Ondangwa Fish and Chips CC trading as Eagles Pizza and Flamingo Grill has lodged a case with the High Court in which they are demanding N$1.8 million from Wernhill Park mall for shutting their store down in 2021 in what they describe as ‘breach of lease agreement.”
In court papers seen by Business Express, Eagles Pizza highlights that during or about September 2021, the Wernhill Park deprived the Eagles Pizza access to the leased premises when it locked their leased premises (Shop 09) and failed and/or refused to open or return the keys of the leased premises.
“The defendant (Wernhill Park) therefore has denied the plaintiff (Eagles Pizza) undisturbed occupation, use and enjoyment of the leased premises. The said denial of access to the leased premises to the plaintiff by the defendant persists to current date.
“The said denial to the leased premises by the defendant amounts to material breach of the lease agreement in that the lease agreement between the parties is still valid and operational and only terminates on 31 December 2022. No specific order for eviction has been sought or granted by a competent court in favour of the Defendant against the Plaintiff and no notice of cancellation of the lease agreement was ever served on the Plaintiff by the Defendant,” claims Eagles Pizza in the court papers.
THE AGREEMENT
In the claim, Eagles Pizza notes that on or about October 2019 and at Windhoek, Eagles Pizza duly represented by Ananias Hanyendaula Nghidengwa and Sevelus Nakashole, entered into a lease agreement with Wernhill Park, duly represented by Broll and List Property Management (Namibia) (Pty) Limited, for the letting of shop No. 09 Wernhill Park Shopping Centre.
“The express, material, and/or implied relevant terms of the said lease agreement were that the Defendant would let the leased premises to the Plaintiff for a period of three (3) years commencing from 01 January 2020 and ending 31 December 2022. Furthermore, they were that the Defendant would give undisturbed occupation, use and enjoyment of the leased premises to the Plaintiff for the duration of the lease, that the Plaintiff would pay a monthly rental amount to the Defendant for the letting of the leased premises. The Defendant complied with the lease agreement in that it availed the leased premises to the Plaintiff for letting and that the Plaintiff complied with the lease agreement in that the Plaintiff made rental payments to the Defendant as such rental payments became due, owing, and payable,” reads the claim in part.
CLAIM
Eagles Pizza further alleges that it generated average monthly revenue of N$265 000.00 (Two Hundred and Sixty-Five Thousand Namibian Dollars) from the business operations it conducted on the leased premises.
As a result of the said denial of access to the leased premises by Wernhill Park, Eagles Pizza claims that it has suffered patrimonial damages in the loss of monthly revenue generated from leasing the premises as from September 2021 to current date (being seven (7) months at the time of filing) totalling to an amount of N$1 855 000.00 calculated on Eagles Pizza’s average monthly revenue of N$265,000.00.
“Notwithstanding due and proper demand, alternatively these summons constituting demand, the Defendant has failed, and/or neglected and/or refused to rectify the foresaid breach and to pay the foresaid amount to the Plaintiff,” the claim reads.
Further to this, Eagles Pizza highlights that when the premise was locked it had movable property that they demand be released. These include one cold room, two complete extraction units, one tilt pan, one double fridge, one customer counters, four menu displays, four shelves, two double bowl sink’s, one fat trap, two gas canisters, one gas cage and two big signage.
“On or about September 2021, the Defendant unlawfully deprived the Plaintiff of her possession in that the Defendant locked the leased premises and failed and/or refused to open or return the keys of the leased premises to the Plaintiff.
“Notwithstanding due and proper demand, alternatively these summons constituting demand, the Defendant has failed, and/or neglected and/or refused to unlock the leased premises and grant access to the Plaintiff to the movable equipment,” further reads the claim.
RELIEF SOUGHT
In essence, Eagles Pizza is seeking relief that Wernhill Park avails them undisturbed occupation, use and enjoyment of the leased premises from date of the court order until 31 December 2022 subject to the lease agreement.
Apart from this, they seek payment in the amount of N$1 855 000.00 and interest a tempore morae calculated on the fore stated amount at the rate of 20% per annum from date of judgement to date of final payment. Further, Eagles Pizza seeks that Wernhill Park’s possession of the leased premises and the movable equipment therein be restored while the premise is unlocked and keys released to Eagles Pizza.
Costs of suit as well as further and/or alternative relief are the other things that Eagles Pizza prays for.
Wernhill Park has since filed their intention to defend the summons.