Martin Sichilya v Dr. Kapaza Lungu (2024/SD/84) (15 October 2024) – ZambiaLII

IN THE SUBORDINATE COURT OF THE THIRD CLASS 2024/SD/84 FOR THE MBALA DISTRICT REPUBLlC OF 2At-4B1A THE JUDICIARY HOLDEN AT MBALA (Civil Jurisdiction) MAGISTRATE CLASS I\\ P.O. BOX 420101, M3/\l..A BETWEEN MARTIN SICHILYA APPLICANT AND DR. KAPAZA LUNGU RESPONDENT Before: Hon. Deeleslie Mondoka For the Applicant : In person For the Respondent : In person JUDGMENT CASES REFERRED TO: i. RATING VALUATION CONSORTIUM AND D. W. ZYMBO & ASSOCIATES (SUING AS A FIRM) V. THE LUSAKA CITY COUNCIL AND ZAMBIA NATIONAL TENDER BOARD (2004) Z.R. 109; ii. DILWORTH V. COMMISSIONER OF STAMPS (1899) AC 99; iii. EXAMINATION COUNCIL OF ZAMBIA PENSION TRUST SCHEME REGISTERED TRUSTEES AND ANOTHER V. TECLA INVESTMENTS LIMITED, SELECTED JUDGMENT NO. 39 OF 2018; J1 iv. MAKANYA TOBACCO COMPANY LIMITED V J&B ESTATES LIMITED SELECTED JUDGMENT NO. 19 OF 2015; v. WILLIAM JACKS & COMPANY (ZAMBIA) LIMITED V. O’CONNOR (IN HIS CAPACITY AS REGISTRAR OF LANDS & DEEDS) AND CONSTRUCTION & INVESTMENT HOLDINGS LTD (1967) Z.R. 141; vi. HARVEY V. PRATT (1965) 2 ALL ER 786; (1965) 1 W.L.R. 1025; vii. OLIVER INAMBAO SITALI & 16 OTHERS. V. ZAMBIA AIRFORCE. ATTORNEY GENERAL APPEAL NO. 145 OF 2020; viii. CHON JEUK SUK KIM V KIM JONG KYU V E.J. AUSTIN AND OTHERS (2013) EKLR; ix. AL AZIZI GENERAL DEALERS LIMITED V LUSAKA CENTRAL MEAT PROCESSING LIMITED (APPEAL 13 OF 2017); x. MASAUSO ZULU VS AVONDALE HOUSING PROJECT LIMITED (1982) Z.R. 172; xi. AGRO FUEL INVESTMENT LIMITED V. ZAMBIA REVENUE AUTHORITY - SCZ APPEAL NO. 187 OF 2008; xii. ATTORNEY GENERAL V. LASFORD KAYULA AND 18 OTHERS APPEAL NO. 43 OF 2016; xiii. WARREN V. KEEN [1954] 1 QB 15; AND xiv. BREW BROS. LIMITED V. SNAX (ROSS) LIMITED [1970] 1 ALL ER 587. OTHER MATERIALS REFERRED TO: i. THE RENT ACT, CHAPTER 206 OF THE LAWS OF ZAMBIA; ii. WOODFALL, LANDLORD AND TENANT VOL. 1 (27TH EDITION); iii. THE LANDS AND DEEDS REGISTRY ACT, CAP 185; iv. BRYAN A. GAMER (ED.), BLACK'S LAW DICTIONARY, 9TH EDITION, 2009; v. PETER BUTT, LAND LAW 256 (2D ED. 1988); vi. J.D. RIDDALL, INTRODUCTION TO LAND LAW, 4TH EDITION; vii. G. MONAHAN ON ESSENTIAL CONTRACT LAW, 2ND EDITION, CAVINDESH PUBLISHING (AUSTRALIA) PTY LIMITED 2001; viii. CHITTY ON CONTRACTS, VOLUME 1(GENERAL PRINCIPLES) 26TH EDITION, SWEET & MAXWELL, LONDON (1999) BY BEALE H G; ix. LAW OF CONTRACT, 7TH EDITION BY P. RICHARDS, PEARSON LONGMAN, 2006; x. TREITEL ON THE LAW OF CONTRACT, EDWIN PEEL, 13TH EDITION, 2011; xi. HALSBURY’S LAWS OF ENGLAND 4TH EDITION (REISSUE) VOL. 27(1) xii. CHITTY ON CONTRACTS, GENERAL PRINCIPLES, SWEET AND MAXWELL; J2 INTRODUCTION [1] This judgment arises from a claim in which the applicant seeks K9,144.00, representing the cost for maintaining a house (hereinafter “the demised property”) located in Kampompo medium, where the respondent resided as a tenant for a period of two years. The house, the applicant claims, was left in a dilapidated state, and the amount sought includes both labour and material costs, along with any other expenses tied to this suit. [2] At the heart of this dispute is the applicant’s assertion that the respondent was not merely a troublesome tenant, but a veritable nuisance to the neighbours. The respondent’s conduct, the applicant contends, caused considerable disruption to the two other tenants who shared the compound. [3] The present action was initiated on September 2, 2024, by originating notice of motion. And so, we find ourselves here, dissecting the facts and circumstances of yet another landlord-tenant debacle that, predictably, has ended in a courtroom. BACKGROUND FACTS THE APPLICANT’S CASE [4] On the 3rd day of October, in the year 2024, as the atmosphere within the courtroom grew taut, as if the very air conspired in this unfolding drama, the applicant—now called to the fore—stood to face his destiny. With deliberate, measured steps, he advanced toward the stand, where the weight of his trial awaited. A man no longer bound to the trivialities of the world but cast into the abyss of judgment, he took his oath as AW1. His hands clasped before him, firm and unyielding, as if grasping at the very pillars of his fate. The eyes of the courtroom bore down upon him, a multitude of gazes like the silent sea before a tempest. And in that moment, he stood, no longer merely a man, but an adversary in a contest not of brawn, but of sharp and subtle intellect. Here, under J3 the gaze of an indifferent law, the trial commenced—an intricate battle of mind and mettle, where the victor could claim not triumph, but survival. [5] The testimony of AW1 revealed that the he had engaged in the business of leasing properties. AW1 attested that the respondent, along with a companion, took occupancy of the house in question on or about the 3rd of September, 2022, under the agreed condition that a modest rent of K2,000.00 would be paid. With unwavering conviction, AW1 declared that he had expressly informed the respondent and his companion of the following conditions: a. The house they were to inhabit consisted of flats, and they were cautioned not to disrupt the tranquillity of the other tenants. b. The landlord would repair all items that were not in proper condition prior to their move-in, but upon vacating the premises, it would be their responsibility to maintain and repair any damages incurred during their tenancy. [6] Upon the respondent's move-in, he was duly introduced to the individual responsible for addressing any incidents and receiving rental payments, a person well known to the respondent. A thorough inspection of the property was conducted to ensure all was in order. [7] AW1 testified that for a number of months, there were no issues. However, reports soon began to surface regarding disruptive behaviour exhibited by the respondent and his companion. When confronted by AW1, the respondent acknowledged these disturbances and pledged to rectify his conduct. [8] Matters