IN THE SUPREME COURT OF SWAZILAND
HELD AT MBABANE CIVIL APPEAL CASE NO: 24/10
CITATION:  SZSC 1
In the matter between:
ABSA INVESTMENTS (PTY) LTD APPELLANT
ZIDLEKHAYA INVESTMENTS (PTY) LTD RESPONDENT
CORAM: FOXCROFT, JA
DR. TWUM, JA
FOR APPELLANT MR. A.M. LUKHELE
FOR RESPONDENT MR. S. DLAMINI
DELIVERED IN OPEN COURT AT MBABANE THIS ………. DAY OF NOVEMBER 2010.
DR. S. TWUM J.A.
 On 6th January 2010 the Respondent filed a Notice of Motion in the High Court, Mbabane on a certificate of urgency directed at the Appellant for an order in the following terms:
Ejecting the Appellant and all those holding occupation through or under it at Lot 10, Buhleni Shopping Complex, Northern Hhohho.
Payment by the Appellant to the Respondent of damages at the rate of E4, 933.60 per month for unlawful occupation until the Appellant’s ejectment from the premises referred to in prayer (1) above.
Directing the Appellant to pay the Respondent’s costs of the application at attorney and own client scale.
Granting such further and/or alternative relief as this Honourable Court deems fit
 The Motion was supported by a Founding Affidavit of Bright Ndlovu, who described himself as a director of the Respondent (herein) authorized to institute the proceedings for and on behalf of the Respondent.
 It is common cause that both the Appellant and the Respondent are companies duly registered in accordance with the Company Laws of the Kingdom of Swaziland.
 On or about the 7th January 2008, the Respondent offered and the Appellant accepted a written offer to lease the premises known as Lot No. 10, aforesaid, for the purpose of the Appellant’s business of operating a petroleum (filling) station. The term of the proposed lease was one year certain commencing from 1st January 2008 to 31st December 2008. A lease embodying this term and others, including a rental of E3, 933.00 per month, was executed by the parties and a copy was annexed to the Respondent’s Founding Affidavit as annexure “A”.
 Upon the expiry of the lease on 31st December 2008, the Respondent renewed it for a further term of 12 months certain commencing from 1st January 2009 to 31st December 2009 on the same terms and conditions as those contained in the first lease save and except the monthly rental which was increased to E4, 405.00. The Appellant remained in occupation of the leased premises and paid the new rental of E4, 405.00 up to 31st December 2009.
 Meanwhile on 28th September 2009, the Respondent served notice on the Appellant that it would not renew the lease for a further term after 31st December 2009. In reply the Appellant wrote to the Respondent appealing to it to review its intention not to renew the lease. The Respondent’s response was to give instructions to its attorneys to write to the Appellant demanding that the Appellant vacates the premises and hand over possession to the Respondent on the relevant date.
 Notwithstanding its firm decision not to renew the lease, the Appellant failed or willfully refused to vacate the leased premises and give possession to the Respondent. It was on account of the Appellant’s refusal that the Respondent filed the Motion.
 In its reply to the Respondent’s action, the Appellant raised a number of points in limine and also filed answers on the merits. The Appellant attacked the Respondent’s mode of commencement as not permissible or inappropriate under the High Court Rules; it also argued that the Respondent lacked locus standi to bring the action in its own name and that in any event, to the knowledge of the Respondent, there were triable issues of fact which could not be resolved on the papers filed. Additionally, the Appellant joined issue with the Respondent on whether the notice sent to the Appellant by the Respondent’s attorneys constituted effective notice of termination of the lease. It challenged the Respondent’s decision not to renew the lease and denied that it was in unlawful occupation of the leased premises. It claimed that no rentals were owed and in any event it was its intention to make a counterclaim against the Respondent for the sum of E1, 500,000.00 it claimed it had invested on the filling station in the leased premises.
