Banda v Parekh (52 of 1993) [1994] ZMSC 158 (18 February 1994)

HuLPEbl Ai’ k. UsaK/1 <C1V1L JURISDICTION) BETWEEN; appeal no. FRIDAY BwNDa O/A JUMBE BAR) and Appellant K. R. PAREKH Respondent Coram: Bwoupe D. C.u, Chirwa and Muzyamba JJs ar Lusaka on 22nd November 1993 and loch February 1994 For the Appellant ; Mr. B. K. Chishimba, Chishimba and company For the Respondent: Mr. E. N. Mukuka, Mukuka ano company JUDGMENT Chirwa J.b. delivered the judgment of the court. Case referred to: <1)^poilu Ret;igcration Services go, liu v FaLaurs House CiEHteu ^l^oOj ^. A. loz We will refer cne parties in thia appeal as they were in the court below, namely K. R Parekh as plaintiff anu Friday Banda as defendant. The plaintiff is the owner of Business premises in Kabwe known as brand 49 and the defendant ia a tenant on these premises running a bar known as Jumbo Bar. The defendant has been a tenant on the premises since 197b. in terms of Land and Tenant <Business Premises? Act tap. 44b the plaintiff on jlst January 1992 gave notice to quit to the defendant. Ine defendant did not respond to this notice and he did not quit the premises, on oth July 1992 the plaintiff issued a specially indorsed writ to which the defendant entered an appearance. 2...un J th August - U ” on >th August Iv9z under a procedure nut very xamiliar to this court. the plaintiff issued sumnona headed “auonons tor Possess ion of Business premises pursuant to Cap. ^4uu and these aunrions were supported by an affidavit. the reasons tor wanting possession disclosed in the affidavit are that toe defendant persistently delayed paying rent and that the plaintiff wanted to reconstruct the premises, .he defendant filed an affidavit in opposition in which ne disclosed that he had issued a writ of summons against the plaintiff under cause number 1991/HB/41 claiming compensation fur the un­ exhausted improvements made to the premises and an injunction restraining the plaintiff from evicting the defendant from the premises. The injunction was duly issued. ihe defenuant obtained juugcwnc in that case anc the case was pending assessment of damages, it also appears from the affidavit that the plaintiff agreed to pay the compensation but at the same time increased rent from KJ.odd to KJu.duU per month, ihe defendant further asserted that the plaintiff conaacnced the present proceedings in order co frustrate hxs claim for compensation (or the unexhausted improvements carried out on the premises. The learned trial judge proceeded to hear the summons.. At the hearing counsel for the defendant raised same preliminary issues amongst which were that the proceedings before the court were irregular under order & rule 2 of the High Court Rules. In the alternative it was argued chat the reasons for wanting possession had not been substantiated and were not genuine, basely that since there was already another case between the parties, the earlier case should be completed first to avoid multiplicity of actions. The learned trial Judge dealt with these objections and over ruled them and proceeded to acai with the case on affidavit evidence and st the end of the day entered judgment in favour of the plaintiff and ordered possess ion of the property and the payment, of rent arrears. 3...in arguing - Jj - in arguing ch is appeal Mr. chishimba repeated the objections be raised in the court beloi; as bis grounds of appeal. He added that the learned trial judge erred m awarding un­ ascertained interest. in reply Mr. Mukuka submitted that the court below had jurisdiction to entertain the matter in chat the matter was commenced by a specially indorsed writ of summons as provided for under Order b Rule 9 of the High Court Rules and that if there was any error in issuing eunaaons under Landlord and Tenant (Business Premises; Act instead of taking up summons under order Xlll of the High Court Rules, the wrongly headed summons should be treated as summons under urder Xlll of the High Gouri Rules as this would not prejudice the defendant as he had filed an affidavit in opposition and especially that the defendant does not object to leave the premises, on interest. Nr. Mukuka conceeded that Lhe learned trial judge erred in awarding interest in the manner he did. We have considered the affidavit evidence on record and also the submissions by both counsel, ft is clear from the evidence that as a tenant on the premises the defendant was given the statutory notice to quit and that he did not respond to this notice as required by the Act and that at the expiry of the notice he did not vacate the premises. Having taken that stand, the plaintiff was entitled to take steps to take possession of the premises. The plaintiff in order to take possession properly issued a specially indorsed writ as this is the procedure as we stated in the case of Apollo Refrigera- Sarvices Go. Ltd v Farmers House Ltd (1J in accordance with the provisions of order b Rule 9 of the High Court Rules. The hitch came about when the plaintiff took up "summons" under the Landlord and Tenant (Business Premises; Act. There is no such a procedure under the Act as purportedly used by the plaintiff. However we will, under the circumstances of this case treat these summons as if they were summons under Order Xlll of the 4... High Court Rules - J4 - High Court Rules as we feel that the defendant will not be prejudiced and to save costs for both parties. However we wish to strongly caution advocates that proper procedure must always be used and the court will not take such omissions kindly in future, in treating this matter as if it was brought under Order Kill we have to look at the affidavit in opposition to see if any possible defence(s) have Deen disclosed. After a careful scrutiny of the affidavit we see no possible defence raised in the matter. We accept that there are two causes affecting these premises; this one by the plaintiff for posse­ ssion and the second one by the defendant for the recovery of expenses incurred in improving and expanding the premises. Ine only objection we can discern from the affidavit in opposition is that the defendant fears that this action is merely to frustrate ms claim for compensation for the unexhausted improvements made on the premises, in the absence of any ^csst^le defence had the aumutous before the court below been under vrue' Xli*. of the High Court Rules, the learned trial judge would nave come to the same conclusion. We therefore dismiss this ..ppeal. Coming to the amount of arrears, the defendant in paragraph 14 stares that the rent he had peen paying was K3,uUU per month but the plaintiff without brace Consent unilaterally increased it to KbU'OUU per month. There is no affidavit in reply to challenge this aaaertation. As there was no state consent to increase the rent, the rent arrears shall oe calculated at the agreed rent of K3,0UU per month and these arrears will carry interest at the current bank interest rate. Costs to the plaintiff. B. K. Bweupe DEPUTY UI. EF jUoliCE D. K. Chirwa SUPREME U/URI JUDGE W. H. Muzyamba SUPREME suURT JUDGE