Survey
* Your assessment is very important for improving the workof artificial intelligence, which forms the content of this project
* Your assessment is very important for improving the workof artificial intelligence, which forms the content of this project
ONE CO PTY LTD T/A ONE FILLING STATION v SHELL OIL BOTSWANA 2012 2 BLR 436 HC Citation: 2012 2 BLR 436 HC Court: High Court, Lobatse Case No: Misca No 271 of 2011 Judge: Dambe J Judgement Date: 17 August 2012 Counsel: M Kgafela for the applicant.rnT Katse for the respondent. Flynote Contract—Repudiation—Effect of—Other party entitled to accept the repudiation and terminate contract or affirm it—Oil company refusing to supply fuel unless it was paid amount allegedly owed—No provision in agreement that company could leave its equipment on premises until filling station paid money owing. Headnote The applicant applied for an order compelling the respondent to remove from the applicant's business premises all its property within 30 days of the order. The applicant traded as a filling station and, in terms of a written agreement concluded in 2002, the respondent was appointed the sole supplier of fuel to the applicant for onward sale to the public. As a consequence of this agreement the respondent installed all the necessary equipment for a filling station and it supplied fuel until a disagreement arose between the parties over money allegedly owed to the respondent. When the respondent refused to continue supplying fuel the applicant wrote to it demanding that it remove its equipment and giving it a deadline to do so. The respondent refused and brought the present application. Held: (1) The respondent's action in refusing to supply fuel amounted to a repudiatory breach of the contract and under common law the applicant could choose to accept the repudiation and terminate the contract or affirm it. Matador Buildings (Pty) Ltd v Harman 1971 (2) SA 21 (C) applied. (2) In the absence of any provisions in the agreement relied upon for the respondent to only remove its equipment from the premises if paid in full, the application had to be granted. Case Information Cases referred to: In Re: Kweneng Land Board v Molefhe and Another; Kweneng Land Board v Mokgalagadi and Another; Kweneng Land Board v Molefhe and Another [2005] 2 BLR 155 2012 (2) BLR p437 DAMBE J Matador Buildings (Pty) Ltd v Harman 1971 (2) SA 21 (C) Schnehage en 'n Ander v Bezuidenhout 1977 (1) SA 362 (O) Stocznia Gdynia SA v GearbulkHoldings Ltd [2009] EWCA Civ 75; [2010] QB 27; [2009] 3 WLR 677; [2009] 1 Lloyds Rep 461; [2009] BLR 196; [2009] 2 All ER (Comm) 1129; [2009] All ER (D) 134 APPLICATION for an ejectment order. The facts are sufficiently stated in the judgment. M Kgafela for the applicant. T Katse for the respondent. Judgement DAMBE J: The applicant lodged an application through which it sought an order in the following terms: '(1) That the Respondent should remove all its property from the Applicant's premises at plot 54, Kopong within 30 days of the order; (2) In the event that the Respondent fails to comply with the order, a Deputy Sheriff of this court should be authorised to remove Respondent's property from the aforesaid premises, the costs of which shall be borne by the Respondent; (3) That costs of this application be borne by the Respondent; (4) That the Applicant be granted such further and/or alternative relief as the court deems fit.' The respondent opposed this application. In her founding affidavit in support of the application, Anikie Mopipi Korwe, the managing director of the applicant stated that the company trades as petrol filling station at plot 54 Kopong. That the application was essentially for the eviction of the respondent from plot 54 Kopong and for the removal of all items of property belonging to the respondent from the premises. On the history of the matter the applicant stated that in 2002 the applicant and the respondent concluded a written agreement in terms of which the respondent was to be the sole supplier of fuel to the applicant for onward sale to the public. In terms of agreement the respondent was to install underground fuel tanks and pipes to reticulate the fuel to the dispensing machines. The respondent was also to install dispensing machines and a canopy over them. In pursuance of the agreement the respondent fulfilled all the above conditions. The contract was to run until 2017. The applicant averred that she was not in possession of the contract because she lent it to the respondent who had allegedly misplaced its copy. That contract document was never returned to the applicant. The respondent contended that contrary to what the applicant had stated the dispute between them relates to the applicant's indebtedness to the respondent in the sum of P266 232.94 while the applicant claims that amount it owes the respondent was P75 000. It was the respondent's case that the applicant through its letter of 3 March 2010 proposed, that after full payment of the balance due to the respondent, the latter should remove all pumps from the filling station. The 2012 (2) BLR p438 DAMBE J amount owed is however disputed and the respondent alleged that it was in the process of issuing summons against the applicant and had indeed ceased supply of fuel to the applicant. In its replying affidavit the applicant stated that annex AA1 was written as far back as March 2010 and contended that contrary to the respondent's averment that the applicant would pay the outstanding amount before the removal of the tanks, the applicant was not at all indebted to the respondent. That as the respondent