took a turn on August 1st, 2024, when a stern altercation erupted between the respondent and his companion, the noise of which reverberated through the premises. AW1, having reached the limit of his tolerance for the respondent's antics, issued a verbal eviction notice. Yet, this notice fell on deaf ears, as the behaviour continued unabated. Consequently, on August 26th, 2024, J4 AW1 reduced the eviction notice to writing marked “MS2”, setting September 1st, 2024, as the effective date. [9] On the first of September, AW1 and the respondent conducted a joint inspection of the property. AW1 attested that the house was in a state of disrepair and could no longer be considered tenantable. [10] In the cross-examination, the respondent vehemently challenged the tenancy agreement itself, casting doubt upon its very existence. With a certain air of defiance, he claimed that the photographs presented by AW1 as evidence were, in fact, of an entirely different house—one wholly unrelated to the dwelling in which he had resided. [11] The respondent went on to deny, with firm conviction, that the house had fallen into any state of disrepair, refuting the notion that it had been left dilapidated. His words painted a stark contrast to the claims against him. [12] As the re-examination proceeded, it was a quiet affair, with no significant revelations to sway the tide. The stage was set, tension thick in the air, as the matter rested upon the finer details yet to be revealed. [13] To bolster AW1’s account, the applicant called forth Collins Chakufyali, a young man of 29 years, a businessman by trade, who assumed the stand as AW2. His testimony, though unadorned, carried a certain bluntness, a stark simplicity that cut through the air like the wind over an open sea—straightforward, unembellished, and unyielding. There was no flourish, no excess in his words, yet in their very plainness, they seemed to strike with the force of a steady, deliberate hand, guiding us toward some inevitable conclusion. [14] AW2 deponed that he had been entrusted with the oversight of the flats, including the one occupied by the respondent. He asserted that the respondent had not left the property in a state fit for habitation. [15] With a measured tone, AW2 further elaborated that it was his responsibility to ensure each flat was in tenantable condition before it was offered to potential J5 renters. Only after his thorough inspection would the property be advertised. And, he insisted, the flat in question had been in good repair before the respondent’s arrival. [16] In the midst of cross-examination, the respondent presented a spirited defence, asserting that the majority of the repairs he was being asked to undertake stemmed from nothing more than the inevitable “wear and tear” that accompanies life in a house over a span of more than 23 months. He insisted that the claim for repairs was, in his view, entirely unfounded. Furthermore, he argued that the estimated costs for the necessary works on the demised property were excessive, a point he made with considerable conviction. [17] As the proceedings shifted to re-examination, AW2 maintained his position with unwavering clarity. He asserted that a house ought to be returned in good repair before a tenant vacates it, emphasizing the existence of a mutual agreement between the parties prior to the respondent’s occupancy. The tension in the courtroom was palpable, with the stakes high and the outcome hanging in the balance. THE RESPONDENT’S CASE [18] On the 10th of October, 2024, a palpable shift occurred within the courtroom’s confines as the respondent, a medical doctor by profession, made his deliberate ascent to the witness stand. Sworn in as RW1, he stood there—imposing, dignified—his very bearing steeped in the solemn gravitas of his calling. His presence alone commanded the attention of all assembled, as though he were about to unearth some profound truth from the depths of the matter at hand. With a quiet yet unassailable authority, he began his testimony, the weight of his words laden with the complexities of his profession and the tangled narrative he had come to untangle. The room grew still, as though the air itself held its breath, awaiting the unfolding revelations that would stir the waters of this already tempestuous dispute. J6 [19] RW1 deponed that upon entering the demised property, no written agreement had been established, leaving an unsettling ambiguity regarding the procedures to follow when a tenant vacated the premises, particularly concerning any necessary renovations. [20] He recounted that he had cohabited with his colleague for nearly a year before departing for Lusaka, residing in the property until the 1st of September, 2024. On that date, he received an eviction notice, which, according to RW1, was predicated on the assertion that the house was in a dilapidated state. [21] Before his departure, AW1 had come to inspect the premises, armed with a camera to capture the condition of the property. However, RW1 had refused him entry into the bedroom, a decision that was met with some consternation, yet AW1 managed to photograph the interior regardless. RW1 expressed his frustration, lamenting that AW1 demanded he replace an array of items, which he deemed excessively exaggerated. [22] Moreover, RW1 argued that he had not been provided with a key to the main sitting room door, yet was still expected to bear the burden of its replacement. When advised by AW1 to keep the main glass door locked for aesthetic purposes while securing only the grill door, he found the instruction unsatisfactory. [23] In a further challenge, RW1 insisted that the photographs being presented as evidence depicted a different house entirely, not the demised property he had occupied, as there were two other identical flats within the same complex. Ultimately, he concluded that the majority of the repairs being demanded of him