Commercial and Industrial Holdings (Pvt) Ltd v U.K Electrical (Private) Limited

### Preamble
1
HB 61/21
HC 1867/20
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COMMERCIAL AND INDUSTRIAL HOLDINGS

(PVT) LTD

Versus

U.K ELECTRICAL (PRIVATE) LIMITED

IN THE HIGH COURT OF ZIMBABWE

MAKONESE J

BULAWAYO 24 MARCH AND 1 APRIL 2021

Opposed Application

N Sibanda, for the applicant

A Dracos, for the respondent

MAKONESE J:	This is an application for summary judgment.  It is premised on a summons for eviction.  The application is opposed.

Factual Background

On 9 June 2017 the applicant and respondent entered into a commercial lease agreement in respect of stand 80 Simon Mazorodze Road, Harare (the property).  In terms of clause 1.4 of the agreement the parties agreed that there would be a rent review annually.  In September 2019 a dispute arose between the parties with respondent demanding to negotiate and to have access to the agreements in relation to the review between the primary landlord and the applicant.  The applicant in this matter leases the property from a third party.  The applicant therefore, in turn, sub-lets the property to the respondent.  On 27th January 2020 respondent indicated its intention to refer the dispute for arbitration to the Chartered Surveyors, Zimbabwe group.  The applicant took the position that the nature of the dispute was legal in nature and therefore there was no need to go for arbitration.  In July 2020 the applicant wrote to the respondent demanding payment of backdated rental increments.  On 21st July 2020 respondent’s legal practitioners responded to this demand indicating that such increments had no foundation at law.  It was pointed out to the applicant that the demand was premature in that the parties were due for arbitration regarding the fair and reasonable rentals to be paid.  In September 2020 applicant instituted legal proceedings for the eviction of the respondent from the leased premises.  Respondent defended this claim.  Respondent indicated to the applicant that the summons and declaration was defective in that it was vague and embarrassing and did not disclose a cause of eviction.

WHETHER THE SUMMONS AND DECLARATION DISCLOSES A CAUSE OF ACTION

The respondent raises a point in limine, in this matter. The preliminary objection is that the summons and declaration does not disclose a cause of action and is vague and embarrassing.  It is important to highlight from the onset that the proper procedure to have been adopted by the respondent in this regard would have been to except to the summons.  In view of the fact that such point in limine has been raised in summary judgment proceedings, I  propose to examine the validity of the point in limine, and proceed to determine the merits of the application before me.  The order sought by the applicant is for an eviction of the respondent from the leased property.  I must make a finding in that regard.

An examination of the declaration confirms that there is no allegation that respondent was given notice to purge its contractual breach as required in clause 15.1.2 of the lease agreement.  In clause 5 of the lease agreement applicant contends that a rental review was to be effected in line with a percentage increase as may be applied by the primary landlord to the lessor.  There is no mention of the precise percentage increase,  nor the amount of the rent due.  In clause 6 of the declaration the applicant then alleges without indicating how and on what basis the lease agreement was terminated.  No notice of such termination was given to the respondent.  In clause 7 of the lease agreement, applicant then avers that in breach of the agreement the defendant had either failed or neglected to pay the rental as reviewed.  There is no mention of the amount of rentals due or outstanding.  In the prayer, in the summons applicant makes a claim for the payment of ZW$2 491 898 being outstanding rentals.  It is bad pleading and incompetent for a plaintiff to claim for relief that is not sought in the declaration.  The declaration must set out the cause of action and the precise nature of the relief sought.  A further defect in the summons is that the amount of rent arrears is not even pleaded and there can be no valid cause of action without an averrement of the actual amount that has given rise to the alleged breach.  It is observed that in paragraph 9 of the declaration, the applicant claims hold over damages in the sum of ZW$286 593 per month until the date of vacation from the premises by the defendant.  There is no mention of the date when such holdover damages begin to accrue.  In the prayer to the summons, applicant attempts to remedy this deficiency in the declaration by demanding hold over damages equivalent to the monthly rentals of ZW$286 593 with effect from 1st October 2020.  What becomes clear is that there is no indication in the declaration when the alleged breach occurred and specifically from what period the rent arrears began to accrue.  The summons and declaration is vague and embarrassing in that the figures relating to the reviewed rentals are not disclosed and are not known to the respondent as they are not set out in the summons and declaration.

