Beullah Chirunga v Property Shop (Private) Limited

### Preamble
1
HH 62-22
CIV “A” 71-21
App 40/21
Ref case MC 428/19
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BEULLAH CHIRUNGA

versus

PROPERTY SHOP (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

TSANGA AND MAXWELL JJ

HARARE, 16 November, 2021 and 9 February 2022

Civil Appeal

D. Ndakwenwa & M. Kavhumbura, for the appellant

T. Nyabeze, for the respondent

MAXWELL J

This is an appeal against a judgment in favour of the Respondent handed down on 5 May 2021 at the Harare Magistrates Court.

Respondent had issued summons claiming payment of an equivalent of $4 370.00 USD, being tenant placement fees, at the auction rate, plus interest thereon at the prescribed rate calculated from 8 January 2019 to date of payment in full. Respondent also claimed costs of suit on a legal practitioner and client scale as well as collection commission. The particulars of claim were that on 8 January 2019, the parties entered into an Owner’s Mandate to Lease in terms of which Respondent was to secure a tenant for the Appellant’s immovable property known as 300 Fairway Avenue, Borrowdale Brooke, Harare. In exchange, Appellant would pay a tenant placement fee of $43 700.00 (Forty-three thousand Seven hundred dollars) which amount was equivalent to rental for one month. Respondent alleged that on 12 April 2019, through Memory Muzenda (Memory), looked for and found Mr Wang who expressed his desire to rent the Appellant’s property. Memory is said to have advised Appellant’s husband that she had found a tenant. Respondent stated that Mr Wang put in an offer of USD 3800.00 per month which was rejected by Appellant. Negotiations followed and Appellant asked for Mr Wang’s details. Respondent averred that Appellant approached Mr Wang behind Memory’s back and concluded a lease agreement with him. Respondent averred that it complied with its obligations in terms of the mandate and secured a tenant for the Appellant’s property. Respondent further averred that Appellant breached the agreement in that she has failed and/or refused to settle the tenant placement fee despite demand.

The Appellant, in her plea, averred that Respondent had not fulfilled the mandate between the parties and therefore cannot claim tenant placement fees. She further averred that Respondent was supposed to secure a tenant and draft a lease agreement. According to her, her husband is the one who obtained the tenant who was residing on the property at the time of the institution of these proceedings.  She further averred that Respondent was not entitled to payment either in United States Dollars or Zimbabwean dollars at the auction rate. The matter went to trial and the Respondent’s claim was granted with an amendment on the amount to be paid.

Judgment of the Court a Quo

The court a quo found that although Appellant entered into an agreement with the Respondent, she was aware that Memory was communicating with her husband over the same agreement. It observed that Appellant did not stop Memory from communicating with her husband on issues relating to the mandate thereby creating the impression that she had allowed him to be involved.

It further observed that when Appellant’s husband denied the offer brought by Memory, he clearly stated that both of them were not accepting it on the basis that usd 4000.00 was their last figure. It was of the view that the acceptance of a less offer from the same tenant without Memory’s involvement did not negate the agreement. The court stated that the only inference that can be drawn is that the Appellant allowed her husband, who was present when the mandate was signed, and also a co-owner of the immovable property to be leased, to take an active role with her approval and she took a back seat. The court concluded that Memory introduced the tenant to the Appellant therefore Respondent was entitled to the tenant placement fee. It however did not award the amount claimed  on the basis that it would be in the interest of justice  that Respondent’s commission be in terms of the offer that was finally accepted by the Appellant on 30 April 2019, which was $ 3500.00 usd plus vat. The court also awarded Respondent costs of suit.

Grounds of Appeal

Appellant was aggrieved and noted an appeal on the following grounds; -

The learned magistrate erred and grossly misdirected herself in finding that the Respondent performed its obligation in terms of the mandate contrary to the evidence that was led which proved that Respondent did not bring the tenant and draw up the lease agreement as per the mandate.

The learned magistrate erred and grossly misdirected herself in making a finding against the Appellant based on communications that was made (sic) by an individual who was not party to the mandate between Appellant and Respondent.

The learned magistrate erred and grossly misdirected herself in finding the Appellant liable after making a finding that the introduction of the tenant was made to one Mr Chirunga in terms of a new agreement between Mr Chirunga and the Respondent.

Appellant prayed for the setting aside of the judgment of the court a quo and its substitution with a dismissal of the Respondent’s claim.