were merely the result of “wear and tear,” and it would be fundamentally unjust to compel him to address even those. [24] During cross-examination, the facts came out plain and clear: RW1 had never, at any point, informed AW1 about any damage or disrepair in the premises. This omission was as glaring as it was inexcusable. AW1, undeterred, hammered home his point with characteristic directness, arguing that no rational landlord— J7 anywhere in the world—would ever tell a tenant not to use a door simply because there was only one key available. A tenant’s access to a door, AW1 maintained, is not a matter of negotiation, especially when the key was theirs to use in the first place. [25] With no significant points advanced during re-examination, the respondent’s case quietly drew to a close, leaving the courtroom with an air of anticipation, as the story neared its final chapter. UNDISPUTED FACTS [26] Upon review of the evidence presented, I find the following facts to be undisputed: (i) that AW1 rented out the demised property to RW1 for the modest duration of two years; and (ii) that RW1, at the inception of the tenancy, was residing with a colleague. These points, clear and unchallenged, form the bedrock of this case. The parties may quibble over the finer details, but on these fundamental facts, there is no room for doubt. DISPUTED FACTS [27] Upon thoroughly examining the facts, I find the following points to be in sharp dispute: (i) whether RW1 left the demised property in a dilapidated state upon vacating the premises; (ii) whether AW1 had informed RW1 of the obligation to repair or replace any damage to the property at the conclusion of the tenancy; (iii) whether a valid tenancy agreement even existed between AW1 and RW1; and (iv) whether the claim for K9,144.00 in repairs, maintenance, and labour is, by its very nature, excessive. These contested issues are the crux of the matter and will require careful scrutiny. ISSUES FOR DETERMINATION [28] The following issues are central and demand resolution: (i) whether the respondent caused any damage to the premises during the tenancy period, and J8 (ii) whether a valid tenancy agreement existed between the applicant and the respondent with respect to the demised property in question. And if yes, (iii) whether the respondent is thus liable for the herein claim of K9, 144.00. These are the pivotal questions upon which the outcome of this case turns, and they must be addressed with the precision and clarity the law requires. ANALYSIS OF THE LAW AND FACTS [29] As a preliminary matter, I turn my attention to Section 13(a) of the Rent Act, Chapter 206 of the Laws of Zambia, being the section pursuant to which the applicant commenced this matter, which section states as follows: (1) No order for the recovery of possession of any premises or for the ejectment of a tenant therefrom shall be made unless … “some rent lawfully due from the tenant has not been paid, or some other obligation of the tenancy (whether under a contract of tenancy or under this Act) so far as the same is consistent with the provisions of this Act, has been broken or not performed…” [emphasis supplied] [30] To commence my analysis and lend substantive weight to the matter at hand, it is essential that I dissect the pivotal issue: did a valid tenancy agreement exist between the applicant and the respondent concerning the demised property in question? The answer is straightforward. If the tenant took possession of the premises with the landlord's consent and rent was both paid and accepted, the law presumes the existence of a tenancy—be it monthly or yearly. This presumption is not mere conjecture; it is a foundational principle rooted in the fabric of property law. Thus, the circumstances compel us to recognize that such a tenancy, born of consent and conduct, operates with all the legal significance of a formally executed agreement1. 1 In Rating Valuation Consortium and D. W. Zymbo & Associates (Suing as a Firm) v. The Lusaka City Council and Zambia National Tender Board (2004) Z.R. 109, the court elucidated a fundamental principle: it is within the purview J9 [31] Section 2 of the Rent Act defines a lease as: … “includes any agreement, whether written or verbal and howsoever described, whereunder the tenant obtains the right to possession of the premises for a consideration in money or money's worth, and whether or not such agreement includes an option to purchase the said premises or the building of which the said premises form part; and the grantor and grantee of any such right to possession shall, for the purposes of this Act, be deemed to be a landlord and tenant respectively.”[emphasis supplied] [32] Further the Rent Act defines “tenant”, in relation to the premises, means the person entitled, whether exclusively or in common with others, to possession thereof, and shall include- (a) any person deemed to be a tenant by virtue of the meaning ascribed in this subsection to the express on “lease”. [33] To provide necessary context, let us consider Dilworth v. Commissioner of Stamps (1899) AC 99. In this regard, I draw upon the esteemed authority of Maxwell in his Interpretation of Statutes, 12th Edition, at page 270, which instructs us that the term “include” serves a pivotal role: it is employed to broaden the scope of the words or phrases found within the statute. When this term is utilized, it mandates that the associated words or phrases be interpreted as encompassing not merely the obvious or natural meanings we might attribute to them, but also a wider array of possibilities. Thus, we recognize that legislative language, especially when punctuated by terms like “include,” is a deliberate choice aimed at capturing a broader spectrum of meaning, compelling us to interpret statutes with an eye toward their expansive intent. [emphasis supplied] [34] Alas and alack—the lease agreement in question was not registered as