Lopez Guillermo Vega v Winston Nyanga [2019] ZMCA 362 (23 October 2019)

Z t L rca C-'~ IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE (Civil Jurisdiction) APPEAL NQ 107 OF 2019 IN THE MATTER OF: (cid:9) THE RENT ACT, CHAPTER 206 OF THE LAWS OF ZAMBIA IN THE MATTER OF: BREACH OF TENANCY AGREEMENT RELATING TO FLAT B OF PREMISES SITUATE ON PLOT N2 6466, JAMBO DRIVE, RIVERSIDE, KITWE BETWEEN: Ufr LOPEZ GUILLERMO VEGA APPELLANT AND WINSTON NYANGA RESPONDENT CORAM: Chashi, Mulongoti and Lengalenga, JJA 16th On October, 2019 and October, 2019. For the Appellant: (cid:9) In person For the Respondent: Mr. J. Sinkala - Messrs Freddie & Company JUDGMENT LENGALENGA, JA delivered the Judgment of the Court (cid:9) ii Cases referred to: 1. HOLMES LIMITED v BUILDWELL CONSTRUCTION COMPANY LTD (1973) ZR 97 2. TURNKEY PROPERTIES v LUSAKA WEST DEVELOPMENT CO. LTD & ORS (1984) ZR 105 (SC) 3. THE ATTORNEY GENERAL v D. G. MPUNDU (1984) ZR 8 (SC) 4. ST. JOHN SHIPPING CORPORATION v JOSEPH RANK LTD (1956) 3 ALL E R 683 S. KRIGE & ANOR v CHRISTIAN COUNCIL OF ZAMBIA (1975) ZR 152 6. EXAMINATIONS COUNCIL OF ZAMBIA PENSION TRUST SCHEME REGISTERED TRUSTEES & ANOR v TECLA INVESTMENTS LTD - SELECTED JUDGMENT N9 39 OF 2018 (APPEAL N2 127 OF 2015) 7. ROSEMARY BWALYA v ZAMBIA NATIONAL COMMERCIAL BANK (2005) 8. ANTONIO VENTRIGLIA & ANOR v EASTERN AND SOUTHERN AFRICAN TRADE AND DEVELOPMENT BANK - SCZ JUDGMENT N2 13 OF 2010 9. MILORAS SABAN (sued as Administrator of the estate of late SAVA SABAN) & ANOR v GORDIC MILLAN (2008) ZR 233 10. LUCY CHIYUNGI v VISTO CHIYUNGI & ANOR (2013) 2 ZR 11. COSTA TEMBO v HYBRID POULTRY FARM (Z) LTD (2003) ZR 12. WILHElM ROMAN BUCHMAN v ATTORNEY GENERAL (1993 - 94) ZR 131 Legislation referred to: 1. THE RENT ACT, CHAPTER 206 OF THE LAWS OF ZAMBIA 2. THE LANDS AND REGISTRY ACT, CHAPTER 185 OF THE LAWS OF ZAMBIA J2 Other works & materials referred to: 1. WOODFALL'S LAW OF LANDLORD AND TENANT, 28th Edition (Sweet & Maxwell) 1.0 INTRODUCTION 1.1 This is an appeal against Hon Mrs. Justice B. G. Shonga's judgment delivered on 291h March, 2018 in the High Court. 2.0 BACKGROUND TO THE APPEAL 2.1 The background to this appeal is that the Respondent herein on 5th March, 2018 commenced an action by way of originating notice of motion in the High Court against the Appellant herein, claiming damages for breach of contract. The amount claimed was K18 000.00 being payment of three months rentals in lieu of notice, and K6 000.00 being payment of security deposit including costs. The originating notice of motion was supported by an affidavit that was sworn by the Respondent herein. He deposed therein that on 16th June, 2017 he entered into a tenancy agreement with the Appellant for the lease of Flat B of premises situate on Plot NP 6466, of Jambo Drive, Riverside, Kitwe. He exhibited a copy of the tenancy J3 agreement as "WN1." According to the Respondent's averment under clause 3 of the said tenancy agreement, the parties thereto, agreed on monthly rent of K6 000.00 tax exclusive, payable three months in advance. An initial payment of K6 000.00 was also agreed on as security deposit. 2.2 It was the Respondent's further averment that the Appellant did not pay the security deposit and that on 1St March, 2018, he vacated the said Flat B without giving any notice or paying the agreed three months rent in lieu of notice. The Respondent had attested to the fact that under clause 2 of the tenancy agreement, it was agreed that the said agreement could "terminate on the last day of any calendar month by either party giving to the other at least three full calendar months' notice in writing or payment in lieu of notice." 2.3 It was the Respondent's further averment that under clause 4(i)(e) of the said agreement, the Appellant had agreed to undertake all repairs and maintenance other than the major repairs previously approved by the Landlord, including repairs to or replacement in case of damage to the fixtures, fittings and J4 supplied furnishings; and upon termination of the tenancy, to re- paint the interior of the building and place it in a similar state of repair as that in which it was at commencement of the tenancy. 2.4 According to the Respondent's final averment, the Appellant did not fulfill his obligations under clause 4(i)(e) of the tenancy agreement at the time he vacated the flat. 2.5 That was the evidence upon which the Respondent's claim for damages for breach of contract was premised. 2.6 Upon our perusal of the record of appeal, we noticed that the Appellant's affidavit in opposition to the originating notice of motion is not contained therein. We, however, noted that the learned trial judge makes reference to it in her judgment. 