Umeshkumar Manilal Patel and Anor v Pound Stretcher Zambia Limited (2021/HP/0463) [2022] ZMHC 43 (9 June 2022)

Key Facts

Transaction Type

Issues

• The first issue is whether the Lease Agreement between the plaintiffs and defendant, dated 1st October 2019, is null and void for failing to comply with registration requirements under the Lands and Deeds Registry Act (Cap 185). The defendant argues non-registration renders the agreement unenforceable, citing sections 4 and 6 of the Act and precedents like Krige v Christian Council of Zambia (1975) ZR 152. The plaintiffs concede non-registration but assert enforceability via a periodic tenancy.
• The second issue is whether the plaintiffs' claim for damages arising from alleged breach of lease covenants (repair and yield-up obligations) must be dismissed if the Lease Agreement is deemed void for non-registration. The defendant seeks dismissal under Order 14A of the Rules of the Supreme Court, arguing the claim rests entirely on an unenforceable agreement. The plaintiffs counter that their claim is valid under a periodic tenancy established by possession and rent payments, as recognized in cases like Makanya Tobacco v J&B Estates (2012) Appeal No. 42.

Holdings

• The court dismissed the defendant's application to dispose of the action on a point of law under Order 14A of the Rules of the Supreme Court, finding the issue not suitable for interlocutory determination as it does not resolve the dispute on its merits.
• The court held that the Lease Agreement dated 1st October 2019 is null and void for want of registration at the Registry of Deeds under the Lands and Deeds Registry Act Cap 185.
• Despite the lease agreement's invalidity, the court found that a monthly periodic tenancy was created between the parties through possession and payment of rent (USD 6,500/month) as per the principles established in Makanya Tobacco Company Limited v J&B Estates Limited.

Remedies

• The court awarded costs to the plaintiff, which are to be taxed in default of agreement.
• The court dismissed the defendant's application for an order to dispose of the plaintiff's action on a point of law under Order 14A of the Rules of the Supreme Court.
• Leave to appeal is granted to the defendant.

Legal Principles

Precedent Name

• Chon Jeuk Suk Kim v Kim Jong Kyu v E.J. Austin and Others
• WJ Blakeman Ltd v Associated Hotel Management Services Ltd
• Mega Garment Limited v Mistry Jadva Parbat & Co. (EPZ) Limited
• Josia Tembo and Another v Peter Mukuka Chitambala
• Digitech Computer School Limited v Pamodzi University Limited
• Tecla Investment Limited v Examination Counsel of Zambia
• Clarke v Sodhoni
• Simona Rizzoti v Kenya Way Limited
• Krige and Another v Christian Council of Zambia
• Examination Council of Zambia Pension Trust Scheme v Tecla Investments Limited
• Makanya Tobacco Limited v J&B Estates Limited

Key Disputed Contract Clauses

• Covenant requiring the Defendant to maintain the demised premises and all fixtures in good repair throughout the lease term.
• Covenant obligating the Defendant to return the demised premises and fixtures in good tenantable condition upon lease termination.

Cited Statute

Judge Name

Passage Text

• "Since the lease agreement entered into between the parties on 3rd September, 2009 is null and void for want of registration, none of the covenants under the lease can be enforced. However, the matter does not end here... a yearly periodic tenancy was created between the parties." (Makanya Tobacco Company Limited v J&B Estates Limited, 2015)
• "The principle that a lease for a period exceeding one year shall be invalid unless registered does not exclude the use of the unregistered lease to show the terms of the contract between the parties." (Clarke v Sodhoni, 1963)
• "It is agreed that the lease agreement was not registered as required by Section 4(1) of the Lands and Deeds Registry Act. There can be no dispute either that section 6 of the Act provides for the consequences for failure to register any document that is required to be registered under section 4. Such document shall be null and void... This is well settled law." (Examination Council of Zambia Pension Trust Scheme Registered Trustees and Another v Tecla Investments Limited, 2018)

Damages / Relief Type