Jai Ambe Inv. (Pvt) Ltd. v Golden Horse Trading Co. (Pvt) Ltd. (HC 11542 of 2015; HH 350 of 2016) [2016] ZWHHC 350 (8 June 2016)

1 HH 350-16 HC 11542/15 JAI AMBE INVESTMENTS (PVT) LTD versus GOLDEN HORSE TRADING COMPNAY (PVT) LTD t/a FOOD KING HIGH COURT OF ZIMBABWE MATANDA-MOYO J HARARE, 31 May 2016 and 8 June 2016 Pre- trial Conference B Machengete, for the plaintiff Ms M Kenyende for the defendant MATANDA-MOYO J: The plaintiff issued summons against the defendant for the following relief; 1) An order confirming the cancellation of an agreement of lease between the parties. 2) An order ejecting the defendant and any such other person(s) enjoying or claiming occupation through it forthwith from the premises number 32 Robert Mugabe Road, Harare. 3) Costs of suit on a legal practitioner – client scale. In its declaration the plaintiff alleged that it entered into a lease agreement in terms of which the plaintiff leased to the defendant property known as number 32 Robert Mugabe Road, Harare. In terms of clause 9.6 of the amended lease agreement the defendant is not allowed to make any alterations to the premises without the written approval of the plaintiff. The plaintiff alleged that in violation of the lease agreement the defendant has put up structures on the pavement which the defendant is subletting to third parties. No authority was given to the defendant to put up such structures which had the effect of altering the original approved building. In violation of clause 10.1 of the amended lease agreement the defendant is subletting the premises to various third parties including Caltech Technologies (Pvt) Ltd, Matcan HH 350-16 HC 11542/15 Cellphones, Fit ‘O’ Fashions. The defendant did not receive the plaintiff’s authority before subletting the premises. Despite notice to defendant to rectify the above breaches, it has failed to do so. The plaintiff claims cancellation of the lease agreement and vacant possession of the premises. In its plea the defendant denied putting up structures on the pavement and subletting the premises. The matter came up for Pre-Trial Conference before me. During the discussions it became apparent that indeed the defendant had put up structures without the consent of the plaintiff. However, the defendant insisted he had an approved plan by City Council. His defence was that the City of Harare’s approval overrides the requirement for consent from the plaintiff. Pictures were produced by the plaintiff which showed that indeed the defendant was subletting the premises. Counsel for the defendant conceded that in view of the glaring evidence there are no issues to be referred for trial. In fact the parties agreed that no issues exist in the matter as it is clear that the defendant was subletting the premises and that the defendant had put up structures in violation of the lease agreement. The representative of the defendant insisted that the matter be referred for trial. The issue which falls for determination is whether referral to trial is upon asking or whether referral should be made where there are triable issues. An issue is triable if it is in dispute. No genuine issue of fact or law exists in this matter. The purpose of a pre-trial conference is for the judge to formulate issues for trial, both factual and legal. I found none in this matter. Having found no issues, the question is whether I am obligated to simply refer the matter for trial upon asking. My view is that I can enter judgment at this stage if all parties agree that there are no issues. Rule 182 (2) provides: “At a pre-trial conference the parties shall attempt to reach agreement on possible ways of expediting or curtailing the duration of the trial and on the following matters - (a) The obtaining of admission of fact and of documents ---------- (e) plans, diagrams, photographs ------ -------- (h) a definition of the real issues and the manner in which any particular issue may be proved; ----” HH 350-16 HC 11542/15 Rule 182 (ii) provides; “A judge may dismiss a party’s claim or strike out his defence or make such order as maybe appropriate if – (b) Any other party applies orally for such order at the pre-trial conference.” From the above it is clear that a judge can make an order upon an oral application by any party. The purpose of a pre-trial conference being to identify issues for trial. I am of the view that should it be clear there are no issues, upon being asked a judge can make an appropriate order. I am of the opinion that a trial is unnecessary in the present circumstance and I agree with the plaintiff that I grant judgment at this stage. Accordingly I order as follows; 1) That the cancellation of the lease agreement between the parties is hereby confirmed. 2) That the defendant and any such other persons claiming right through them vacate certain premises namely number 32 Robert Mugabe Road, Harare within seven days of receipt of this order. 3) In the event of them failing to vacate the deputy Sheriff or his representative is authorised to evict them from the above premises. 4) The defendant is ordered to pay costs on a client – legal practitioner scale. Rubaya & Chatambudza, plaintiff’s legal practitioners Tavenhave & Machingauta, defendant’s legal practitioners