 When the Motion was argued the court ruled that “by reason of matters that were found to be disputes of fact and which raised issues for determination,” it was setting the matter down for viva voce evidence to be adduced. By way of case management, the court granted the Respondent leave to amend its “pleadings” to include a claim for the holding over of the Appellant’s occupation of the premises in lieu of the claim for unlawful occupation by the Appellant. The Appellant was also given leave to plead a counterclaim of E500, 000.00 for improvements it claimed to have effected on the premises.
 At the end of the viva voce evidence, the learned trial judge carefully considered the pleadings and the totality of the evidence led by the two sides. A very comprehensive judgment was then delivered on 24th May 2010. She entered judgment for the Respondent for the ejectment of the Appellant and all those holding occupation through or under it at Lot No. 10, Buhleni Shopping Complex Hhohho District. She also ordered that the Appellant doth pay to the Respondent monies for holding over of its lawful occupation of the premises by way of damages at the rate of E4,933.60 per month for every month the rental remained unpaid from 1st January 2010 to the date of the judgment. She dismissed the Appellant’s counterclaim and awarded the Respondent costs of the action.
 On 25th May 2010, the Appellant (ABSA INVESTMENTS (PROPRIETARY) LTD,) filed an appeal against the whole of the above judgment. The appellant challenged the judgment on apparently, 7 grounds.
The learned Judge a quo erred in referring the matter to oral evidence rather than dismissing Applicant’s application;
The learned Judge a quo erred in finding that the Applicant had a right and/or had proved, on a balance of probabilities, that it has a right to evict the Appellant from the premises;
The learned Judge a quo erred in accepting the evidence of Siphiwe Ndlovu and Bright Ndlovu.
The learned Judge a quo erred in not accepting the evidence of Absalom Ndlovu and Walter Phillip Bennett;
The learned Judge a quo erred in not dismissing Applicant’s application with costs;
The learned Judge a quo erred in dismissing Respondent’s Counter-claim;
The learned Judge a quo erred in fact and in law in holding that the Respondent was entitled to the Order for damages and erred in not determining the amount therefor.
In my view grounds 3, 4 and 5 are sub-sets of ground 2, 1 propose to subsume them under ground 2 and deal with them together.
 Ground 1. In ground 1 the Appellant complained about the fact that the learned trial judge referred the matter for oral evidence to be taken instead of dismissing the Respondent’s application. In my opinion this ground has no merit.
Rule 6 (17) of the High Court Rules provides: “Where an application cannot properly be decided on affidavit, the court may dismiss the application or make such order as to it seems fit with a view to ensuring a just and expeditious decision.” Further, rule 6 (18) states:
“Without prejudice to the generality of sub-rule (17) the court may direct that oral evidence be heard on specified issues with a view to resolving any dispute of fact and to that end may order any deponent to appear personally or grant leave for him or any other person to be subpoenaed to appear and be examined and cross-examined as a witness or it may refer the matter to trial with appropriate directions as to pleadings or definitions of issues, or otherwise.”
 It is quite clear that sub-rules 17 and 18 of rule 6 give the trial judge a discretion. A cursory glance at page 79 of the record shows that discretion was properly exercised by the learned trial judge. It is clear that it was as a result of the tenor of sub-rule 18 quoted above that the Appellant called Walter Bennett, a director of the landlord company, Buzzby Services, to give evidence for the Appellant. Surely the Appellant cannot approbate and reprobate. This ground of appeal is therefore dismissed as unmeritorious.
 As I indicated above, grounds 2, 3, 4 and 5, are in essence, complaining that the learned trial judge wrongfully concluded that on a balance of probabilities, the Respondent proved its case against the Appellant. The gravamen of the Respondent’s case was that it was entitled to evict the Appellant from the leased premises. In coming to the conclusion that the Respondent has proved its case, the learned trial judge considered and evaluated all the evidence – both affidavit and oral. The evidence of Siphiwe Ndlovu and Bright Ndlovu established that the Respondent was a lawful tenant of Buzzby Services and that under its tenancy it was bound to pay a lump sum to its landlord by way of rental. That evidence also established that the Respondent was entitled to sublet the premises to sub-tenants from whom it was entitled to take rentals out of which it would, if there were sufficient rentals, re-imburse itself for the rentals paid to its landlord – Buzzby Services.
