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The Respondent was owner of a house at plot No 15216/1080 Kamwala South, Lusaka. In or about June 2006, the Respondent let his house to the Appellant at a monthly rent of K750 000. In an apparent effort to compel the Appellant to settle arrears of rent by way of distress, the Respondent locked the Appellant’s family out of the house on or about 13 May 2007. On 18 August 2007, the Appellant obtained a police report stating that between the night of 13 August 2007 and the morning of 14 May 2007 (sic), unknown persons had broken into the house and gotten away with several household goods and cement. The Appellant commenced an action against the Respondent seeking a declaration that the eviction was illegal, a claim for damages thereof and damages for the loss of his goods. In his defence the Respondent alleged that he had locked the front door of the house and the rear door was left unlocked and the keys thereof were in the possession of the Appellant’s family. The trial court found for the Respondent and held that as the Appellant’s wife remained with keys to back door and other rooms, she should have taken care of the property instead of shifting the blame to the Respondent.
1. A finding of fact which is made in favour of one side of the story without any analysis as to how that side of the story has come to be accepted over the other is certainly perverse and cannot be allowed to stand. The trial court’s finding of fact that the Appellant’s wife was left with keys to the rear door and the doors to the inner rooms is set aside.
2. No distress for the recovery of rent in respect of any premises shall be levied except with the leave of the court. The Respondent did not obtain leave of the court for him to distrain on the Appellant’s property. Therefore, his action was unlawful and exposed him to liability in damages for unlawful distress. The Appellant was entitled to damages for unlawful distress and damages for the goods that were stolen