mandated by section 4(1) of the Lands and Deeds Registry Act. Allow me to of the judiciary to ascertain the clear intention of the parties to forge a legally binding agreement. This intention is not merely an abstraction; it is revealed through an examination of the correspondence and the conduct of the parties in their totality. Thus, the court underscores that the essence of a contract is not confined to formalities but is instead illuminated by the actions and communications that reflect the parties' true mutual assent. J10 illuminate the relevant statutory text: Section 4(1) of the Lands and Deeds Registry Act, Cap 185 of the Laws of Zambia, states unequivocally: “Every document purporting to grant, convey, or transfer land, or any interest therein, or to constitute a lease or agreement for lease, or permit occupation of land for a term exceeding one year, or to create any charge upon land—be it a mortgage or otherwise—or that serves as evidence of satisfaction of any mortgage or charge, along with all bills of sale of personal property where the grantor remains in apparent possession, must be registered within the specified timeframe in the Registry or in an eligible District Registry, unless such documents have already been registered ….”[emphasis supplied] [35] Thus, the statute lays bare its demands, imposing a clear and unequivocal obligation: registration is not merely a formality but a prerequisite for the enforcement of such documents. This legislative requirement, as plain as the day, cannot be disregarded. [36] Section 6 of the Lands and Deeds Registry Act goes further to provide inter alia: “Any document required to be registered as aforesaid and not registered within the time specified in the last preceding section shall be null and void ...” [emphasis supplied] [37] In the case of Examination Council of Zambia Pension Trust Scheme Registered Trustees and Another v. Tecla Investments Limited, Selected Judgment No. 39 of 2018, the Supreme Court found itself tasked with a pivotal question: Is a lease agreement exceeding one year, which has not been registered in accordance with section 4 of the Lands and Deeds Registry Act, valid or a mere nullity? The Court’s pronouncement was clear and categorical: “It is agreed that the lease agreement was not registered as mandated by Section 4(1) of the Lands and Deeds Registry Act. There can be no dispute that section 6 of the Act delineates the consequences of failing to register any document required under section 4. Such a document shall be null and void. In Krige and Another v. Christian Council of Zambia and Makanya Tobacco Company Limited v. J&B Estates Limited, we grappled J11 with similar issues and firmly held that the non-registration of a document necessitating registration renders it void for all purposes whatsoever. This is settled law.” [emphasis supplied] [38] Thus, the Supreme Court affirms a principle that echoes through the halls of legal understanding: failure to adhere to registration requirements does not merely create a technicality; it obliterates the very validity of the agreement. The law does not permit a lease to exist in the ether of non-compliance. It is either registered and valid, or it is a phantom—void and without effect. [39] In re Makanya Tobacco Company Limited v J&B Estates Limited Selected Judgment No. 19 of 2015, the Supreme Court quoted with approval a passage from Megarry's Manual of the Law of Real Property at pages 365 to 366 as follows: “... A lease which did not satisfy the above requirements was void at law and passed no legal estate. However, although at law the lease was ineffective to create any tenancy, a tenancy might arise independently of the lease; for if the tenant took possession with the landlord's consent, a tenancy at will arose, and as soon as rent was paid and accepted, the tenancy at will was converted into a yearly or other periodic tenancy, depending on the way in which the rent was paid.” [emphasis supplied] [40] In any event, the agreement between AW1 and RW1 collapses under scrutiny as a valid lease agreement, a point vividly illustrated by the case of William Jacks & Company (Zambia) Limited v. O’Connor (in his capacity as Registrar of Lands & Deeds) and Construction & Investment Holdings Ltd (1967) Z.R. 141. In this seminal decision, the Court of Appeal clearly articulated the five indispensable elements necessary for a valid lease agreement: (i) parties, (ii) property, (iii) length of term, (iv) rent, and—most critically—(v) a commencement date for the term. [41] Thus, it is settled beyond dispute that for there to be a valid agreement for a lease, not only must the parties, the property, the length of the term, and the rent be delineated, but also the date of commencement must be explicitly J12 determined. The absence of the hereinbefore specifications renders the contract non-existent—a mere shadow in the realm of legal enforceability. [42] To clarify from the outset, let it be unequivocally stated that a lease agreement is, in every practical sense, a contract governed by the foundational principles of contract law. This assertion is bolstered by the esteemed author J.D. Riddall, who, in his erudite work: Introduction to Land Law, 4th edition, opine at page 225: “As a contract, a lease is subject to the principles of contract law.” [emphasis supplied] [43] Thus, I find myself anchored firmly in the realm of contract jurisprudence, where the nuances of lease agreements cannot escape the rigorous standards that govern all contracts. [44] It is imperative, then, that we establish a clear definition of what constitutes a contract. As elucidated by the esteemed author of Essential Contract Law, a contract is defined as follows: “An agreement giving rise to obligations which are enforced or recognized by law. The factor which distinguishes contractual from other legal obligations is that they are based on the agreement