Constantinos v Ahmed (Appeal 20 of 1993) [1993] ZMSC 98 (17 November 1993)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 20 OF 1993 HOLDEN AT LUSAKA d E TH t E GEORGOPOULOS CONSTANTINOS APPELLANT Vs OR. ABDUL RAH ID AHMED RESPONDENT CORAH: GARDNER. CHA I LA AND MUSUMALI JJS., 15th July, 1993 and 17th November, 1993 E. U. Mwansa of E. J. N. Chambers appeared for the appellant. J. Naik of Jitesh Naik Advocates appeared for the respondent. JUDGMENT Gardner U. S. delivered the judgment of the court. This is an appeal from a judgment of the High Court granting a new tenancy to the respondent for a term of five years. The appellant is the landlord of premises at stop HO. 5 on Stand HO. 8600 in Lusaka, and the respondent is the tenant of those premises. The respondent applied for a new tenancy setting out that tne period snouid be five years at K40,000.00 per month. The appellant filed an affidavit in opposition referring to arrears of rent in the sum of K480,000.00, and asking for an order for possession of the premises, presumably on the ground of non-payment of rent. The appellant did not in Pis affidavit in opposition set out any objection or suggested alternative tu the period of five years requested oy the respondent, details of this oojection are required by Rule 6 (2) (b) of rhe Landlord and Tenant (business Premises) Rules 1973. In nis original notice to quit, wnicn was invalid, the appellant nad indicated tnat tie premises were required oy him because he had an intention to dispose of the premises as a whole within the terms uf section 11 (1) (e) of the Landlord and Tenant (business Premises) Act. At the hearing in the Hign Court the evidence concerned mainly the sum of rent tiiat had open paid, tne amount tnat nad been obtained oy tne respondent by subletting part of the premises, and tne suggestions oy ouch parties as woat snouid be the proper rent for the premises. The appellant gave no evidence to support cny of th- grounds under section 11(1) of tne Act oh*which tie could oppose tii- application for a now tenancy. In argument counsel for the appellant suggested that a period cf two years would be a reasonable period if a new lease were granted. The learned trial judge found that, as the appellant had not complied witn section 6 (6) of the Act, namely that he had not within two months of the request for a new tenancy given notice of the grounds for his opposition to a grant of the new tenancy the application had not been validly opposed. He therefore, ordered tnat there should be a grant of a new tenancy. In fact in paragraph ten of his affidavit of opposition tne appellant stated tnat the respondent had sublet the premises without authority. This would nave entitled the appellant to oppose the application for a new tenancy under section 11 (1) (c) if it had been proved that there had been a letting without consent. However, although tne appellant said in his evidence in chief that he did not allow the respondent to sublet the premises, he agreed in cross-examination that he knew that part of the premises was sublet and that he renewed the lease knowing that fact. The evidence indicated: that the appellant couid not have satisfied any of the provisions of section 11 (1) and tnat he had no valid ground for opposing the grant of a new tenancy. On appeal Mr. rlwansa argueo that the parties should nave oeen given an opportunity to agree a term of the duration of the new tenancy, that tne learned trial judge had erred in holding that the application was not validly opposed, and that the interest awarded by the learned trial judge was wrong. This latter ground was abandoned before this court. With regard to the second ground we nave indicated that the learned trial judgj may nave been wrong to say that the grant of a new tenancy was not opposed but he was certainly correct in saying that tne proper procedure was not • followed. Je that as it may, we nave also indicated that there is no ground of objection to a new tenancy upon which the appellant could possibly nave suceeded, whatever the procedure adopted, and the appellant cannot succeed now in appealing against the order that there should be some new tenancy. As to the period cf five years granted by the learned trial judge, we note that he gave no reason for arriving at this term and, in view of tne fact that the suggestion of two years nad oeen put before nim, it could not be said that there was no oojection co the proposal of five years. Although the learned trial judge made an order that tne rent over the period of five years should ue reviewed every twelve months it does nor. appear to us to be appropriate, where the earlier 3/.... J3 lettings have been for nor, more than two years, for this periow to b- ’xcweded. we say tnis because tnor? tiay be circumstances giving rise to the landlord's acquiring some rights under section 11 (1) in the future, and n> should not be debarred from obtaining possession because of a lease which will continue for a long time, in i.he absence of agreement between th- parties there is no justification for the grant of u lease for mors then a short -.irm. The appeal succeeds to the extent that the period of five years for tne new tenancy ordered oy the learned trial judge is set aside. in view of tne fact tnat nearly two years and eleven months have expired since the date of commencement of the new tern we substitute an order for the grant of a new tenancy from the 1st January, 19Ji lor a poriou of tnree years, de would emphasise that ou.' order does not automatically entitle tne appellant to possession of tne premises on tie expire tiofi of cite new tenancy. As the appellant nad been partially successful in this appeal we order costs of this appeal to the appellant. B. T. GARDNER SUPREME COURT JUDGE M. S. CHAILA SUPREME COURT JUDGE C. M. MUSUMALI SUPREME COURT JUDGE LN THE SUPREME GUlJRI OF ZAMBIA SCZ APPEAL NO. 20 OF 1993 HOLDEN AT NDOLA (CIVIL JURISDICTION) BETWEEN: ADULT EDUCATION ASSOCIATION OF ZAMBIA APPELLANT and THE ATTORNEY-GENERAL RESPONDENT Coram: Bweupe, D. C. J., Chaila and Cbirwa JJ. S at Ndola on Sth September and Sth December. 