Submissions by the Parties

Appellant submitted that in terms of the mandate, Respondent’s obligations were to find a tenant and draw up a lease agreement. She submitted that the evidence led showed that Memory did not introduce the tenant to Appellant and did not discuss with Appellant but with her husband. Appellant indicated that the grounds of appeal relate to factual findings and that she was cognizant of the fact that an appeal court is slow to interfere with factual findings made by a trial court. She referred to Zinwa v Mwoyounotsva SC 28/15, Aidan Beckford v Elizabeth Anne Beckford SC 25/09 and Hama v National Railways of Zimbabwe 1996 (1) ZLR 664. She submitted that the magistrate’s findings ought to be set aside  on the ground that they are contrary to the evidence led by the parties. She pointed out that the magistrate accepted that Memory was communicating with Mr Chirunga. In her view that communication had no bearing on her as the signatory to the mandate. She therefore criticizes the magistrate for finding that Respondent had performed its obligation in terms of the mandate agreement based on the communication between Memory and Mr Chirunga. Appellant submitted that Respondent did not bring the tenant and did not draw up the lease agreement as per mandate and did not discharge the onus to prove that it did. She prayed for the granting of the appeal with costs.

Respondent submitted that the court a quo considered the correct issue and came to a conclusion supported by the facts. It submitted that it is clear that the evidence supports the conclusion that the Respondent brought Mr Wang to the Appellant and that Appellant’s husband, whilst working in common purpose with her, pretended to have rejected the offer that was presented to him by Memory on account that the offer was below an acceptable amount. It further submitted that it was not controverted that the Appellant went on to conclude a lease agreement with the same Mr Wang ‘nicodemously’. Respondent pointed out that Mr Chirunga had admitted that he was working in common purpose with his wife and therefore the court cannot be faulted for finding that the communication between Memory and Appellant’s husband were known, sanctioned and approved of by Appellant and that the denial thereof was meant to evade payment. Respondent further pointed out that whether or not Respondent had physically drafted the lease agreement was never an issue because it conceded that it did not do so because it was prevented from doing so by the lies of the Appellant’s husband. It referred to the case of Stohill Investment Properties (Pvt) Ltd v Mahachi & Ors 2014 (!) ZLR 533 in which it was held that the fact that the seller elected to side-line the agent and accepted a lower price than that given in the mandate does not disentitle the agent of its commission on the lower price accepted by the seller who deliberately prevented the agent from negotiating the price. Respondent submitted that the court a quo did not err in concluding that the communication between Memory and Mr Chirunga was with the knowledge and benefit of the Appellant as the conclusion reached was the most natural and plausible inference from a number of possible inferences. It referred to S v Masawi & Anor  1996 (2) ZLR 472 in  which Korsah J commented that the findings of a lower court are conclusive on appeal if they have support in the facts established and in reasonable inferences. Respondent prayed for the dismissal of the appeal with costs on a higher scale.

Analysis

The court a quo considered the evidence of the witnesses and found in favour of the Respondent. It is a settled principle that an appellate court will not easily interfere with factual findings made by a lower court unless the findings are grossly unreasonable. (See ZINWA v Mwoyounotsva (supra) Hama v NRZ (supra) and Reserve Bank of Zimbabwe v Corrine Granger and Another SC 34/01) This is because the lower court enjoys the opportunity to see the witnesses on the stand, assess their demeanour and credibility. Such findings of fact cannot easily be interfered with by an appellate court as it is limited to the record of proceedings.

The Respondent had to prove that it had found a tenant for Appellant and therefore was owed

tenant placement fees. It is common cause that Mr Wang was the tenant that Memory was

negotiating with and that even though no lease agreement resulted from Memory’s negotiations,

Mr Wang ended up signing a lease agreement with Appellant. It is also common cause that

Memory was communicating with Appellant’s husband most of the time. Respondent was side-

lined when the lease agreement was signed but as stated in Stohill Investment Properties (Pvt)

Ltd (supra), it is entitled to its tenant placement fees.  It is pertinent to note that the standard of

proof in all civil matters is on a balance of probabilities. In enunciating the concept of proof on a

balance of probabilities, the case of Miller v Minister of Pensions [1947] 2 All ER 372, was

quoted with approval in the case of British American Tobacco Zimbabwe v Chibaya SC 30/19,

where the concept of balancing probabilities was explained as follows:

“It must carry a reasonable degree of probability but not so high as is required in a criminal case. If the evidence is such that the tribunal can say ‘we think it more probable than not’, the burden is discharged, but if the probabilities are equal it is not.”

This is further emphasized in the book, Principles of Evidence, 4th ed (2016) Juta: Cape Town, wherein the authors Schwikard P.J and van der Merwe S.E state that:

“In civil proceedings the inference sought to be drawn must also be consistent with all the proved facts, but it need not be the only reasonable inference: it is sufficient if it is the most probable inference.”

The Court finds no misdirection in the court a quo’s findings that the Respondent performed its obligation in terms of the mandate and that the communication made to Mr Chirunga was sufficient in fulfillment of the mandate. Accordingly, there is no merit in the appeal. The following order is appropriate.

The appeal be and is hereby dismissed with costs.

Tsanga J, I agree………………………………..

C.Nhemwa & Associates, Appellant’s Legal Practitioners.

Mlotshwa & Maguwudze, Respondent’s Legal Practitioners.