Assa Makovere v Elizabeth Murove and Wilfred Murove (The late) Elizabeth Murove v Assa Makovere

### Preamble
1
HH 385-2012
HC 905/08
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ASSA MAKOVERE

versus

ELIZABETH MUROVE

and

WILFRED MUROVE (The late)

ELIZABETH MUROVE

versus

ASSA MAKOVERE

HIGH COURT OF ZIMBABWE

BERE J

HARARE, 26, 27 and 28 September 2012

Civil Trial

K Maeresera, for the plaintiff/defendant

A Masango, for the defendant/plaintiff

BERE J: There have been a number of developments in this case from the time of summons commencing action up to the time	this matter was eventually heard on 26 September 2012.

Firstly, following the demise of her husband who was the second defendant in case number HC 6986/10, Mrs Elizabeth Murove successfully applied for an order entitling her to substitute her late husband in order for her to remain as the sole defendant in that matter. The order to this effect was granted by my brother, MAWADZE J on 11 July 2011.

The second notable development is that pursuant to an application for consolidation of the two matters for purposes of trial made, my brother KUDYA J granted the appropriate order on 14 March 2012 hence the hearing of these two cases together.

Thirdly and in respect of case number HC 6986/10, at the commencement of the trial on 26 September 2012 Mrs Murove through her counsel moved for the amendment of her summons commencing action by claiming an amount of US$6015-00 being the adjusted figure of unpaid rentals and utility bills from February 2009 to September 2012. She also applied for holding over damages in the sum of $115-00 from the month of October 2012 until the defendant’s vacation from her premises.

The amendment sought was granted by consent.

To avoid unnecessary confusion I shall in this judgment refer to Assa Makovere as the plaintiff and to Elizabeth Murove as the defendant.

The Background

A simplified version of the consolidated matters as alleged by the plaintiff is to the effect that in the year 2000, when he was a tenant of the defendant and her late husband, the two requested him to make improvements to their property referred to as stand number 950 Crowborough North, Harare, where he was a tenant. The two defendants promised to purchase a stand for him upon the completion of the requested improvements.

Pursuant to the contract the plaintiff engaged builders and purchased building material and commenced the agreed improvements on the property which he completed but much to his surprise the defendants reneged on their earlier undertaking.

This then prompted the plaintiff to commence action against the defendants seeking an order compelling the two to purchase for him a stand in the High Density area of Harare measuring 300 square metres or alternatively that the defendants be ordered to pay a sum of $240 000 000 000-00 (two hundred and forty billion Zimbabwe dollars) being the estimated cost of the stand that had been promised. At the joint pre-trial conference held on 3 November 2011 the value of the residential stand was put at US$7 000-00 and this figure represented the new amount of damages sought by the plaintiff.

In contrast the defendants position was a complete denial of the existence of a contract alluded to by the plaintiff. They alleged that they had known the plaintiff as a tenant since 1998. In 1999 the two commenced improvements on the leased property using the defendant’s personal resources. In the rare occasions that the plaintiff would use his resources to purchase any building material, this money was immediately set off against the rentals which the plaintiff was obliged and expected to pay. The role of the plaintiff was merely to ensure the security of the building material and its smooth distribution to the contractors/builders.

The defendants further alleged that upon the completion of the improvements on their stand in 2001, the plaintiff continued in occupation of the property.

However, in June 2006 the defendants gave notice to the plaintiff to vacate the leased property. The tenant did not vacate the property as alleged. From June 2006 up until to date the plaintiff has stubbornly refused to pay rentals and utility bills whose cumulative and undisputed figure stood at US6 015-00 as at September 2012.

It was this belligerent attitude on the part of the tenant which prompted the defendant to seek for the plaintiff’s eviction, the payment of outstanding rentals and holding over damages.

The Evidence

The evidence of the plaintiff was that he was staying at the leased property merely because the defendant had reneged on her undertaking to purchase him a stand.

The witness could not advise the court how much exactly he had spent on improvements on the leased premises. It was through the plaintiff that a bundle of receipts marked exh ‘A’ was produced. These exhibits did not help in proving or in establishing the plaintiff’s claim as virtually all those receipts bore the name of the defendant as the purchaser of the building material.

The plaintiff was unable to point out to any invoice or receipt of the material which he allegedly bought.

Under cross-examination the witness conceded that since the advent of dollarization he had not paid a single cent as rentals to the defendant. The witness further conceded he has also not been paying for utility bills

Ironically when he was giving evidence in chief the plaintiff had suggested that the defendant had refused to accept his rentals.