was no longer supplying, it should remove all equipment from the applicant's premises for the latter to be assisted by some other companies. The applicant denied ever making a proposal or undertaking that the respondent should remove the tanks after being paid. That the parties had entered into an agreement about provision of equipment and supply of fuel until 2017 is common cause. It is also common cause that none of the parties has a copy of the agreement. Another matter which is not in dispute between the parties concerned soured of relations between them over alleged indebtedness that resulted in the respondent terminating fuel supply of fuel to the applicant's filling station. Also not in dispute was the fact that the respondent had throughout maintained that removal of the equipment would only be effected after settlement of indebtedness. The matter was argued and the applicant contended that the real dispute for determination was whether the respondent was entitled to remain firmly rooted in the premises until what is owed to it has been paid. The applicant submitted that the respondent was not so entitled, but the respondent argued to the contrary that, there was a lease agreement and that tenancy at common law superceded ownership thus the respondent as a tenant had greater right to be in the premises than the applicant. Was there a lease agreement? The pleadings disclose that, there was an agreement between the parties. This was an agreement through which the applicant would run the business of filling station using Shell equipment. Shell was to supply fuel. Though the respondent in its agreement submitted that the agreement in question was lease nowhere in its pleadings is such an allegation made. The respondent is bound by its pleadings and it is not entitled to ask for relief which has not been disclosed in its pleadings. Is the respondent entitled to remain in the premises as long as it has not been paid the alleged amount owed or is the respondent entitled to raise the applicant's indebtedness to it as a defence? The respondent's claim was that it was entitled to remain in the premises so long as it has not been paid. What the applicant seeks is an order directing the respondent to remove its equipment from the premises. This is in effect an application for ejectment from the premises. This application comes after an exchange of correspondence between the parties. Through that correspondence the applicant requested the respondent to remove the equipment. This request was made on more than one occasion as evident from letters of 19 February 2009 (annex FA1) and that of 28 February 2011 (annex FD1). Responding to the letter of 19 February 2009 the respondent communicated without prejudice 2012 (2) BLR p439 DAMBE J that it would be willing to enter into termination provided the applicant signed an acknowledgement of debt over its indebtedness to the respondent. This was the letter of 12 March 2009. Through this letter of 12 March 2009 (exh FB) the respondent's attorney advised that his client is willing to enter into a termination agreement incorporating an acknowledgement of debt of the applicant's trade liability to Shell and method of repayment for purchase of equipment by the applicant and mechanism for removal. Lastly the letter stated that the respondent was having the equipment valued once it is through with that exercise it would then prepare a draft termination agreement. Before dealing with the question for determination I find it appropriate to consider the nature of the application filed. The applicant is seeking an order for ejectment from its premises. An action of this nature may be brought where the applicant is the owner of property and one is in possession of property, through some form of grant the nature of which has not been disclosed. In the case of In Re: Kweneng Land Board v Molefhe and Another; Kweneng Land Board v Mokgalagadi and Another; Kweneng Land Board v Molefhe and Another [2005] 2 BLR 155 dealing with an action for ejectment, Kirby J (as he then was) held at p 158E that: 'An action for ejectment may be based either on ownership or on possession.' In finding for the applicant, the learned judge stated that in that application the action was based on ownership. The next question to consider is whether in an action of this nature a party can raise the applicant's indebtedness as a defence? There is nothing in the pleadings from either party to suggest that the agreement contained a clause which entitled the respondent to raise indebtedness as a defence to a claim of ejectment. The applicant in this case has submitted that they rely on possessory action for their claim for ejectment. In such action there is no need for the applicant to prove title in the property in the form of ownership. The applicant in this case holds no ownership title over the land, but the land belongs to the land board with the respondent having certain rights and interests in the land. Generally speaking a party seeking ejectment can do so in two ways. The first procedure which could be employed is rei vindicatio. Central to this procedure is proof that the applicant is the owner of the property and the defendant is in possession of the property. The second procedure that could be invoked by a party is possessory claim. If a party proceeds in this manner there is no requirement to prove that the party who seeks eviction or ejectment is the owner of the property in respect of which ejectment is sought. As the ownership of the land belongs to the land board, in my opinion, the applicant was right in submitting