2.7 She noted that the Appellant conceded that he occupied the Respondent's property from 16th June, 2017 to 1st March, 2018 when he vacated the premises due to the Respondent's failure to provide twenty-four hours security and to attend to the leaking roof and blocked sewer. He averred therein that the Respondent had verbally waived the payment of the security deposit and had also undertaken to provide twenty-four hours security and the is services of a gardener at the demised premises. The Appellant further averred that between September and October, 2017, the security guards who had been guarding the premises withdrew their services on allegations of non-payment of undisclosed sums of money by the Respondent and that he ended up expending his personal money on the services of security guards. 2.8 According to the learned trial judge's observation, in the Respondent's affidavit in reply to the affidavit in opposition, he denied having either waived the requirement for a security deposit or having agreed to provide twenty-four hours security services. 2.9 The learned trial judge further noted that the Appellant herein, in his arguments contended that the Respondent had breached the oral agreement to provide security guards and that the lack of security and leaking roof had prompted him to abruptly vacate the premises. 2.10 On the issue of the breach of an oral agreement by the Respondent, she called in aid the case of HOLMES LIMITED v BUILDWELL CONSTRUCTION COMPANY LTD' where it was held that where the parties have embodied the terms of their J6 agreement in a written document, the ground rule is that extrinsic evidence is not admissible to vary, subtract from or contradict the terms of the written contract. 2.11 She observed that the lease agreement between the parties did not contain any stipulation requiring the Respondent to provide security services to the Appellant. She, therefore, opined that the alleged term was extrinsic to the agreement and must be excluded. Consequently she found that the non-provision of security services by the Respondent could not be deemed to be a breach of the lease agreement. 2.12 In trying to determine whether or not the Respondent was entitled to payment of three months' rent in lieu of notice claimed, the learned trial judge examined clause 2 of the lease agreement that was exhibited as "WN1" before her in the Court below. She found that the agreement provided for payment of three months' rent in lieu of notice where such notice was not given. 2.13 She observed from the affidavit evidence that it was not disputed that the Appellant vacated the Respondent's premises without giving the requisite three months' notice and she found that the J7 Respondent was therefore entitled to payment of the three months' rent in lieu of notice. She, accordingly, ordered the Appellant to pay the Respondent the sum of K18 000.00, being the amount for three months rent in lieu of notice. 2.14 On the second issue of security deposit, the learned trial judge found that clause 3 of the lease agreement obligated the Appellant to pay security deposit equivalent to one month's rent together with the three months rent at the commencement of the tenancy. She further noted that clause 4(a) obligated the Respondent to return the said security deposit at the termination of the lease agreement provided that the property was in good and reparable condition. She observed that if the security deposit had been paid, it would have acted as a buffer for potential breach in relation to maintenance of the flat. 2.15 She was of the view that since the security deposit was not paid by the Appellant and not claimed by the Respondent, and considering that the nature of the security deposit was to provide upfront security, that it was illogical for the Respondent to claim it after the lease agreement had ended. J8 2.16 She found that the Respondent had not demonstrated that the Appellant damaged any fittings on or failed to maintain the property as undertaken and that in the absence of such evidence, the claim for payment of security deposit was unsustainable. She, accordingly, refused to grant the relief sought. 