National Railways of Zimbabwe Contributory Pension Fund v Mugadza Trading & Transport t/a Chase Water Service and Others

The plaintiff (National Railways of Zimbabwe Contributory Pension Fund) was the lessor of shop number 55, Bulawayo Centre, which was leased to the first defendant under a lease agreement concluded on 21 June 2010. An addendum to the lease agreement was signed on 12 June 2015, effective from 1 July 2014, setting rentals at US$653 and requiring the defendants to pay an attributable share of 0.92% of total maintenance and operating costs, as well as electricity, water charges, owners charges, and VAT on a pro rata basis. The plaintiff issued summons claiming arrear rentals of US$10,568.86 and operating costs of US$58.74, seeking cancellation of the lease agreement, eviction of the defendant, and holding over damages. The defendants pleaded that there was another pending case (HC 1939/14) involving the same cause of action (lis pendens), that no amounts were due, and that they had in fact overpaid the plaintiff. The plaintiff's evidence showed an irregular payment pattern by defendants dating back to April 2010, but the plaintiff could not produce source documents to prove operating costs beyond the last six months ending May 2018.

• Whether the defendant was in breach of the lease agreement
• Whether the defendant owed the plaintiff the sum claimed in the summons
• Whether the plaintiff established a prima facie case at the close of its case
• Whether the application for absolution from the instance should be granted

The defendant's application for absolution from the instance was granted with costs.

At the close of the plaintiff's case in an application for absolution from the instance, the test is whether there is evidence upon which a court, applying its mind reasonably to such evidence, could or might (not should or ought to) find for the plaintiff. Where the plaintiff's evidence is at variance with its pleaded case, where the plaintiff fails to produce source documents necessary to prove its claims, where the plaintiff's witness concedes that the defendant may have overpaid, and where the plaintiff cannot substantiate the figures claimed in the summons, the plaintiff has failed to establish a prima facie case and absolution from the instance must be granted. A party cannot lead evidence through heads of argument, and exhibits created solely for litigation purposes without underlying source documentation are insufficient to establish a claim.

The court noted that the plaintiff attempted to explain the status of the pending matter HC 1132/14 in its heads of argument, but observed that this is not permissible as the plaintiff may not lead evidence through heads of argument. The court further observed that the explanation offered in the heads of argument "makes no real sense and does nothing to deal with the defence of lis pendens" and "only adds to the confusion in the plaintiff's case." The court also commented that "to proceed with the matter beyond the plaintiff's case would be to try and find evidence that may buttress the plaintiff's case. It is not desirable to do so."

This case illustrates the strict application of the test for absolution from the instance in Zimbabwean civil procedure. It demonstrates that a plaintiff must establish a prima facie case based on its pleadings and evidence led, and cannot rely on unsubstantiated claims or evidence created for litigation purposes. The judgment reinforces the importance of producing source documents to prove claims, particularly in commercial lease disputes involving operating costs. It also highlights that where a plaintiff's evidence contradicts its pleaded case or where the plaintiff's own witness concedes facts favorable to the defence, absolution from the instance will be granted. The case serves as a warning to litigants about the consequences of inadequate preparation and failure to properly substantiate monetary claims.