 The quintessence of the Appellant’s case was that it had been in the premises as far back as 1993, rent-free until the premises were leased to the Respondent and that the Respondent not being the owner of the premises, could not evict it therefrom. It was clearly a mistake for the Appellant to think so. It was a tenant of the Respondent’s and under its own lease, its occupation of the premises could be terminated by the Respondent refusing to renew it at the end of any term of the lease. Clause 18 of the Lease states:
“At the termination of the Lease, the Lessor (meaning the Respondent) shall be entitled to take over the occupation of the premises without payment to the lessee of the goodwill relating to the business. The right and discretion of renewal of the lease shall, at all times, be vested in the Lessor”. (Emphasis supplied)
 In my view, the Appellant made a serious error of judgment when it thought it could procure the Respondent’s landlord, Buzzby Services, to cajole or bully the Respondent into permitting it to stay in the premises contrary to the wishes of the Respondent. At law, the Respondent’s said landlord could not derogate from the grant it had made to the Respondent. After all, the legal effect of a lease is to give exclusive possession and control of the landlord’s premises to another for an agreed period as long as the agreed rentals are paid and as long as other terms and conditions of the lease are compiled with by the lessee. The evidence of the Appellant’s witness, Walter Bennett, (a director of Buzzby Services), the landlord company, made the position abundantly clear. He confirmed the existence of a ten-year agreement between the Respondent and Buzzby Services and pointed out that under the said agreement, the Respondent had the right to sublet the leased premises without reference to Buzzby Services and it also has a right to evict them. He also made it clear that he had tried to parley between the Appellant and the Respondent with a view to an amicable settlement of their differences. He, however, emphasized that he had no intention of challenging the Respondent in its right to evict the Appellant.
 In my view, it was also an error of judgment on the part of the Appellant to suppose that somehow it could get Buzzby Services to give it a direct lease notwithstanding the ten-year lease agreement existing between Buzzby Services and the Respondent. This error of judgment emboldened the Appellant to resist the Respondent’s decision not to renew its lease to the extent of even challenging its own landlord’s title. I completely agree with the learned trial judge that on the evidence the Respondent was entitled to evict the Appellant. Any other decision would have been perverse.
 The next matter to be dealt with is the Appellant’s counterclaim. The learned trial judge was right in rejecting it as the Appellant provided no proof that any such expenditure had been made on improvements on the filling station. As the learned trial judge found as a fact, no receipts or other documentary evidence were tendered in support of such expenditure. It is a firm rule of evidence that where a party makes an averment in its pleadings and the same is denied, the party who makes the averment does not prove its claim by going into the witness box and repeating those averments on oath in situations where, for example, receipts and other documentary evidence would be available, if the averments were true. In my view, there is no gainsaying the fact that if indeed the Appellant had spent the money on the filling station, appropriate receipts would have been available. Furthermore, as the learned trial judge found, the Appellant could not point to any visible signs of improvement in the filling station. The grant of banking facilities to the Appellant was not unequivocal that the money has been spent on the filling station. This claim was properly rejected. I will also dismiss it.
During the hearing of the appeal, Counsel for the Respondent conceded that all rentals were paid and that there were no arrears. In those circumstances the order for the “payment of damages at the rate of E4,933.60 per month for every month that rental remained unpaid during the period January 1, 2010 till the present time” becomes otiose and is it hereby struck out. Save and except the striking out of the order for payment of damages, the entire appeal fails and it is dismissed.
 Costs: Since the Respondent was substantially successful in the appeal, the Respondent is awarded costs of the appeal as well as costs of the application in the court a quo.
DR. SETH TWUM
JUSTICE OF APPEAL
I agree: J.G. FOXCROFT
JUSTICE OF APPEAL
I agree: A.M. EBRAHIM
JUSTICE OF APPEAL