of the contracting parties. A legally binding agreement made between two or more persons by which rights are acquired by one or more to acts or forbearances on the part of the other or other. (Emphasis supplied) [45] Further, the same authors at page 27 go on to provide that: “A valid contract is a contract that the law will enforce and creates legal rights and obligations. A contract valid ab initio (from the beginning) contains all the three essential elements of formation: Agreement (offer and acceptance). Intention (to be bound by the agreement). Consideration (for example, the promise to pay for goods or services received”. (Emphasis supplied) J13 [46] What issues arise concerning the performance of a contract? To illuminate this inquiry, I turn to the venerable authors of Chitty on Contracts, who articulate the general rule regarding the performance of a binding contract as follows: “The general rule is that a party to a contract must perform exactly what he undertook to do. When an issue arises as to whether performance is sufficient, the Court must construe the contract in order to ascertain the nature of the obligation (which is a question of law); the next question is to see whether the actual performance measures up to that obligation (which is a question of ‘mixed fact and law in that the Court decides whether the facts of the actual performance satisfy the standard prescribed by the contractual provisions defining the obligation”. (Emphasis supplied) [47] From the evidence presented, it is abundantly clear that the applicant (AW1) extended an offer for the demised property to the respondent (RW1) through a verbal agreement. This arrangement persisted for over 23 months, during which RW1 resided in the property and dutifully remitted rent on a monthly basis, until the moment he received a notice to quit. The conduct of the parties unmistakably reveals the existence of a verbal contract, a conclusion that is inescapable from the circumstances. [48] It is well established in the law of contracts that verbal agreements, when substantiated by evidence, carry the same weight and enforceability as their written counterparts2. This principle underscores the notion that the formality of a contract, be it verbal or written, does not diminish its legal potency if the requisite proof is forthcoming. Thus, I roundly affirm that verbal contracts stand firm in the eyes of the law, commanding respect and enforcement in equal measure to their written brethren. [49] It therefore matters less that the agreement between AW1 and RW1 was bereft of the thoroughgoing and intricate trimmings that make for an exhaustive written 2 Oliver Inambao Sitali & 16 Others. v. Zambia Airforce. Attorney General Appeal No. 145 Of 2020 J14 contract outfitted with boilerplates and other legal nuances, but it is to itself an agreement nonetheless. [50] The lease agreement executed by the parties on 3rd September 2022, being null and void for failure to meet the statutory requirement of registration, is of no force or effect. Accordingly, none of its covenants can be enforced. But—and this is critical—the story does not conclude here. The facts are undisputed: the respondent, RW1, took possession of the premises and paid a miserly sum of K2,000 per month as rent. Not for a fleeting moment, mind you, but for over 23 months, from 3rd September 2022 to 1st September 2024. And more importantly, the applicant, AW1, pocketed this rent without protest. The inevitable consequence? A monthly periodic tenancy was established between the parties. [51] Thus, while the lease itself collapses under the weight of its own unenforceability for want of registration, a periodic tenancy nonetheless arose. RW1's occupation of the premises, with the express consent of AW1, coupled with the regular payment—and acceptance—of K2,000 in rent, forms a contractual arrangement that cannot be so easily shrugged off. This is the law, and so it stands. [52] An unregistered lease, where statute mandates registration, does not, of course, confer any legal or equitable estate—no one disputes that. But the agreement remains enforceable as a contract between the parties. The absence of registration, while depriving the lease of its standing as a legal estate, does not strip it of its contractual force. The document, though unenforceable as a conveyance, can still be invoked to demonstrate the terms of the bargain struck between the parties. Non-registration does not pull the rug out from under the contract itself; it merely alters the legal framework within which it operates3. 3 Chon Jeuk Suk Kim v Kim Jong Kyu v E.J. Austin and Others (2013) Eklr J15 DETERMINATION [53] I have taken deliberate and careful stock of the facts and the law at issue here, and I am persuaded beyond doubt that this case firmly plants itself within the realm of contract law, while drawing its governance from the Rent Act, Chapter 206 of the Laws of Zambia. [54] I am not in murky waters regarding the timeline here—the applicant and respondent entered into a rental agreement on the 3rd of September, 2022. This is confirmed in no uncertain terms by the document labelled “MS1.” The respondent (RW1), for all intents and purposes, paid rent in advance for two months, covering September and October. And by the 8th of November, 2022, had further remitted a sum of K6,000.00, being rent for the months of November, 2022 through January, 2023. The facts are as clear as daylight. [55] Now, let us not be led astray by any loose talk of a “lease agreement” for there was no lease agreement per se—what I have here, instead, is a classical situation of a periodic tenancy. It is well-settled in law that when a tenancy agreement does not expressly state its duration, the conduct of the parties themselves is the best indicator of intent. The respondent, as evidenced by payment of rent at regular intervals, has left no doubt that this arrangement