This position taken by the plaintiff would not make sense in the light of para(s) 4 - 8 of his plea filed on 25 November 2010 wherein he flatly denied that he was a tenant of the defendant. If indeed he was not a tenant, he could not possibly have tendered any rentals to the defendant as he alleged in court.

The defendant’s evidence was jungled up and the contradictions therein demonstrated how far he was prepared to go in misleading who ever cared to listen to his poorly woven testimony.

To compound his situation the plaintiff was not of any assistance to the court in explaining how $7000-00 in damages had been arrived at. Figures for damages must be properly proved and the court has no time to religiously accept any figures thrown in. A claim for damages must not be looked at as a fishing expedition.

Not only this, but as already pointed out the plaintiff was not able to specify how much he had expended on the improvements to the defendant’s property.

The defendant’s evidence was well supported by the documentary evidence tendered in this court in particular annexure ‘A’ which was presented by none other than the plaintiff himself. The exhibit showed all the receipts bearing her name as the purchaser of all the building material reflected therein thereby landing credence to her story that she personally was responsible for the improvements to her property.

Exhibit 6 which was again compiled by the plaintiff was consistent with the testimony of the defendant for it again showed she had personally made all the payments therein.

The exhibit shows the defendant’s names appearing as the purchaser of the building material. The witness explained that exh 3 did not quite represent the truth as it was not signed by herself and her late husband but by the plaintiff himself. She denied the authenticity of exh 2, a document she said she had not seen until it was shown to her in court and queried why this document had to be written almost five years after the alleged completion of the improvements on the property.

She also said it was quite curious that this document was a direct response to the notice given to the tenant to vacate the premises. This argument made sense.

The plaintiff projected himself as a very cunning individual, as evidenced by the dramatic manner in which he gave his testimony and also in having the audacity of staying at the defendant’s house for a period in excess of six years without paying rentals. How strange?

Even if this court were to assume that, indeed the plaintiff made the improvements as claimed, that on its own would not be good enough for him to use as leverage against the eviction sought by the defendant. At law a claim based on improvements allegedly made is not a good ground to resist eviction. This position is eloquently expressed by GILLESPIE J in the case of Ormashah v Karasa in the following:

“On this point of law I can do no better than to refer with respect, and to adopt with diffidence, the statement of law expounded by VAN ZYL J in Syfrets Pasticipation Bond Managers Limited v Estate & Co-op Wine Distributors (Pty) Ltd 1989 (1) SA 106 (W). From 109 H to 111B the learned judge embarked upon a thorough discourse of the jurisprudential basis of a ius retentionis and the extent to which such a lien has been recognised as enforceable by lessees according to the Roman–Dutch Law. …

The effect of this law is unequivocally that a lessee, and consequently the defendant, has no right of retention of occupation of leased property after the termination of the lease as a lien against compensation for improvements…”.(my emphasis)

See also the case of Tunatemore Printers (Pvt) Limited v Oragplate Pvt Limited.

From these authorities, there can be no doubt that whichever way one looks at the position of the plaintiff, his eviction is unavoidable.

The plaintiff’s story was found to be extremely porous and impossible to believe. In his own words and comparatively the defendant was in a stronger position financially than him. Given this scenario how on earth the defendant would have sought financial refuge in him boggles the mind.

The defendant has specifically stated that her outstanding rentals inclusive of utility bills stood at US$6 015-00 as at September 2012. This figure has not been disputed by the plaintiff. If anything, I understood the defendant to be saying during court addresses that, should the court find in his favour he would wish this figure to be set off against the alleged value of the stand allegedly due to him.

I am unable to find in his favour for it is impossible to do so.

In conclusion, I can do no better than borrow the remarks of R H Christie when he states that:

“Ascertaining the terms of an oral contract is always likely to be bedevilled by faulty memory, dishonesty and genuine misunderstanding ….”.

This case presents itself as a classic case of unashamed dishonesty on the

part of the plaintiff. He certainly has chosen not to be candid with the court.

I accordingly make a specific finding in favour of the plaintiff warranting me to make the following order:

That the plaintiff be and is hereby evicted from stand 950 Crowborough North, Harare within seven days from the date of this judgment.

That the plaintiff be and is hereby ordered to pay the undisputed sum of US$6 015-00 being arrear rentals and utility bills within 30 days from the date of this order.

That plaintiff be and is hereby ordered to pay holding over damages in the sum of $115-00 per month until the tenant vacates the leased property.

That the tenant pays costs of suit.

Musunga & Associates, plaintiff’s legal practitioners

Maeresera & Partners, defendant’s legal practitioners