Zambia: High Court
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RTF formatMWAISENI PROPERTIES LTD (1983) Z.R. 40 (H.C.)
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Flynote
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Land law - Land (Conversion of Title's) Act - Presidential consent - Mandatory requirement for - Effects of non-compliance. Landlord and Tenant - Lease - Contract for - Legal position of. Landlord and Tenant - Lease - Failure to Execute - Failure to come to court with clean hands - Effect of. Civil Procedure - Remedy - Injunction - Equitable and discretionary nature of - Availability. |
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Headnote
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The plaintiff
sought an injunction to restrain the defendant from hindrance,
molestation and interruption of the plaintiff's
peaceful and quiet
enjoyment of its occupancy of the demised premises during the term
of tenancy or until further notice.
The premises were demised
under a contract to lease which was neither executed, nor carried
the requisite Presidential consent.
The action arose out of the
defendant's effective re-entry and possession of the premises upon
the plaintiff falling into
several months rent arrears. It was
contended for the defendant that the plaintiff p41
could not
succeed since they were seeking discretionary and equitable
remedy available only where one comes to court with
clean hands. Held:
Cases cited: (1) William Jacks and Co. v O'Connor (1967) Z.R. 110.
(2) Thomson v Park
[1944] All E.R 477. Legislation referred to: Land (Conversion of Title's) Act. No. 20 of 1975 s.13 (1) (2).
Landlord and Tenant (Business
Premises) Act, Cap. 440 ss.1 (1) (b) 5.
For the defendant: Musonda, Legal Services Corporation. |
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Judgment
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KAKAD,J.:
The plaintiff
(Hina Furnishing Lusaka Limited) applies for an injunction against
the defendant (Mwaiseni Properties Limited)
restraining the
defendant from hindrance molestation and or interruption of the
plaintiff's peaceful and quiet enjoyment
of the plaintiff's
occupance of the demised premises known as First Floor, Indeco
House, Sapele Road, Lusaka, (hereinafter
referred to as
the"Premises") during the term of
tenancy or until further
order. From the
affidavit in support and in opposition of the application the
following facts are common cause:
p42
In consequence
of the above events the plaintiff on 30-3-83 issued a writ against
the defendant seeking inter alia
a declaration, damages and injunction as claimed in the writ. On
the same day the plaintiff applied for an injunction, which
is now
for consideration before this Court. Mr Hamir, the
learned counsel for the plaintiff arguing the application for
injunction submitted that the defendant had interfered
with the
tenancy of the plaintiff and in the plaintiff's business by
preventing the customers from entering the premises
by closing
down the premises which was in lawful occupation of the plaintiff.
He claimed that the damages caused and continued
to be caused as a
result would not be adequately compensated by liquidated damages.
Mr Hamir contended that the plaintiff
was by terms of the
agreement entitled to quiet and peaceful enjoyment of the premises
and therefore to an injunction order.
He claimed that the
defendant's reliance on lease in justification of re-entry and
repossession of the premises was irrelevant
because the lease has
not been executed. He contended that the plaintiff's tenancy is a
protected tenancy under Landlord
and Tenant (Business Premises)
Act, Cap. 440. He claimed
that the plaintiff had been in occupation of the premises for a
period of over six months and therefore the defendant had
no legal
right to evict the p43
plaintiff,
unless in compliance with the provisions of the Act, Cap. 440.
According to him the statutory rights of forfeiture
did not arise
in this case because the arrears of rent due from the plaintiff
was only for three months. He claimed that
rights of forfeiture
and re-entry would only arise when rent due was in arrears of six
months or over and where there were
no goods to distrain. He
claimed that a right of re-entry could only arise when the said
right was specifically agreed between
the parties and on the terms
agreed. According to him the right of re-entry could not be
executed if waived by landlord.