2.17 With regard to the last relief sought for damages for breach of contract, she called in aid WOODFALL'S LAW OF LANDLORD AND TENANT 28th Edition (Sweet & Maxwell) where the learned authors state that damages for breach of a lease are recoverable under the general law of contract. She found that that erudition is consistent with the Supreme Court's pronouncement in the case of TURNKEY PROPERTIES v LUSAKA WEST DEVELOPMENT CO. LTD & ORS2 that damages are the universal remedy for breaches of contract. (cid:9) Having established that there was a breach of contract, and that damages were an appropriate relief for breach of contract, she opined that the issue was one of the measure of damages. J9 2.18 To determine the measure of damages she relied on the case of THE ATTORNEY GENERAL v D. G. MPUNDU3 where the Supreme Court referred to the measure of damages as: "That sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in, if he had not sustained the wrong for which he is now getting his compensation or reparation." 2.19 In relation to the present case, the learned trial judge found that the sum of money that would place the Respondent in the same position as he would have been if the Appellant had complied with the lease agreement, by exercising his option to terminate, would be three months rentals in lieu of notice as she earlier directed. She, therefore, declined to make an additional award of damages. 2.20 She, finally, directed that the judgment sum of K18 000.00 shall be paid with interest thereon at the average short term deposit rate per annum prevailing from 15t March, 2018 to the date of judgment and thereafter at the average commercial bank lending rate until final payment. 2.21 The Respondent was also awarded costs, to be taxed in default of agreement. Jio 3.0 APPELLANT'S GROUNDS OF APPEAL 3.1 Dissatisfied with the judgment of Hon Mrs. Justice B. G. Shonga, the Appellant now appeals against the said judgment on the following grounds: 1. The learned judge in the Court below erred in law and in fact in enforcing a covenant of the lease between the Appellant and the Respondent when there was evidence on record that the lease was for a period of more than a year and there was no evidence to support that the lease was registered under the Lands and Deeds Registry Act. 2. The learned judge in the Court below erred in not holding that a lease in excess of one year if not registered is null and void and consequently none of its covenants can be enforced for the lease is null and void. 3. That the Court erred in awarding costs to the Respondent in the light of the above grounds. 4.0 APPELLANT'S ARGUMENTS IN SUPPORT OF APPEAL 4.1 (cid:9) The Appellant's heads of argument were filed into court on behalf of the Appellant on 27th June, 2019 and Counsel for the Appellant relied on them. 4.2 Counsel for the Appellant argued in support of ground one that the learned trial judge erred in finding in favour of the Respondent and (cid:9) ill awarding him costs. He submitted that the lease agreement under which the Respondent sought to enforce his rights was for a period in excess of one year. He further submitted that since it was not registered at the Ministry of Lands, it was null and void and consequently none of its covenants can be enforced. To fortify his argument, he relied on sections 4(1) and 6 of the Lands and Deeds Registry Act, Chapter 185 of the Laws of Zambia which provide that: "4(1) Every document purporting to grant, convey or transfer land or an interest in land, or to be a lease or agreement for lease or permit of occupation of land for a longer term than one year, or to create any charge upon land, whether by way of mortgage or otherwise or which evidences the satisfaction of any mortgage or charge, and all bills of sale of personal property whereof the grantor remains in apparent possession, unless already registered pursuant to the provisions of "The North-Eastern Rhodesia Lands and Deeds Registration Regulations, 1905" or "The North- Western Rhodesia Lands and Deeds Registry Proclamation, 1910," must be registered within the times hereinafter specified in the registry or in a District Registry, if eligible for registration in such a District Registry Provided that if a document creating a floating charge upon land has been registered under the provisions of section ninety-nine of the Companies Act or section thirty-two of the Co- operative Societies Act, it need not be registered under the provisions of this part unless and until such charge has crystalised or become fixed." J12 4.3 Section 6 of the Act provides that: "6. Any document required to be registered as aforesaid and not registered within the specified time in the last preceding section shall be null and void (cid:9) 4.4 It was, therefore, contended on behalf of the Appellant, that the tenancy agreement between the Appellant and the Respondent is null and void for want of