The plaintiff leased commercial premises to the first defendant in December 2004 for a butchery business. The second defendant (WT Swan) stood as surety. The lease included refrigeration equipment comprising open drive freezer units. During the tenancy, the defendants removed the original open drive freezer units and replaced them with sealed cold room units. In May 2011, the defendants gave notice to vacate the premises in June 2011. The plaintiff claimed the defendants left the premises in breach of the lease by failing to restore the original refrigeration equipment and failing to vacate properly. The plaintiff claimed US$82,903.62 comprising: rates and water charges ($2,025.68), penalty for late rent payment ($1,225.00), damages for holding over ($10,986.30), cost to replace refrigeration equipment ($58,491.00), and electricity charges ($10,175.64). At trial, the plaintiff acknowledged the electricity claim had fallen away and reduced the refrigeration claim to $36,900.00 for second-hand units. The plaintiff admitted he had sold the closed unit systems installed by defendants to a new tenant and that the premises were currently being let with that same equipment.
Absolution from the instance granted in favor of the defendants with costs.
To resist absolution from the instance, a plaintiff must adduce evidence upon which a reasonable court could or might find for the plaintiff, establishing a prima facie case on all elements of the claim. When claiming damages, the plaintiff bears the onus of establishing both that damages were suffered and the quantum thereof, using an appropriate method. A causal link between the defendant's actions and the damages must be apparent, and the loss must not be remote. It is not competent for a court to embark upon conjecture in assessing damages where there is no factual basis in evidence, or an inadequate factual basis, for an assessment. A plaintiff cannot claim damages for loss of rental income when the plaintiff's own evidence shows that the premises could have been let and the loss was attributable to the plaintiff's own actions rather than the defendant's conduct.
The court noted that while the plaintiff did not plead damages in the declaration and instead claimed for replacement costs, this did not prejudice the defendants as they were always aware that the main issue was the plaintiff's desire to have the fridges replaced. The court also observed that regarding the joint and several liability claim, the first defendant was a company capable of entering into its own agreements and the lease was clear that only the second defendant stood as surety, not the third and fourth defendants. The court stated that at the close of the plaintiff's case, it is the evidence led to support the case that is decisive, not what was said in cross-examination. The court emphasized that a judicial officer considering absolution should always lean in favor of the case continuing if there is reasonable evidence on which the court might find for the plaintiff.
This case reinforces important principles in Zimbabwean civil procedure regarding absolution from the instance and the burden of proof on plaintiffs. It demonstrates that a plaintiff must establish a prima facie case on all elements of a claim, particularly regarding quantum of damages. The judgment emphasizes that courts cannot engage in conjecture when assessing damages where there is inadequate factual basis in the evidence. It also illustrates the duty to mitigate losses in contractual disputes and that a plaintiff cannot claim damages for losses that are self-inflicted or could have been avoided. The case serves as a warning about the importance of proper pleadings and adducing sufficient evidence to support all elements of a claim, particularly the quantum and method of calculating damages.