He submitted that the defendant
in this case had waived the right of forfeiture and re-entry by
negotiating to settle the
arrears due from the plaintiff. He
contended that the defendant, assuming the terms of the unexecuted
lease were applicable,
could not have re-entered without giving 21
days' notice as provided in the unexecuted lease. He submitted
that 7 days' time
to settle the arrears of rent; due from the
plaintiff was totally unreasonable and unjust. Referring to
Sections 5 and 11
(i) (b) of the Landlord and Tenant (Business
Premises) Act, Cap. 440, the learned Counsel claimed that in the
absence of
an executed lease, the defendant had no right to
forfeit and re-enter. He urged this Court to apply the principles
of balance
of convenience. Mr Musonda,
the learned counsel for the respondent submitted that the remedy
claimed by the plaintiff was an equitable one
and was in the
discretion of the Court. He claimed that he who goes to equity
must go with clean hands. He contended that
in this case the
plaintiff must establish that he is entitled to the right he is
seeking. He claimed that the defendant
entitled to enjoy the
terms of the agreement as much as the plaintiff wishes to claim.
According to him the plaintiff cannot
come to the Court and claim
injunction when he has failed to clear the arrears of rent. He
submitted that the Landlord and
Tenant (Business Premises) Act,
Cap. 440, did not apply in this case because that Act applies to
leases which are executed.
He claimed that right of re-entry is an
implied covenant in every tenancy agreement. According to him to
grant an injunction
would operate unfairly to the defendant. The learned counsel for the plaintiff contends that the plaintiff, at the time evicted, was and is as today protected tenant under the provisions of the Landlord and Tenant (Business Premises) Act, Cap. 440, and that the defendant could not have terminated the plaintiff's tenancy or occupation by eviction unless as provided under s.5 of the Act, Cap. 440.
p44
However, since
15th August, 1975, under the provisions of s.13 of the Land
(Conversion of Titles) Act, 1975, (hereinafter
referred to as Act
20 of 1975, every person is mandatorily restricted from
sub-dividing and alienation of land, which includes
sub-letting,
without prior consent, in writing, of the President. Under the
provision of s.13 (2) of Act 20 of 1975, the President in granting
his consent may impose such terms and conditions
as he may think
fit. Such terms and conditions shall be binding on all persons and
shall not be questioned in any court or
tribunal. In this case neither party has exhibited the written consent by the President consenting the leasing of the premises as agreed between the parties. The defendant has exhibited an unexecuted lease. It appears to me that the lease remains unexecuted because the written consent as required under s.13 (1) of Act 20 of 1975 has so far not been granted. Under the provisions of s. 13 (1) of Act 20 of 1975, the defendant was strictly restricted from sub-letting the premises to the plaintiff without prior written consent of the President. I therefore consider that in the absence of the written consent of the President, there was no legal estate or interest on the premises conveyed to the plaintiff. In the result the plaintiff, in my judgment, does not seem to be a protected tenant under the provisions of the Act, Cap. 440.
The terms of
the lease i.e. parties, property, length of term, rent and
commencement date of terms, appears to have been agreed
upon
between the defendant and the plaintiff. Thereupon the plaintiff
was allowed to occupy the premises. Equally the plaintiff
on his
part paid rent for some months (see
William Jacks and Company (Zambia) Limited (1967) Z.R. 110). It
therefore appears that in all probability there was an agreement
for lease, though I would not make any conclusive findings
to that
effect. In Woodfall, Landlord and Tenant Vol. 1 (27th Edition) at page 132, contract for lease or an agreement-for lease is defined as under:
In para. 381 of the mentioned Woodfall Vol. 1, at p.162, it is stated:
p45
is by the
contract left to be determined by third persons, e.g. arbitrators
or surveyors, and that has not been done before
action, the court
will not decree specific performance, having no power to compel
such third persons to perform their duty;
it therefore treats the
contract as too imperfect to be specifically enforced."
In the same Voluble at p.177, in para. 420, it is stated:
In the Law of Real Property by Magurry and Wade, (4th Edn.) at p.626, differences between legal and equitable leases have been explained as under:
p46
As I have
said, it appears that there was an agreement for lease between the
plaintiff and the defendant upon the agreed terms.