registration at the Lands and Deeds Registry as it was a tenancy for a period of two years. Reliance was placed on the case of ST. JOHN SHIPPING CORPORATION v JOSEPH RANK LTD where it was held that: "The Court will not enforce a contract which is expressly or impliedly prohibited by statute. If a contract is of this class it does not matter what the intention of the parties is, if the statute prohibits the contract, it is unenforceable whether the parties meant to break the law or not." 4.5 Counsel for the Appellant further relied on the case of KRIGE & ANOR v CHRISTIAN COUNCIL OF ZAMBIA5 where it was held that: "The effect of non-registration of a document that is required to be registered is that it is void for all purposes whatsoever." J13 4.6 He also relied on the recent case of EXAMINATIONS COUNCIL OF ZAMBIA PENSION TRUST SCHEME REGISTERED TRUSTEES & ANOR v TECLA INVESTMENTS LTD where it was held that: "Therefore, the subject lease agreement was void for lack of registration, notwithstanding that the minds of the parties met to execute the lease or the parties had intended to comply with the law when they signed the lease. Without registration which was a condition precedent to its validity, the judge ought not to have 11th of deemed the lease to have commenced on the 11th of May, 2011 or May, 2006 and terminated on the granted any of the remedies sought by the Respondent which were anchored on the validity of the lease." 4.7 It was, therefore, submitted that the judgment passed in this case was premised on an unenforceable contract that is prohibited by law and that consequently none of the remedies sought by the Respondent should have been granted. 4.8 It was finally submitted that in view of the foregoing, the appeal should be allowed to succeed. 5.0 RESPONDENT'S ARGUMENTS IN OPPOSITION TO THE APPEAL 5.1 The Respondent's heads of argument were filed into court on 6th August, 2019 and the Respondent relied on them in opposing the appeal. J14 5.2 Counsel for the Respondent in arguing ground one, submitted that the learned trial judge did not err in finding in favour of the Respondent and awarding him costs. 5.3 (cid:9) He argued that the issue of registration of the lease at the Ministry of Lands in accordance with section 4(1) of the Lands and Deeds Registry Act was not raised by the Appellant in his pleadings in the Court below or at trial and that as such it cannot be the subject of this appeal. 5.4 In fortifying his argument, he relied on the case of ROSEMARY BWALYA v ZAMBIA NATIONAL COMMERCIAL BANK where the Supreme Court observed and held that: "We have carefully considered the arguments advanced in respect of the first ground of appeal, from the outset, we would like to make plain that the question of whether or not there was negligence on the part of the defendant and/or its lawyers, is irrelevant to this appeal. This is because the current proceedings are not founded in an action for negligence and it never arose in the High Court. (cid:9) In this regard, the issue of negligence did not fall within the purview of the matters which the High Court was called to determine." (cid:9) J15 5.5 Further reliance was placed on the case of ANTONIO VENTRIGLIA & ANOR v EASTERN AND SOUTHERN AFRICAN TRADE AND DEVELOPMENT BANK8 where the Supreme Court held inter a/ia that: "We agree that, that principle of law has been laid down in a plethora of authorities by this Court that in order not to ambush the other party, only issues that were pleaded and raised in the Court below can be raised in this Court as this is a Court of record. Only in very exceptional cases is this Court obliged to receive fresh evidence. But that statement on issues not raised before the lower court is not cast iron. We have held that issues which were not pleaded but which were nevertheless raised in the Court below, without any objection from the other side, cannot be ignored and the Court has an obligation to consider such issues." 5.6 This Court's attention was drawn to the record for it to note that the issues raised by the Appellant in this appeal were never raised at any point in the Court below. It was submitted that had the said issues been raised and no objection offered by the Respondent, then this Court would have exercised its discretion under the exception to entertain the said issues. 5.7 To fortify his argument, Counsel for the Respondent relied on the case of MILORAS SABAN (being sued as Administrator of the estate of the late SAVO SABAN) MACHINIST ENGINEERING LTD v GORDIC MILLAN9 where the Supreme Court held inter a//a that: "When an issue was not raised in the Court below, it is not competent for any party to raise it on appeal." 