WHETHER THE RESPONDENT HAS A BONA FIDE DEFENCE TO THE CLAIMS

The respondent in a summary judgment applicant is required to set out a bona fide defence to the applicant’s claims.  The respondent must not provide a fanciful defence but must raise triable issues.  The basic principles in summary judgment applications  is laid down in several decided cases.  In Jena v Nechipote 1986 (1) ZLR 29 (S) at page 30 the court expressed the test as follows:

“All that a defendant has to establish in order to succeed in having an application for summary judgment dismissed is that there is a “mere possibility of success”; “he has a plausible case”; there is a triable issue”; or “there is a reasonable possibility that an injustice may be done if summary judgment is granted.  These tests have been laid down in many cases, typical of which in this country are Davis v Terry 1957 (4) SA 98 (SR); Rex v E Rhodian (SR) Investments Trust (Pvt) Ltd 1957 (4) SA 631, Kassim Brothers (Pvt) Ltd v Kassim and Another 1964 (1) SA 651; Shingadia v Shingadia 1966 (3) SA 24 (SR); Webb v Shell Zimbabwe (Pvt) Ltd 1982 (1) ZLR 102.”

The object of the summary judgment procedure was clearly spelt out in Vera v Mitsui and Company Ltd SC 65/04 at page 4 to 5 of the cyclostyled judgment in the following terms:

“… to enable a plaintiff with a clear case to obtain swift enforcement of his claim against a defendant who has no real defence to that claim.  The courts have in innumerable decisions stressed the fact that the remedy provided by this rule is an extraordinary one which is very “stringent” in that it closes the door to the defendant, and will be accorded only to a plaintiff who has in effect, an unanswerable case.”

A careful perusal of the plaintiff’s declaration shows that there is no allegation, let alone clarity as regards the amount of money respondent failed to pay as rent as at the date of the alleged review.  In the absence of such, it is clear that respondent will not be aware of the nature of the applicant’s claim.  In that respect respondent has a bona fide defence in that it is entitled to know how the review was  effected, and from when and how the amount in the claim is arrived at.  The plaintiff has not made a proper case for the relief sought.  The alleged cancellation was not effected in terms of the lease agreement.  Clause 4 of the lease agreement provides in part as follows:

“… Should the lessor or lessee fail to reach agreement within one month of the rent review date or the last day for this lease the rent and any escalations thereof shall be determined in accordance with clause 22 Arbitration.”

The lease further provides in clause 15 that in the event of non- payment of rent or any portion thereof on due date; or failure to rectify a breach of any condition of the lease within a period of 14 days of written notice having been given by the lessor to the lessee requiring such breach to be rectified, then the lessor shall have the right to terminate the lease and take possession of the premises.  It is not in dispute that the applicant failed to give notice of intention to cancel the lease as provided for in the lease agreement.

The respondent contends that applicant has at all material times sought to effect rental increments in retrospect.  This is not provided for in the lease agreement and is against public policy.  In Magodora and Others v Care International Zimbabwe SC 24-14 the court held that:

“In principle, it is not open to the courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted, even if they are shown to be onerous or oppressive.  This is a matter of public policy.”

R.H Christie in his book, Business Law in Zimbabwe at page 67 stated the position as follows:

“The business world has come to rely on the principle that a signature on a written contract binds the signatory to the terms of the contract and if this principle were not upheld any business enterprises would become hazardous in the extreme.  The general rule, sometimes known as the caveat subscriptor rule is therefore that a party to a contract is bound by his signature whether or not he has read and understood the contarct … and this will be so even if he has signed in blank … or it is obivious to the other party that he did not read the document.”

In the circumstances of this case, the applicant cannot attempt to effect rental reviews in retrospect in clear violation of the agreement between the parties.  In that regard, applicant cannot make out a case based on alleged breach not contemplated by the agreement.  Further, such retrospective increment is not provided for in our law.  The remedy of summary judgment is a drastic one.  Given the defects in the plaintiff’s declaration as indicated in this judgment, there might in my view, be a need for the applicant to amend its declaration before proceeding with its claims.

In Bastin v Madzima SC 37-20 at pages 11 to 12 of the cyclostyled judgment, the court reiterated that:

‘It is trite that in order to defeat an application for summary judgment a respondent must set out a bona fide defence with sufficient clarity and completeness to enable the court to decide whether the opposing affidavit discloses facts, which, if proved at trial, would entitle the respondent to succeed.”

I am satisfied that the applicant’s claims are not unanswerable.  The respondent has set out a bona fide defence with sufficient clarity. The respondent has not raised a flimsy defence.  The remedy for summary judgment would not be appropriate in the circumstances of this case.

For the aforegoing reasons, the application for summary judgment is hereby dismissed with costs.

Joel Pincus, Konson & Wolhuter, applicant’s legal practitioners

Honey & Blanckenberg c/o Tanaka Law Chambers, respondent’s legal practitioners