On
1 January 2010, the applicant and the respondent entered into a lease agreement
in terms of which the respondent would sublet part of No.3 Market Street,
Eastlea, Harare to the appellant who would pay monthly rentals of US$750= to
the respondent.
The
appellant stopped paying rentals in March 2010 in breach of the lease
agreement. The respondent instituted proceedings in the Magistrates Court
against the appellant. The trial magistrate found that the appellant herein was
in breach and had no right to claim, as he did before her, that rental arrears
were due to the City of Harare as the appellant did not then have a lease
agreement with the City of Harare. She granted an order in the following terms:
“IT
IS ORDERED THAT:
1.
The Respondent and all those claiming title through him be and is (sic) hereby
ordered to vacate No.3 Market Street, Eastlea, Harare within 7 days from
delivery of judgment and in the event that the Respondent fails to vacate, the
Messenger of Court be and is hereby authorised to evict Respondent and all
those claiming title through him.
2.
Payment in the sum of $2,000= due and owing by the Respondent to the Applicant
as outstanding rentals. (sic)
3.
Costs of suit.” (sic)
The
appellant appealed against the court a quo's judgment on
three grounds. The following are the grounds of appeal that he raised:
“1.
The Learned Magistrate erred as a question of fact and law in failing to
appreciate that there are several material disputes in this matter that it
could not be resolved on papers alone.
2.
The Learned Magistrate also erred as a matter of fact in disregarding that the
rights and interest in the property in dispute are now vested in the appellant
in terms of the letter of authority to use the property from City of Harare.
3.
Further, the Learned Magistrate erred in disregarding that evidence from City
of Harare was of paramount importance to advise of the status of the portion
occupied by the appellant.” (sic)
The
background to the matter is that as at August 2010, the respondent had been
leasing No.3 Market Street, Eastlea, Harare, from the City of Harare for ten (10)
years in terms of a verbal lease agreement. The respondent alleged that in
terms of the verbal lease agreement that he had with the City of Harare, he was
allowed to sublet and that it was on this basis that he had entered into the
six (6) month lease agreement with the appellant in terms of which he sublet
part of the property. In terms of their lease agreement, the respondent gave
the appellant vacant and peaceful possession of a piece of land, being part of
No.3 Market Street, Eastlea, Harare. Based on his reciprocal obligation, in
terms of the same agreement, the appellant paid rent to the respondent in
January and in February 2010. The lease period of six (6) months was to expire
on 30 June 2010.The appellant does not dispute that after paying rent for
January and February and part payment for March, 2010, albeit late, he did not
make any further payments.
On
an earlier date on which this appeal had been set down for hearing the matter
was postponed and the parties advised to approach the City of Harare in order
to seek clarification as to who had title over the disputed land.
Counsel
for the respondent advised this court that the advices that he got from the
City of Harare were to the effect that the City of Harare had, in September
2010, given to the appellant title in the piece of land that the respondent was
previously subletting to the appellant. The appellant confirmed that this was
the state of affairs. Counsel for the respondent submitted that in view of this
state of affairs the respondent no longer opposes the appeal in as far as it
relates to the issue of the appellant's ejectment from the piece of land as he
is now entitled to occupy it. He submitted that the respondent persists,
however, in opposing the appeal only in relation to the issue of arrear rentals
for the period March 2010 to July 2010 which the court a quo had
granted to the respondent in the sum of $2,000=. The reason for this
persistence, he submitted, is that the appellant's title to the piece of land
only came into effect in September 2010. Accordingly, for the period March 2010
to July 2010 the appellant's occupation was premised on the parties' lease
agreement.
The
appellant's contention is that the respondent had no right to sublease the land
to him and that as the respondent was subletting it to him illegally, he had no
obligation to pay any monies to it.
In Robinson v Grimm 1996
(2) ZLR 83…, the following was stated per KORSAH JA:
“The
general rule of the common law is that a lessee may not dispute the lessor's
title. This rule that a lessee may not dispute the lessor's title has been
applied where a lessee, upon termination of the lease, refused to vacate the
property. See Loxton v LeHanie (1905) 22 SC 577 at 578 where BUCHANAN ACJ said:
'The defendant has set up the
defence that the title of the ground is in dispute, and, therefore, the
magistrate has no jurisdiction. But it is not competent to dispute his
landlord's title.'
So also in Kala Singh v Germiston Municipality 1912 TPD 155 at 159 – 160,
where, upon the point being taken that the Municipality, being a statutory
body, was not entitled to let the Stand to the appellant, DE VILLIERS JP
expressed himself thus:
'But in answer to this, we have
the general rule of the English law, which it was decided, amongst others, in
Clarke v Norse Mines Ltd (1910 TS 512) is
also a rule of our law, that as between lessor and lessee it does not lie in
the mouth of the lessee to question the title of his landlord. He could be
met by the exceptio dolimali…,.'”
It
appears to me that the abovestated rule of our law disposes of this appeal as
it leaves the appellant with no valid leg to stand on in his resistance to pay
the outstanding rentals for the period March 2010 to July 2010. Such rentals
became due by virtue of a lease agreement in terms of which a landlord and
tenant relationship was created between him and the respondent. The appellant
was given occupation of a piece of land, part of No.3 Market Street, Eastlea,
Harare by his landlord. His obligation was to pay rentals for the duration of
the period of the lease agreement. As a tenant, the appellant cannot
question the title of the landlord and purport to rely on the landlord's lack
or want of title as a defence.
It
is for the above reasons that the court a quo's decision
cannot be faulted. The opposition to the appeal insofar as it relates to the
appellant's eviction having been withdrawn, the appeal will therefore succeed
only to that extent. However, for the reasons appearing earlier above, the
appeal against the order that the appellant herein pays to the respondent $2,000=
in outstanding rentals cannot succeed. Costs will follow the cause.
In the
result, it is ordered as follows:
1.
The appeal against the order by the court a quo, that the appellant herein
and all those claiming through him vacate No.3 Market Street, Eastlea, Harare,
be and is hereby allowed.
2.
The appeal against the order by the court a quo, that the appellant herein
pays $2,000= to the respondent herein in outstanding rentals be and is hereby
dismissed with costs.