1993 For the Appellant : Mr. H. Chama, Messrs Mwanawasa and Co. For che Respondent: Mr. R. O. Okafor, Principal State Advocate JUDGMENT Cbirwa J. S delivered the Judgment of the court. The common facts of the case are that the appellant Is an educational association engaged in providing academic education at grade 7 and 9 levels, generally referred to as "drop-outs," Tbs association baa no premises of its own to carry out Its activities. From about 1982 it was running its programmes at Masala and Chifubu Secondary schools. In about 1989 it extended its activities at Lubuto Secondary School, Kanini Basic Secondary School, Kamba Basic Secondary School and Ndola School for Continuing Education. In about the same year the Copperbelt Provincial Education Officer ordered the association to stop Its activities at these various educational institutions giving che reason of over stretching the facilities at these institutions thereby posing a danger of out breaks of epidemics. However the association was saved by the Permanent Secretary In che Ministry of Education. 2... In 1952 - J2 - In 1992 the Provincial Educational Officer wrote the Headmasters of the various schools advising them not to allow the association carry out its activities at che said schools. As a result of this the association brought an action by way of a writ seeking a declaration that the decision by the Provincial Education Officer and the Head* masters to bar the association from using the facilities at the various schools from January 1993 was unlawful and null and void. The matter proceeded to trial without pleadings and at the end of it the learned trial judge refused to grant the declarations sought and it is against this refusal that the association now appeals to this court. In arguing the appeal Mr. Chama advanced two grounds of appeal. The first ground argued waa that the learned trial judge misdirected himself when he found that the licence granted to the appellant waa gratuitous and the same was not enforceable. He submitted that evidence clearly shows that the appellant bad been spending a let of money in the form of upkeep of the schools amounting to K475,QOO.0G and in some caaea furniture and other school equipment were bought and they were responsible for paying cleaners. These, it was submitted, showed that there was consideration for this licence. Tbo second ground argued was that the notice given for the appellant to stop using the school premises was insuffi­ cient and unreasonable in that many pupils have been affected. A notice of at least three years should have been given to enable pupils to finish their grade 12. In reply Mr. Okafor for the respondent supported the learned trial cononissioner saying the licence was gratuitous and as such the appellant did not need any notice to terminate the licence. 3... On the question - J3 - On che question of reasonableness of the notice, it was argued that the notice was reasonable bearing in mind that che wrangle had been going on since 1989 and they were finally told to leave by January 1993 and thia notice was given in October 1992 and the appellant has since then stopped operating from the schools and the appeal is merely an academic exercise. We have seriously considered the evidence on record and also the arguements advanced before ua. Although the point was not raised both in court below and before us, we wish to observe and question the competence of the Associate to sue in its naiae. However, be as it may, we will proceed to consider the appeal on its own merits. The learned trial Commissioner considered the question of consideration to determine the precise terms of the contract if any between the Association and the Ministry of Education. He held that the claims by PW1 that the Association helped towards the upkeep of the school were not supported by any evidence. The cleaning up of the premises by the Association cannot be said to be consideration for the use of the premises. We agree with the law quoted by the learned Commissioner from the authors of Clerk and Lindsell on Tort, 14th Edition that a licence can be revoked at any time by notice. In the present case the Association was given notice in October 1992 to cease operating from the schools by 1st January 1993. It cannot be seriously argued that this licence could not be revoked any time as there was not fixed period given to the Association to use the school premises and we respectifully agree that the reasonableness or otherwise of the notice is the real issue in this appeal and we will now consider this point. 4... We have observed - J4 - We have observed from the exhibit evidence that the question of the Association using school premises first came up in 1989 when the Association was stopped from using the same. However, they ware later allowed to continue using the facilities after the Permanent Secretary, Ministry of Education, Youth and Sport intervened. We have observed also that the same Permanent Secretary rescinded his authority and ordered the discontinuance of the Association's activities at the schools. The Association was given three months notice and bearing in mind that the Association was allowed to finish its academic year, we are unable to agree that the notice given was insufficient and or unreasonable. Considering the reasons given for dis-* continuing the use of the facilities, we are unable, even if we were persuaded that the notice was insufficient, to order the return of these activities at the schools concerned. We therefore see no misdirections on the part of the learned trial Commissioner in declining to declare the decision to stop the Association from operating from the schools as null and void. We dismiss this appeal with costs both in thia court and in the court below. U. K. bweupe DEPUTY CHIEF JUSTICE M. S. Chaila SUPREME COURT JUDGE D. K. Chirwa SUPREME COURT JUDGE