Ray Chudy N.O v Yatch (Private) Limited

### Preamble
1
HH 780-18
HC 7806/14
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RAY CHUDY N.O

versus

YATCH (PRIVATE) LIMITED

HIGH COURT OF ZIMBABWE

MANZUNZU J

HARARE, 17 September 2018 and 22 November 2018

Civil Trial

Z. Chidyausiku, for the plaintiff

T.K Bvekwa, for the defendant

MANZUNZU J: This is one case where both parties did not seriously consider presenting their evidence in a clear and logical manner. The duty for coherence in the presentation of pleadings and evidence before the court lies with the parties. The court has no duty to fill pot holes in the evidence of parties.

The plaintiff Ray Chudy NO sued the defendant Yatch (Pvt) Ltd for arrear rentals and other relief. I can not do any better than quote the plaintiff’s claim as it appears on the face of the summons.

“The plaintiff’s claim against the defendant is for payment of the sum of US$9 246.00 being 	arrear rentals plus interest thereon at the prescribed rate and eviction of the defendant from the 	leased premises arising from breach of a verbal lease agreement 	entered into between plaintiff 	and defendant in or about December 2006.

Wherefore plaintiff’s claim against the defendant is for the following:

An order for payment of arrear rentals in the sum of USD$9 246.00

Interest on the sum of US$9 246.00 at the prescribed rate calculated from 1st August 2014 to date of payment in full.

A declaration that the verbal lease agreement entered into by and between the plaintiff and the defendant in or about December 2006 has been lawfully terminated.

An order that in the event of the defendant, its sub-tenants and assignees failing to abide by paragraph (4) above, the Sheriff or his deputy be and is hereby authorised to evict the defendant and anyone claiming title through it from No. 28 Edison Crescent, Graniteside, Harare.

An order that the defendant’s property be subject to the lessor’s tacit hypothec until the defendant has paid the outstanding rentals and interest thereon in full.

Payment of holding over damages in the sum of $32.26 or US$1 000 per day for No. 28 Edison Crescent, Graniteside, Harare, calculated from 1st August 2014 to the date of eviction together with interest thereon calculated at the prescribed rate from 1st August 2014 to the date of payment in full.

An order that the defendant pays the costs of suit.”

The defendant challenged the action and stated in its plea by claiming that plaintiff had no locus standi, while admitting to the existence of a lease agreement with Chudy Properties (Pvt) Ltd in respect to stand no. 28 Edison Crescent, Graniteside, Harare. The defendant said that there was an agreement to suspend the payment of rent pending compensation for its property damaged by the rains. Termination of the agreement was disputed.

At the close of the pleadings the parties identified and agreed on the following issues for trial;

“1. Whether plaintiff and defendant entered into a lease agreement in respect of 28 Edison Crescent. Graniteside, Harare.

Whether defendant owes outstanding rentals in the amount of US$9 246.00 to the plaintiff plus interest thereon.

Whether plaintiff was entitled to terminate the lease agreement.

Whether there is any agreement exempting the defendant from payment of rentals under the lease agreement.

It must be noted that pleadings are not evidence. Judgment is passed based on the evidence adduced before the court.

The plaintiff relied on the evidence of one Alistair Headicar who at the time was the letting manager of Fox and Carney Estate Agents who were managing the property at no. 28 Eddison Crescent, Harare. This is the property leased by the defendant. He relied on and produced a lot of documents in his evidence. First he referred to a lease agreement which was marked exhibit 1. The lease agreement is between Chudy Properties (Pvt) Ltd and Yatch presumably Yatch (Pvt) Ltd the defendant, in respect of a building at no. 28 Eddison Crescent, Graniteside, Harare. Nowhere in this agreement does it make reference to Ray Chudy NO who is the plaintiff. The witness did not explain why on one hand we have a plaintiff who is different to the party in the agreement. If one were to refer to the plaintiff’s declaration it says, “the plaintiff is Ray Chudy in his capacity as the executor of the estate of the late Menachim Chudy.” The relationship between Menachim Chudy and Chuddy Properties (Pvt) Ltd remain unexplained. The plaintiff did not give evidence and no explanation was given why plaintiff was not availed as a witness.

The witness explained the clauses of the lease agreement and how such clauses are used to defeat the defendant’s claim for a set off.

Exhibit 2 was one of the letters of demand dated 19 July 2011 to the defendant for arrear rentals. The same was for exhibit 3 dated 12 September 2011 in which $9 688 was claimed. Exhibit 4 produced by the witness is email correspondence from him to the representative of the defendant. The email relates to what the witness said was a statement for K M Auctions and Yatch. There is no explanation for the inclusion of K M Auctions since such is not a party to these proceedings.

