Kibaya v National Pensions Scheme Authority (Appeal 98 of 2005) [2007] ZMSC 154 (30 March 2007)

IN THE SUPREME OF ZAMBIA HOLDEN ATLUS AKA APPEAL NO. 98/2005 (CIVIL JURISDICTION) BETWEEN: PETER KIBAYA (T/A Peter Kibaya and Associates) APPELLANT AND NATIONAL PENSION SCHEME AUTHORITY RESPONDENT Coram: Sakala, CJ., Chibesakunda and Mushabati, JJS on 5th October 2006 and 30th March, 2007. For the Appellant: In person For the Respondent: Mr. F. H. M. Hamakando of Messrs Batoka Chambers JUDCMOT Chibesakunda, JS, delivered the Judgment of the Court Legislation referred to: 1. Landlords and Tenancy (Business Premises) Act. Cap 193. In this appeal, the Appellant, who was the Respondent in the court below, is challenging the High Court decision which was mostly in his favour. The Respondent, by originating summons under Section 5 and 11 of the Landlord and Tenancy (Business Premises Act)(l) applied for an order to terminate Tenancy Agreement between them and the Appellant on grounds that J2 the Appellant was in breach of the agreement in that he, the tenant, had not paid his rentals for a period from 1998 to December 2004. The Respondent therefore prayed that: "(a) He pays to the Applicant the sum of K82, 515,926 plus interest thereon in respect of arrears of rent up to 31st May 2004; (b) The Applicant be paid additional rent as shall accrue up to date of payment and/or repossession oat the rate of K2, 524,485.15 per month; (c) He yields vacant possession of the said property for breach of Tenancy agreement for failing to pay rent for more than four years thereby accumulating totaling K82,515,926 as of 31st May 2004; (d) (e) Further or other reliefs; Costs." Sic In the affidavit in support, they substantiated their claim stating that the Appellant was indebted to them in the sum of K82,515,926.00 in respect of rental arrears, from 1998 to 31st December 2004. In the same affidavit, they deposed that despite several written and verbal reminders, the Appellant had refused to settle the said sum. They also prayed for vacant possession of the said premises. This claim, however, was over taken by events in that subsequent to the commencement of the action, the Respondent sold the property in September 2004 to a third party. The Appellant's case at the High Court was that there was indeed a landlord and tenant relationship between them and the Respondent dating as way back as 1998 but that there was no formal tenancy agreement between them in the period 1998 to December 2003. But in the period between January J3 2004 and December 2004, the parties executed a formal tenancy agreement. The Appellant had occupied the space on the top floor of the premises as well as the ground floors of the Respondent's Nsefu House in Lusaka. Subsequently in April 2002, the Appellant gave up a space on the top floor and only remained with the ground floor. The Appellant further argued that as far as their records were concerned, they had paid all the rentals up to December 2004 and that the Respondent, as a well established institution, should have kept the records and should have produced them to indicate that they had not paid the rentals. They further averred that each time they approached the Respondents to find out the rental arrears, that is when the Respondent responded and gave them what they were supposed to pay as rentals. According to them, there were no rental arrears and as such the claim before the court was baseless. The learned trial Judge on the evidence before her ruled in favour of the Respondent. On the amount of rental arrears computed by the Appellant as owed to the Respondent, in the document, which was produced in court below, in the sum of K52,018,441.00, the Learned trial Judge ruled that the total amount be paid by the Appellant with interest at Bank of Zambia recommended lending rate from 17th May 2004 up to the date of full payment. On the claim for balance of K30,527,485, the learned trial Judge dismissed this claim as having not been proved. She further observed that increments were being communicated to the Appellant retrospectively, instead of being sent to them in advance. The Learned Trail Judge held that to allow the J4 Appellant to recover additional rentals in that period would be inequitable and contrary to the principles of fair play because the Appellant was denied the chances to either object to the increments of the rentals or decide whether to continue the tenancy landlord relationship or to vacant the premises. On the claim by the Respondent that they be paid additional rent, calculated at the higher rate of K2, 524,485.15 per month for the period between January and December, 2004 the rental proposed by the Respondent basing on their own evaluation, the learned trial Judge held that according to the Tenancy Agreement signed between the parties, which was binding, the rate stated