tendered payment of this sum to the defendant.

Having found as a fact that the defendant breached his lease agreement with the plaintiffs it therefore follows that confirmation of the cancellation by the plaintiff was justified under the circumstances. The defendant has not paid rentals from July 2009 to October 2009 and paid less than US $500 for January, February and March 2009 by US $150. The arrears rentals due to the plaintiffs amount to US$2 950. The plaintiffs have in addition claimed the sum of US$500 as holding damages for every month or part thereof that the defendant remains in occupation subsequent to the cancellation of the lease. A witness called by the plaintiff had recommended that the damages for 2010 be assessed at US $600 per month and that the following year the amount be increased by 15 to 20 percent in line with market rates prevailing. The plaintiffs did not amend their claim to reflect the increases recommended. They will therefore be entitled to payment of damages on the rates claimed in the summons.

The defendant has not proved that he paid the sum of Five Thousand Pounds and his  counter-claim must fail.

In the premises the plaintiffs’ claim is upheld as appears in the summons and I will issue an order in the following terms:

Cancellation of the lease agreement between the plaintiffs and the defendant in respect of 7 Dougal Rd The Grange be and is hereby confirmed.

Consequent thereto the defendant and all his assignees, subtenants and all persons claiming right of occupation of the said premises shall vacate the premises in question within seven (7) days of the date of service of this order failing which the Sheriff for Zimbabwe or his lawful Deputy be and is hereby authorized to evict the defendant and all those claiming through him from the premises aforesaid.

The defendant shall pay arrear rentals in the sum of US $2 950 to the plaintiffs together with interest at the prescribed rate with effect from the date of summons to the date of payment in full.

The defendant shall pay to the plaintiffs holding over damages in the sum of US $500 for every month or part thereof that the defendant is in occupation of 7 Dougal Rd The Grange with effect from 1 November 2009 to date of vacation of the premises, provided that the One Thousand Pounds paid to the plaintiffs shall be offset against any sums due and owing under this paragraph.

The defendant shall pay the costs of suit herein.

The defendant’s counter-claim is in turn dismissed with costs.

Gill, Godlonton & Gerrans, legal practitioners for the plaintiffs

Hamunakwadi, Nyandoro & Nyambuya, legal practitioners for the defendant