was one of a monthto-month tenancy. The rentals were paid on a monthly basis, creating a periodic tenancy, plain and simple. [56] The learned authors of Halsbury’s Laws of England4 sum up periodic tenancies in terms that leave little room for ambiguity. They declare... … “A weekly or other periodic tenancy is a tenancy by the week or the period, and does not expire without notice at the end of the first week or period or at the end of each succeeding week or period, there being not a reletting at the beginning of every week or period but a springing interest which arises and which is only determined by a proper notice to 4 Halsbury’s Laws of England 4th Edition (reissue) Vol. 27(1) J16 quit. A weekly or other periodic tenancy arises either by express agreement or presumption of law.” [57] And: … “(A weekly or other periodic tenancy is determinable by notice to quit, which in the absence of special stipulations, should be given so as to expire at the end of any complete period of the tenancy and should ... Be equal to the length of the period, that is ... In a monthly tenancy, a month’s notice.” [emphasis supplied] [58] In the House of Lords case of Barret & Others v Morgan [1874-80] All ER Rep 388, the manner in which periodic tenancies are determined was explained by Lord Millet as follows: … “A lease or tenancy for a fixed term comes to an end by effluxion of time on the date fixed for its determination. A periodic tenancy comes to an end on the expiry of a notice to quit served by the landlord on the tenant or by the tenant on the landlord. As Lord Hoffmann explained in Newton Housing Trust v Alsulaimen [1998] 4 All ER 1 at 4-5, [1999] 1 AC 313 at 317 it also comes to an end by effluxion of time. In each case the tenancy is determined in accordance with its terms.” By granting and accepting a periodic tenancy with provision, express or implied, for its determination by notice to quit, the parties have agreed at the outset on the manner of its termination. The parties and their successors in title, including those who derive title under them, are bound by their agreement.” [emphasis supplied] [59] As the venerable Halsbury’s Laws of England remind us at paragraph 190, a notice to quit need not conform to any rigid or ceremonial formality. It requires but one thing: proper service, whether upon the tenant or the landlord. In the case of a tenancy created by word of mouth—yes, by mere spoken agreement— the notice itself may be delivered in like manner, orally. The law, in its wisdom, J17 values substance over ceremony in these matters, as long as the essential notice has been duly communicated5. [60] From the testimony and evidence laid before us, it is unerringly clear that the applicant, a figure steeped in practicality, extended the offer of the property in question to the respondent, a tacit understanding born of a verbal accord. This delicate exchange of words, perhaps casual yet laden with significance, set in motion a tenancy that spanned the quiet rhythm of eighteen months. During this time, the respondent, in dutiful regularity, made monthly remittances of rent, his presence within the abode uncontested. It was not until that fateful day, the 1st of August, 2024, that a breath of change swept in—a verbal notice to quit, later made flesh by pen on the 26th of August, a fact to which no one now objects. Their conduct, those small gestures and unspoken agreements, renders the conclusion unavoidable: a verbal contract, fragile yet binding, had woven itself into the fabric of their dealings. [61] Now, having firmly established the existence of this contract between the applicant and the respondent, I must ask, with perhaps a hint of trepidation, whether the respondent, in his tenure within those four walls, brought any harm to the premises—leaving behind not merely his rent but also traces of damage. [62] for context and in trying to answer the herein inquiry, section 24 of the Rent Act Chapter 206 of the Laws of Zambia, provides: “In the absence of any provisions to the contrary in the contract of tenancy, for the purposes of this Act it shall be deemed to be the obligation of the landlord of any premises to maintain and keep the premises in a state of good repair and in a condition suitable for human habitation; and it shall be deemed to be the obligation of the tenant of any premises to maintain the premises in the same state as that in which the premises were at the commencement of the tenancy, fair wear and 5 Al Azizi General Dealers Limited v Lusaka Central Meat Processing Limited (Appeal 13 of 2017) J18 tear, damage arising from irresistible force and the repairs for which the landlord is liable excepted.” [emphasis supplied] [63] from the foregoing it is safe to settle that, In the absence of any explicit contractual stipulations to the contrary, one must understand the duties imposed upon both the landlord and tenant in the context of the tenancy. [64] First, let it be noted that the landlord, by virtue of this Act, bears an unequivocal responsibility: to maintain the premises in a condition that is not only presentable but also fit for human habitation. This obligation persists unless the terms of the lease expressly indicate otherwise—thus preventing any confusion regarding the landlord’s duty to provide a habitable environment. [65] Conversely, the tenant, that esteemed occupant, is tasked with a duty of care, which compels them to preserve the premises in the same state as at the inception of the lease—subject, of course, to the accepted realities of fair wear and tear, the unyielding hand of nature, and those repairs that fall squarely on the shoulders of the landlord. In other words, while the tenant may enjoy the benefits of occupancy, they must also shoulder the responsibility of maintaining the property, ensuring it does not fall into disrepair beyond the ordinary bounds of use. [66] In the Agro Fuel Investment