One of the
terms of the agreement obviously was that the plaintiff had
covenanted to pay K7,500.00 as rent per month. The
plaintiff it is
evident had paid the agreed rent for some months. Equally he has
conceded that he has been arrears for the
months of December,
1982, January, 1983 and February, 1983 i.e. the month
before he was evicted. The law is that there can normally be no
specific performance in favour of a tenant
whose tenancy is
subject to a condition precedent or who is already in breach of
one of the terms of the agreement. In this
case the plaintiff in
failing to pay the rent for the months of December, 1982, January,
1983 and February, 1983, had apparently
breached one of the terms
of the agreement for lease. Secondly, in my view, the agreement
for lease, even though the rental
was agreed between the parties,
was subject to a condition precedent because under s.13 (3) (b)
the rent agreed between the
parties had to be consented in writing
by the President. It is clear that under s.13 (3) (b) of
Act 20 of 1975, the President may allow the agreed rent or may fix
a rent which be deems it, proper and that decision could
not be
questioned in any Court or tribunal. In the premises I have my
doubts as to whether there could be specific performance
in favour
of the plaintiff. Further, it is
also my view that until the written consent by the President was
obtained, as provided under s.13 (1) of Act
20 of 1975,
notwithstanding the validity of the Agreement for lease between
the plaintiff and the defendant, the defendant
as the landlord,
had no power to grant occupation of the premises to the plaintiff.
Consequently the plaintiff, in my view,
had and has no right to
legally occupy the premises.I have, therefore, my reservations as
to the plaintiff's rights, legal
or equitable to quiet and
peaceful enjoyment of the premises as claimed by the plaintiff. I do not know,
and it is impossible for me to know, how the rights of the parties
are likely to be decided when the case is
heard. It may be that it
will be found that the defendant has broken the agreement; it may
be that it will be found that
the plaintiff is entitled to quiet
and peaceful enjoyment; it may be that it will be found that the
defendant was within
his rights to re-enter; it may be that the
defendant will have to pay damages. I do not know.
p47
I fully agree
with the above because, what has been stated is very much
applicable to the situation in this case. What I have started hereinbefore, however, has some bearing on the application before this Court. Injunction, the equitable remedy, is the negative counterpart of specific performance. It is in the discretion of this Court to grant an interlocutory injunction or not. If granted, the object would be to keep things status quo until the question at issue between the parties can be determined. I am mindful that the discretion has to be exercised judicially. In the case of an interlocutory injunction or for that matter any injunction, one of the matters that the Court has to consider is the conduct of the parties. A plaintiff who complains of the defendant's breach of contract will not obtain injunction it he too is in breach. Equally, he who comes into equity must come with clean hands. Thus a contracting party who fails to perform his part cannot obtain an junction to restrain breach of covenant by the other party.
In this case
it is evident that the plaintiff in having fined to pay the agreed
rent in time had breached one of the principal
covenants of the
agreement for lease; and therefore he himself was in breach of the
contract when evicted. Equally up to
the time of hearing this
application, the plaintiff, obviously, has not settled the arrears
of rent, which is a substantial
amount. In the light of the
substantial arrears, I cannot say that the defendant was
unjustified in rejecting the plaintiff's
proposal to settle the
arrears in instalments. In view of the above, I cannot see how I
could be justified in finding that
the plaintiff, in seeking
equity, has come to this Court with clean hands. The maxims "He
who comes to equity must come
with clean hands," and "He
who comes to equity must do equity", in my considered view,
cannot be interpreted
very flexibly. Furthermore, I have
hereinbefore expressed my doubts concerning the plaintiff's rights
legal or equitable,
to quiet and peaceful enjoyment of the
premises. Equally, I have expressed my doubts as to whether the
defendant in the absence
of the President's consent in writing,
had the power to grant occupation of the premises to the
plaintiff, and whether the
plaintiff's occupation of the premises
without the consent in writing by the President was and is legal. For the foregoing reasons and having given due consideration to what the learned Counsels have submitted, I find that this is not a case where it would be proper for this Court to grant an injunction as claimed by the plaintiff. On the facts obtained the plaintiffs rights, in my judgment, lie in damages rather than injunction. The application for injunction is therefore dismissed with costs to the defendant.
Application dismissed |
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