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

Key Facts

Transaction Type

Issues

• The Appellant challenged the awarding of costs to the Respondent. The Court affirmed that costs typically follow the event, and since the Respondent was the successful party, the award was appropriate unless there was misconduct, which was not demonstrated.
• The Appellant argued that the lease agreement, which was for a period exceeding one year, was null and void due to non-registration under the Lands and Deeds Registry Act. The Court held that this issue was not raised in the lower court and thus cannot be considered on appeal, rendering the Appellant's argument on lease validity moot.
• The Court determined that the Appellant's argument regarding non-registration was not raised during the initial proceedings, and therefore, it could not be entertained on appeal unless in exceptional circumstances. The Court found no such exceptions applied here.

Holdings

• The Court concluded that all three grounds were unsuccessful, leading to the dismissal of the appeal. The judgment of the lower court was upheld, and the Appellant was ordered to pay costs to the Respondent.
• The Court dismissed ground three, which contested the award of costs to the Respondent. It found that costs follow the event, and the Respondent, as the successful litigant, was appropriately awarded costs. This ground was also devoid of merit.
• The Court dismissed grounds one and two, which challenged the enforceability of the lease agreement due to non-registration. The Court held that the Appellant failed to raise the non-registration issue in the lower court, rendering the authorities cited irrelevant. The lease was deemed a monthly tenancy, and these grounds were found to be without merit.

Remedies

Monetary Damages

Legal Principles

• The Court affirmed the general rule that costs follow the event, citing LUCY CHIYUNGI v VISTO CHIYUNGI & ANOR and COSTA TEMBO v HYBRID POULTRY FARM (Z) LTD. It concluded the Respondent was a successful litigant and deserved costs as the appeal lacked merit.
• The Court held that a lease agreement for a period exceeding one year, which was not registered under the Lands and Deeds Registry Act, became a monthly tenancy and was unenforceable. This principle was reinforced by citing ST. JOHN SHIPPING CORPORATION v JOSEPH RANK LTD and KRIGE & ANOR v CHRISTIAN COUNCIL OF ZAMBIA, emphasizing that contracts prohibited by statute are unenforceable regardless of party intentions.

Precedent Name

• ST. JOHN SHIPPING CORPORATION v JOSEPH RANK LTD
• HOLMES LIMITED v BUILDWELL CONSTRUCTION COMPANY LTD
• KRIGE & ANOR v CHRISTIAN COUNCIL OF ZAMBIA
• LUCY CHIYUNGI v VISTO CHIYUNGI & ANOR
• COSTA TEMBO v HYBRID POULTRY FARM (Z) LTD
• MILORAS SABAN (sued as Administrator of the estate of late SAVA SABAN) & ANOR v GORDIC MILLAN
• WILHEIM ROMAN BUCHMAN v ATTORNEY GENERAL
• ROSEMARY BWALYA v ZAMBIA NATIONAL COMMERCIAL BANK
• THE ATTORNEY GENERAL v D. G. MPUNDU
• ANTONIO VENTRIGLIA & ANOR v EASTERN AND SOUTHERN AFRICAN TRADE AND DEVELOPMENT BANK
• TURNKEY PROPERTIES v LUSAKA WEST DEVELOPMENT CO. LTD & ORS
• EXAMINATIONS COUNCIL OF ZAMBIA PENSION TRUST SCHEME REGISTERED TRUSTEES & ANOR v TECLA INVESTMENTS LTD

Key Disputed Contract Clauses

• Clause 4(i)(e) of the tenancy agreement required the Appellant to undertake all repairs and maintenance (excluding major repairs approved by the landlord) and repaint the interior to its original state upon termination. The Appellant failed to fulfill these obligations, which the Respondent claimed as a breach.
• Clause 2 of the tenancy agreement stipulated that the lease could terminate on the last day of any calendar month by either party giving at least three full calendar months' written notice or payment in lieu of notice. The Appellant vacated without providing this notice, leading to a claim for three months' rent in lieu.
• Clause 3 obligated the Appellant to pay a security deposit equivalent to one month's rent (K6,000) at the commencement of the tenancy. The Respondent claimed this deposit, but the Appellant argued it was verbally waived, which the court rejected as the lease agreement did not support this.

Cited Statute

Judge Name

• J. Chashi
• F. M. Lengalenga
• J. Z. Mulongoti

Passage Text

• 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.
• 6.10 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.

Damages / Relief Type