that its claim for ejectment is based on possessory claim. What the applicant should allege in order to succeed on an action for ejectment based on possessory claim is set out below. Firstly, the party claiming ejectment is required to prove that through an agreement between the parties the respondent had the right to occupy the premises. In this case the applicant has through its founding affidavit made averments to demonstrate that there was an agreement through which the respondent was to install machinery and equipment for purposes of business of a filling station by the applicant. This 2012 (2) BLR p440 DAMBE J assertion was not disputed by the respondent and it was in fact common cause. The admission of the existence of the contract is contained at para 11 of the respondent's answering affidavit. Secondly, it is a requirement that the applicant has to show that the respondent's right of occupation of the property has been validly terminated. The applicant's case on termination is traversed at para 14 of its founding affidavit. This is what the applicant stated: 'It consequently caused its attorney to write a letter to the Respondent dated February 19th 2009 whose copy is annexed hereto marked "FA1" and "FA2" asking to terminate the relationship and to either have the fuel tanks unearthed and removed or sold to the applicant and left underground.' The respondent in its answering affidavit admitted the contents of para 14. Also admitted by the respondent was para 15 of the founding affidavit where the applicant stated that in the letter of 12 March the respondent's attitude was that it was prepared to end the relationship between the parties and to remove its property from the applicant's premises. The above mentioned matters which are undisputed speaks to the requirement of valid termination of the agreement. Though the letter of 19 February was rather conciliatory seeking an amicable settlement to termination the subsequent letter of 28 February 2011 (annex FD1) was definitive in its terms, demanding removal of machinery and equipment forthwith and within the end of that month at the latest. In this case there was repudiatory breach of contract as the respondent acted in such a way that it deprived the applicant of essentially the whole benefit that the parties intended the applicant should obtain from the contract. This constituted repudiatory breach and under common law the applicant could choose to accept repudiation and terminate the contract or affirm it. In the case at hand the applicant exercised its right to terminate the agreement. The repudiatory breach, due to the respondent's failure to supply the fuel has been fully canvassed in the pleadings. Reasonable notice was given to the respondent to remove their machinery. See: Matador Buildings (Pty) Ltd v Harman 1971(2) SA 21 (C). See also: Schnehage en 'n Ander v Bezuidenhout 1977 (1) SA 362 (O). Parties in this case never canvassed in their pleadings that there was a termination provision which formed part of their agreement. However, where there is a contractual clause for termination a party may also rely on its common law rights. The reason for this is that generally courts will presume that the parties have not intended to give up their common law rights unless there is very clear language to that effect. See: Stocznia Gdynia SA v GearbulkHoldings Ltd [2009] EWCA CIV 75. It is common cause that the respondent continues to occupy the property, despite repeated attempts by the applicant to get the respondent to move out of the property. The respondent will only move out of the premises if it has been paid the amount owed. There is no merit in this contention. I say so because there is nowhere in the pleadings where the respondent has claimed that it was the condition of their agreement, that, on termination of the agreement the 2012 (2) BLR p441 DAMBE J respondent will only remove the machinery and equipment only if he has been fully paid. If owed the respondent should have sued to claim outstanding amount. Thus the respondent was right in stating that he would sue for the outstanding amount in one of the correspondences. I find the respondent's assertion that it did not remove the tanks as the relationship between the parties had not been severed to be ill-conceived and without any merit because the applicant gave an ultimatum on removal of the machinery. This defence was disclosed at paras 21, 22, 23, 25, 28 of the respondent's answering affidavit. The respondent concluded by saying that he admits that there was a letter demanding that the respondent remove its property from the premises and its answer to that the respondent insisted that removal can only be effected when it has been paid amounts owed. I have therefore come to the conclusion that the applicant has discharged the onus of proving that it was entitled to cancel the agreement that it did so cancel the agreement and the respondent has no valid reason to resist the claim. In the light of all issues raised above the application succeeds and the following orders are made: 1. The respondent is hereby ordered to remove all its property from the applicant's premises at plot 54, Kopong within 30 days of this order. 2. Cancellation of the agreement by the applicant is hereby confirmed. 3. In the event that the respondent fails to comply with this order, the deputy sheriff of this court be and is hereby authorised to remove the said property from the aforesaid premises at the respondent's expense. 4. Costs of this application shall be borne by the respondent. Application granted. 2012 (2) BLR p442