Limited v. Zambia Revenue Authority - SCZ Appeal No. 187 of 2008 case the Supreme Court stated as follows: … “According to decided cases, the duty of the Courts in the interpretation of statutes is to give effect to the intention of the Legislature. And the primary rule of interpretation of statutes is that the meaning of any enactment is to be found in the literal and plain meaning of the words used, unless this would result in absurdity, in which case the Court's authority to cure the absurdity is limited.” [emphasis supplied] [67] In re Attorney General v. Lasford Kayula and 18 Others Appeal No. 43 of 2016, it was opined inter alia: J19 … “That, in interpreting a statute, what is cardinal for the court is to discern the intention of the originators or framers of that statute: (ii)The primary principle is that the court should look to the natural and ordinary meaning of the words used in the text: (iii) That, other principles of interpretation should only be called in aid where there is ambiguity, or where such literal interpretation will lead to absurdity or give rise to an unreasonable and unjust situation.” [emphasis supplied] [68] Upon thorough consideration, I am firmly persuaded that the application of the literal rule of interpretation to this section will not, in any sense, result in absurdity. The text stands as it is, clear and unambiguous, and to stray from its plain meaning would be to undermine the very essence of my judicial duty. To interpret otherwise would invite chaos into the legal framework, which is the antithesis of justice. Let me not conflate the straightforward with the convoluted; the law must speak for itself, and I, as magistrate, am bound to listen. [69] To clarify, the term “absurdity,” as defined in Black's Law Dictionary, 9th edition, is as follows: “the state or quality of being grossly unreasonable; an interpretation that leads to an unconscionable result especially one that the parties or the drafters could not have intended and probably never considered6.” [emphasis supplied] [70] Given these circumstances, the absence of a formal or meticulously crafted tenancy agreement, as asserted by RW1, is of no consequence. Nor does it matter that the agreement in question was verbal, for Section 2 of the Rent Act expressly accommodates such agreements. The law recognizes that the substance of an agreement can—transcend the form it takes. [71] The Supreme Court in ZIMCO Properties LTD v Hickey Studios Ltd and Marryat And Scott (Z) LTD. (1988 - 1989) Z.R. 181 (S.C.) sympathized with the case of Liverpool City Council v. Irwin [1977] AC 239, the court astutely recognized an 6 Bryan A. Gamer (Ed.), Black's Law Dictionary, 9th Edition, 2009, J20 implicit obligation resting upon the landlord: the duty to uphold the common areas of the property, notwithstanding the absence of an explicit provision in the lease. This duty springs forth from a fundamental expectation of tenants, who are not simply occupants but rather individuals entitled to a modicum of decency in their living arrangements. It is reasonable for tenants to presume that the shared spaces within their dwelling will be maintained in a state of good repair. [72] In tandem, the ruling in Warren v. Keen [1954] 1 QB 15 serves as a necessary counterbalance, establishing that tenants are not free to disregard their responsibilities. They bear a duty to conduct themselves in a “tenant-like manner,” which encompasses the ordinary, everyday maintenance that is part and parcel of renting a home. However, let it be clear: this obligation does not extend to the burden of major repairs or the consequences of mere wear and tear. [73] To shore up the herein construction assigned to section 24 of the Rent Act, the case of Brew Bros. Limited v. Snax (Ross) Limited [1970] 1 All Er 587 provides: “A tenant who enters into a covenant to put a building in repair is under a duty to do all such repairs except those which will change the character of the building. Whether or not the work required comes within the covenant is a question of degree. The cases show that where the tenant is not liable under a repairing covenant to eradicate a defect, he will not be liable for disrepair caused by that defect. A covenant to put and keep in repair does not affect the essential principle that a tenant is not obliged to do work to the premises which will make them different in character from those demised. The character of premises can be altered by altering a part of them or by doing substantial work of rebuilding in a case where they are so out of repair at the date of demise that such work is needed. In the latter case whether or not the resulting building is different in character from that demised is a pure question of degree.” [emphasis supplied] J21 [74] Thus, I find that the implied covenant of repair serves to establish a judicious equilibrium between the landlord’s duty to maintain habitability and the tenant’s obligation to care for the premises, even in the absence of explicit terms within the tenancy. In this delicate dance of rights and responsibilities, both parties must hold to their respective roles, ensuring that the sanctity of the rental agreement is preserved. [75] Perhaps the more pertinent inquiry would be: what is “wear and tear”? Black’s Law 9th edition defines “wear and tear” as: … “Deterioration caused by ordinary use; the depreciation of property resulting from its reasonable use …” [76] The authors of Black’s Law further provide that: the tenant is not liable for normal wear and tear to the leased premises. The same is also referred to as “fair wear and fair tear”, or “natural wear and tear” [emphasis supplied] [77] By logical extension—'fair wear' is the deterioration caused by the reasonable use of the premises; 'fair tear' is the deterioration caused by the ordinary operation of natural forces. A tenant's repairing covenant commonly exempts the tenant from the