Britamac Distributors (Pvt) Ltd v Suleiman Ssenyonga Kakembo

In 2010, the plaintiff and defendant entered into a written lease agreement whereby the plaintiff was to develop the defendant's property (Stand 1502 Salisbury Township, also known as 15 Jason Moyo Avenue, Harare) by constructing 6 shops at its own cost. The plaintiff would then lease the property for an initial 5-year period from 1 June 2010 to 31 May 2015, paying the defendant US$4,000 per month in rent while collecting rent from sub-tenants in order to recoup its construction costs. The written agreement was signed on 11 March 2010 after oral negotiations around 9 March 2010. The plaintiff constructed the 6 shops by 31 May 2010. However, the plaintiff fell into arrears with the monthly rental payments due to financial difficulties. The defendant obtained default judgments in the Magistrates Court for eviction and arrear rentals of US$32,000. The plaintiff was evicted before recouping its construction costs. The plaintiff then sued the defendant for US$180,000 being the alleged construction costs on the basis of unjust enrichment.

• Whether an oral agreement with terms other than those in the written agreement was binding between the parties
• Whether the defendant was unjustly enriched at the plaintiff's expense, making him liable to compensate the plaintiff for construction costs incurred
• The quantum of damages recoverable by the plaintiff for unjust enrichment

Judgment for the plaintiff. The defendant was ordered to pay: (1) US$92,000 together with interest at 5% per annum from 9 May 2013 to date of full payment; and (2) costs of suit.

Where parties agree to reduce an oral agreement to writing, the written contract becomes the exclusive memorial of the transaction and its terms cannot be contradicted or varied by evidence of prior oral discussions. The principle of caveat subscriptor binds a signatory to the terms of a contract whether or not they fully read or understood it, absent fraud, misrepresentation, duress, undue influence, or reasonable mistake. In an unjust enrichment claim, a property owner who has been enriched by improvements made to their property by another party must compensate the improver, even where the improver breached the underlying agreement, as the enrichment is unjustified and no party should benefit unduly at another's expense. The measure of damages for unjust enrichment based on property improvements is properly assessed by comparing the property's value before and after the improvements, though courts may award damages based on available credible evidence where formal valuation evidence is not provided.

The court observed that both parties failed to contemplate or provide for the scenario where the lease agreement would be terminated before the plaintiff recouped its construction expenses, which led to the dispute. The court commented that the defendant's position that the expenses incurred by the plaintiff were of no concern to him was wrong, noting that "in all fairness he cannot expect to reap where he did not sow." The court noted that ideally the plaintiff should have obtained valuations showing the property's value before and after improvements, with the difference representing the compensation due, but the defendant's failure to provide any counter-evidence on valuation justified the court's reliance on the lesser of the two amounts claimed by the plaintiff.

This case is significant in Zimbabwean law for its application of unjust enrichment principles in the context of property improvements made pursuant to a lease agreement that was prematurely terminated due to the improver's breach. It establishes that a party who improves another's property is entitled to compensation even where they have breached the agreement, as the property owner cannot be unjustly enriched at the improver's expense. The case also reinforces the principles of sanctity of contract and caveat subscriptor, confirming that parties who sign written agreements are bound by their terms regardless of claims of not understanding the contract or it being prepared by the other party's lawyers. The judgment demonstrates the court's willingness to award damages for unjust enrichment based on available credible evidence even where the plaintiff failed to provide proper valuation evidence, rejecting the defendant's argument that he had no obligation to compensate for improvements he did not request.