5.8 It was submitted that in the present case, the issue of registration of the lease agreement did not arise in the Court below and that as such it did not fall within the purview of the matters the learned trial judge was called to determine. It was further submitted that, therefore, this appeal is misconceived and ought to be dismissed. 5.9 With regard to ground three, it was submitted that the Court below did not err in awarding costs to the Respondent. Reliance was placed on the case of LUCY CHIYUNGI v VISTO CHIYUNGI & ANOR10 where it was held that: Alk (cid:9) it is trite law that costs are always in the discretion of the Court, and usually follow the event." 5.10 Further reliance was placed on the case of COSTA TEMBO v HYBRID POULTRY FARM (Z) LTD11 in which the Supreme Court had earlier held that although the Court has a discretion in the award J17 of costs, as a general rule costs follow the event and that a successful litigant will get costs unless the Court orders otherwise for very good reasons. 5.11 It was submitted that based on the cited cases, it was within the discretion of the Court below to award costs to the Respondent in light of the fact that he was a successful litigant and that there was no reason advanced for the Court not to award costs. 5.12 It was finally submitted that this Court finds for the Respondent as the appeal is misconceived and lacks merit and that it be dismissed with costs. 6.0 CONSIDERATION OF GROUNDS OF APPEAL AND RESPECTIVE ARGUMENTS AND DECISION OF THIS COURT 6.1 We have considered the grounds of appeal, respective arguments, authorities, evidence on record and judgment appealed against. 6.2 The Appellant advanced three grounds of appeal but we consider grounds one and two to be dealing with the same issue of non- registration of a lease agreement that was in excess of twelve months as clause 2 of the tenancy agreement referred to an initial J18 tenancy of two years with the option to extend for a further term. We shall therefore address grounds one and two together. 6.3 We agree with Counsel for the Appellant that the said lease agreement ought to have been registered in accordance with section 4(1) of the Lands and Deeds Registry Act. However, the fact that it was not registered entailed that it became a monthly tenancy thereby rendering the authorities cited by Counsel for the Appellant irrelevant to this case. 6.4 Furthermore, as Counsel for the Respondent rightly submitted, the issue of non-registration of the lease agreement was not raised in the Court below. Had it being raised, the Respondent would probably have adduced evidence to show whether it was registered or not. As such, the Court below would also have had an opportunity to address the issue and pronounce itself upon it. 6.5 In the case of WILHElM ROMAN BUCHMAN v ATTORNEY GENERAL 12, the Supreme Court held that: "A matter that is not raised in the Court below cannot be raised before a higher court as a ground of appeal." - (cid:9) Jig 6.6 Similarly, in this case, the Appellant cannot be allowed to raise the issue of non-registration which he had an opportunity to raise but he did not. Besides that, he was well aware that the tenancy was for two years with an option to renew and that it was not registered. 6.7 (cid:9) The Supreme Court has in a plethora of cases held that a matter not raised in the Court below cannot be raised on appeal except in exceptional cases as was stated in the ANTONIO VENTRIGLIA case cited by Counsel for the Respondent. 6.8 (cid:9) Therefore, for the reasons advanced we find grounds one and two to be devoid of merit and we dismiss them. 6.9 We turn to ground three which faults the Court below for awarding costs to the Respondent. It is trite that costs are awarded at the discretion of the court and that they follow the event. The general rule is that a successful litigant will be awarded costs unless the Court orders otherwise or the successful litigant is found to be guilty of some misconduct in the matter. The cases cited by Counsel for the Respondent are instructive on the issue of costs, therefore, we shall not belabour the point. We find that ground three is also devoid of merit and we also dismiss it. (cid:9) (cid:9) J20 6.10 All three grounds being unsuccessful, the net effect is that the appeal fails and it is, accordingly, dismissed with costs, same to be taxed in default of agreement. J. CHASHI COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE F. M. LENGALENGA COURT OF APPEAL JUDGE