Exhibit 5 is a letter written on 10 February 2014 by this witness to K M Auctions of No. 20 Edison Crescent. The letter is demanding rentals and undertaking to repair some roof leakages. It must be noted that the lease agreement has no connection to KM Auctions and it relates to No. 28 Eddison Crescent and not No. 20 Edison Crescent.

Then exhibit 6 was produced, it’s a letter written to KM Auctions with the address units 20 and 28 Edison Crescent, Graniteside. The letter seeks clarification with unit 28 following a verbal meeting.

Exhibit 7 is a letter dated 24 July 2014 to the defendant from Messrs Dube, Manikai & Hwacha, legal practitioners, acting on behalf of Action Property Sales the managers of No. 28 Edison Crescent, Graniteside giving notice for the termination of the lease agreement. That same letter identifies the landlord as “the Estate of the late M Chudy”

Exhibit 8 is the mandate to manage property given to Action Property Sales. The witness also produced exhibit 9 a memorandum of extension of lease for the period 1 January 2008 to 31 March 2008 which identifies the lessor as estate of the late M Chudy and lessee as Yatch Private Limited. No evidence was led to explain whether this document relates to the parties in this case.

Then there was exhibit 10 a letter from K M Auctions of 15 August 2013 to Fox and Carney with the reference:

“Damage of KM Auctions Movable Property by Rain Water; Repair and Maintenance”

Exhibits 11 to 16 were not particularly important for the analysis of the quality of evidence before the court as these dealt with the internal matters within Fox and Carney.

The cross-examination took the line of evidence given by the witness and still leaving certain areas in the dark. The defendant relied on the evidence of one witness Kenny Mubaiwa. He too relied on a number of documentary exhibits. His evidence too suffered from dark spots. It must be noted that apart from a claim for damaged goods which is put as a defence for a set off, there is no counter-claim by the defendant. The witness produced exhibit A, a letter dated 2 July  2013 which he wrote to Fox and Carney under the letter head K M Auctions Pvt Ltd. He signed as the managing director of that company under reference “state of repair: 20 Edison Crescent, urgent request for maintenance”

It must be noted that KM Auctions is not the defendant and 20 Edison Crescent is not the same as 28 Edison Crescent, the property under lease with the defendant. The witness said KM Auctions is the one paying rent and is the same company as the defendant. No explanation is given as to why two entities, which prima facie, show different juristic personalities are said to be the same without explanation. The witness also referred to exhibit 10 as a letter he wrote complaining about damage to KM Auctions property. Exhibit B was produced which was a letter dated 2 September 2013 from Fox and Carney to KM Auctions advising how compensation for the damaged goods would be paid through insurance. Exhibit C is a letter from KM Auctions (Pvt) Ltd under the head “Lease agreement: 20 Edison Crescent, Graniteside” where there was a proposal to stop payment of rent in respect to the 2 leases in lieu of compensation. Again the 2 leases are not explained neither is the involvement of the defendant.

The response by Fox and Carney of 24 September 2013 is to KM Auctions with reference to 20 Edisons Crescent. The defendant is not in picture at all.

The defendant then closed its case.

This is the sort of convoluted evidence before this court. In both their written submissions counsels for both parties do not realise the twisted evidence they lead. They both insisted they have made a good case for their clients. Certainly not.

“In civil cases the burden of proof is discharged as a matter of probability. The standard is 	often expressed as requiring proof on a ‘balance of probabilities’ but that should not be 	understood as requiring that the probabilities should do no more than favour one party in 	preference to the other. What is required is that the probabilities in the case be such that, on a 	preponderance, it is probable that the a particular state of affairs existed.”

In Miller v Minister of Pensions, 1947 (2) ALL ER 372 and 374 Lord Denning stated,

“…..If the evidence is such that the tribunal can say ‘we think it more probable than’ , the 	burden is discharged, but if the probabilities are equal it is not.”[my emphasis]

The plaintiff’s case is riddled with inconsistencies, dark spots as it were. I have already alluded to then in this judgment. But in summary I state hereunder that the issue of the plaintiff’s locus standi was never clarified, the several dealings with KM Auctions and its relationship with the defendant remains a mystery. On the other hand the defendant does not deny its duty to pay rent but claims a set off, but pay rent to who because a party to the lease agreement is not the plaintiff.

Given the disjointed pieces of evidence the court must apply the test laid down in the case of Supreme Service Station v (1969) (Pvt) Ltd v Fox and Goodridge (Pvt) Ltd, 1976 (4) SA 403 e 409. The test is “what ought a reasonable court do” under these circumstances. A reasonable court under these circumstances, in my view, can only grant an absolution from the instance.

Accordingly;

Absolution from the instance is granted with costs.

Dube, Manikai & Hwacha, plaintiff’s legal practitioners

Bvekwa Legal Practice, defendant’s legal practitioners