was K372,240.00 per month not K2,524,485.15 per month. She held that there was no viable explanation as to why the Respondents sought to be paid at a higher rate of K2,524,485.15 per month. She held that the Tenancy Agreement which the two parties had entered into in January 2004 was the binding contract governing the parties' relationship. Therefore she granted a sum of K3, 350,660.00 for this period of between January and September 2004. She ordered that sum of K3,350,660.00 to attract interest at the Bank of Zambia recommended lending rate from 17th May up to the date of full payment. She also condemned the appellants in costs. It is against this Judgment that the Appellants are appealing. The Appellants advanced three grounds of appeal. These are: 1) That the learned trial Judge erred in law and fact for failing to: J5 a) strike out document 5 in the defendant's bundle of documents b) find that there was no rent agreed upon between the parties from 1998 to 2003 c) consequently find that there was no balance of K28,000,000.00 outstanding as at 25th March 2002 (page J8, 2nd paragraph line 4) 2) That the learned trial Judge erred in law and fact for failing to find that Exhibit "PK 2" on page J8, 2nd paragraph lines 8 represented receipts over the period from 1998 to 2001 and not as arrears. (See also page J3 line 7 and page J6 third paragraph line 5) 3) That the learned trial Judge erred in law and fact for failing to: a) Find that it was the first time that rent was determined and agreed upon by the parties in 2004 b) Strike out documents dated 4th February and 29th March 2004 (see page J8, end paragraph lines 4 and 5) as they were in conflict with the tenancy agreement on agreed monthly. Before us, Mr. Kibaya argued forcefully that justice was not done. He argued that the learned trial Judge should have held that there was no basis for him to pay rentals at all. He argued that there was no agreement between him and the Respondent. He informed the court that he only paid rentals on the basis of invoices sent to him by the Respondent periodically. Furthermore he J6 submitted that even the invoices that were sent to him should have not been the basis for the court to hold that he had an obligation to pay. His other argument was that the Respondent, a Parastatal body an establishment well endowed with good facilities, in particular a well-established legal department, should have had a good system, well documented, to provide full protection to it. He argued that the Respondent should have produced to court documents spelling out all the obligations in this tenancy relationship. In his view therefore, he owed the Respondent nothing, as he had paid them all the rentals due to them. Asked about his acceptance of his indebtedness to the Respondent in rental arrears in the application before the lower court, the Appellant told the court that this, notwithunderstanding, his views were that he did not owe the Respondent any rental arrears and that the court should not put the onus on him to prove that he did not owe them any rental arrears. The onus, according to him to prove that he owed them any money was on the Respondent. He submitted that they should have had entered into a formal agreement with him regulating this Tenancy relationship. He further submitted that the Respondent is a well- established parastatal organization, which should have produced a formal agreement before the court to establish exactly whether or not he owed them any rentals. He went on to argue that the document in which he accepted his indebtedness to the Respondent should not have been the basis on which the learned trial Judge made her decisions. J7 Mr. Hamakando on the other hand supported the lower court's decision and argued that the appeal before us was frivolous and as such had no merit and should be dismissed with costs. We have seriously looked at the arguments raised in this appeal. Our view is that this was a well reasoned out Judgment by the learned trial Judge. We are satisfied that, the learned trial Judge addressed all these issues, which were raised before us. The Appellant's arguments in our view, before us, are totally unfounded. The Appellant was never denied any justice. Even in his own arguments before us he never denied that there was landlord and tenant relationship between him and the Respondent and as a tenant he was legally under an obligation of paying rentals to the landlord for the quiet enjoyment of the property in question. As a tenant, he could not have expected to use the premises of the Respondent gratis in a contractual relationship. We, therefore find no merit in the appeal. We dismiss the appeal. We, however, make no order on costs, looking at the nature of this appeal before us. E. L. Sakala CHIEF JUSTICE L. P. Chibesakunda C. S. Mushabati SUPREME COURT JUDGE SUPREME COURT JUDGE