obligation to repair damage characterizable as 'fair wear and tear' (sometimes called 'reasonable wear and tear'). [78] In the absence of such an exempting provision, a covenant to repair requires the repairing of damage characterizable as fair wear and tear. Where a covenant to repair exempts the tenant from liability for 'fair wear and tear', he is not responsible for deterioration or dilapidation caused by 'the reasonable use of the house by the tenant and the ordinary operation of natural forces7. [79] It is self-evident that, over time, furniture, fixtures, and fittings in any dwelling will inevitably deteriorate. This is the natural course of things—caused not by neglect or abuse, but by the normal, everyday use of the property. Such wear and tear, a term of art in itself, cannot be imputed to tenants as a liability. Only when there 7 Peter Butt, Land Law 256 (2d ed. 1988) J22 is actual damage—true damage—arising from negligence or mischief, should the tenants be held to account for the cost of repair or replacement. [80] Furthermore, common sense (which is always in shorter supply than its advocates suggest) tells us that the longer a tenancy lasts, the more wear and tear will accumulate. It is hardly surprising, then, that tenants in long-term tenancies may expect—indeed, are entitled to expect—some measure of renovation from the landlord, especially after the passage of several years. To deny this would be to ignore the simple facts of life: things age, things break down, and landlords, like tenants, must face the reality of upkeep in the natural order of time. [81] It is plain, then, that I cannot, in good conscience, saddle the respondent with the burden of paying for wear and tear. Such ordinary depreciation is a fact of life, and to foist the costs of time itself onto the respondent would be unjust. I find the argument that much of the damage falls under this inevitable process entirely persuasive. Holding the respondent liable for the effects of wear and tear, natural and expected, would be fundamentally unfair. Nevertheless, the respondent is not blameless. He permitted damage to accumulate during his tenancy, and that cannot go unnoticed. [82] I am equally troubled by the respondent’s attitude. While he raises valid points concerning damage not of his making, his lack of diligence is glaring. A tenant who neglects to report issues as they arise, yet seeks absolution from any liability, cannot escape responsibility. The record reveals an almost flippant disregard for the condition of the property—a cavalier approach that undermines his defence. [83] Let it be clear: the tenant is not tasked with undertaking substantial repairs to the property. That burden does not fall on him. However, the tenant is obligated to maintain the premises in a tenantable condition—a basic and straightforward duty. And here, the respondent has failed. His neglect of this minimal responsibility leaves him in breach, notwithstanding the allowances for wear and tear. J23 [84] What now persists in the mind, a shadowy spectre of uncertainty, is whether the applicant has indeed proved his claim of K9,144.00—a sum for the repairs and maintenance of the damages allegedly left upon the demised premises by the respondent. For it is a fundamental tenet of law, as old as the hills and etched into the conscience of justice, that he who asserts must also prove8. A careful examination of the evidence laid before the court, along with the photographs collectively marked as “MS3,” intended to capture the damage upon the house, finds itself clouded in dispute. The respondent, with a practiced hand, contests these images, claiming they belong to another flat, for the flats, in their architectural sameness, mirror one another. Despite this contention, a visit was conducted on the 3rd day of August—an endeavour in pursuit of fairness, a pilgrimage to the truth, conducted under the gaze of Section 48 of the Subordinate Court Act. This provision, like a lantern in the fog, grants the court power to inspect, to see with its own eyes the tangible fragments of reality that may guide it to a just resolution. [85] Fortunately for this court, the applicant has spared us the need to conjecture blindly, to rely upon guesses softened by the imagination. He has furnished us with the document marked “MS4,” a quotation, which meticulously lists the costs of the items damaged, lending a clarity that rises above the fog of dispute and vague recollection. [86] And so, when the matter is considered in its entirety, when every piece is set in place and viewed in the round, it becomes clear that the applicant has, to a large extent, substantiated his claim. Yet, I must also bow to the inevitable passage of time, to the silent erosion of all things—the wear, the tear, the small cracks that life itself leaves behind. To award the applicant the full sum of K9,144.00, as he so claims, would be to ignore the natural course of things. I cannot, without straying from the path of fairness, grant him the whole of what he seeks. 8 Masauso Zulu vs Avondale Housing Project Limited (1982) Z.R. 172. J24 CONCLUSION [87] For the avoidance of doubt, and to ensure that justice is served in accordance with the rule of law, I hereby ORDER that the respondent (RW1) shall remit to the applicant (AW1) the sum of K5,500.00—a modest sum, yes, but one entirely appropriate under the circumstances. This amount, together with all incidental costs arising from this suit, shall be paid in full no later than the 31st day of December, 2024. And let it be clear: the respondent’s obligation is not a suggestion, but a command—failure to comply will have consequences. So, ordered. [88] Either party has the right to appeal to the High Court for Zambia within 30 days from the date hereof. JUDGEMENT DELIVERED AT MBALA ON 15TH OCTOBER, 2024 _____________________________________________ DEELESLIE MONDOKA HON. MAGISTRATE J25