Northen Breweries (1995) PLC v Lombe & Another (Appeal 133 of 2002) [2003] ZMSC 87 (26 September 2003)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 133A/2002 HOLDEN AT NDOLA (CIVIL JURISDICTION) NORTHEN BREWERIES (1995) PLC APPELLANT AND BRIAN E. LOMBE MARGARET S. LOMBE 1s1. RESPONDENT 2ND RESPONDENT Coram: Sakala, (cid:9) Chibesakunda and Chitengi 335 4th June and 26th September, 2003. For the Appellant: (cid:9) Mr. J. Kabuka of). Kabuka and Company. For the Respondents: No appearance. Sakala Ci, delivered the Judgment of the Court. JUDGMENT This is an appeal against a Judgment of the High Court holding that the Appellants were liable to pay K9 million for repairs and K900,000 for mesne profits or occupation charges making the total award of K9,900,000:00 to be paid. The court ordered that the award should attract interest at 20% per annum with effect from 4th June, 1997 when the writ was filed to date of Judgment. (cid:9) For convenience, we shall refer to the Appellant as the Respondent; the first and second Respondents in this appeal as the first and second Plaintiffs, which they were in the court below. The facts of the appeal are very short. Sometime in October 1996, the Plaintiffs bought house No. 2064 Frazer Street, Riverside, Kitwe, from the Zambia Privatisation Agency. The house was then owned by Zambia Clay Industry, but being rented to the Defendant and occupied by their employee. Sometime in November, the second Plaintiff wrote the Defendant informing them of change of ownership of the house. She also informed the Defendant, that if they wanted to continue occupation of the same house, a new lease agreement had to be entered into at K380,000 rent per month. The Defendant did not respond to the second Plaintiff's letter. They equally did not enter into a new lease agreement. It was common cause that the Defendant had paid rentals to Indeco Estates up to the end of December, 1996. In December 1996, the second Plaintiff again wrote the Defendant demanding that, since they did not appear interested in the house, they should yield vacant possession of the house upon expiry of the rent paid to INDECO Estates at the end of December. The Defendant did not vacant the house at the end of December 1996. They continued occupying the house until the Plaintiff obtained a Court Order for possession. This Order was by consent in the proceedings which the Plaintiffs had earlier commenced for possession of the same house. The Defendant vacated the house but refused to carry out a joint inspection with the Plaintiffs. They also refused to respond to the Plaintiff's request to repair the house even after the quotation was sent to them. It was not in dispute that the Plaintiffs carried out repairs to the house. The Plaintiffs commenced these proceedings claiming for arrears of rent or occupation charges and for repair expenses incurred. Both the Plaintiffs gave oral evidence. (cid:9) The Defendant's employee testified on their behalf. After reviewing the evidence, the court noted that the Defendant's defence to the claim for rent arrears was that there was no tenancy agreement and therefore no legal basis for that claim. The court also noted that the contention by the Defendant was that the consent order for possession in the other earlier proceedings, had determined the issue of rent arrears. The court held that the consent order, which gave the Plaintiffs possession of the house, did not prevent them from commencing a subsequent action claiming for rent arrears as the Defendant had remained in occupation of the Plaintiffs' house without paying for that occupation. Thus, the court ordered that the Defendant should pay rent for the period, between 1st January 1997 to May, 1997. The court also ordered that the repairs be paid, there having been no dispute on the same. Hence, this appeal to this court. In arguing this appeal, Mr. Kabuka relied on two grounds; that the learned trial judge misdirected himself both in law and in fact by permitting subsequent litigation for additional remedies to a Plaintiff who had previously proceeded and obtained Judgment under Order 113 of the Rules of the Supreme Court; and that the court below erred by holding the Appellant liable for mesne profits after finding that the Respondents were in the circumstances not entitled to recover rent. We take note that the Memorandum of appeal contained four grounds of appeal and properly so, the grounds relating to the award for repairs were abandoned. The gist of the short submissions was that the narrow scope of Order 113 to claim possession of land from illegal occupants prevents other additional causes of action being maintained, and that since there was no contractual relationship of Landlord and Tenant between the parties and the Plaintiffs had previously opted to obtain possession under the special procedure of Order 113, they were deemed to forfeit a claim for mesne profits. All these arguments, in our view, beg the question for two reasons: First, in the earlier action there was a consent order. Thus, whether the action was under Order 113 or not is not, an issue. Secondly, on the facts of this case, where the Defendants continued in occupation on the basis of an earlier tenancy agreement with the previous Landlord, we do not understand why that action was brought under Order 113 because the Defendants were never illegal occupants of the house. They occupied the house by virtue of a tenancy agreement. Their continued occupation of the house was justified on the basis of this earlier tenancy agreement and in the circumstances could not be said to be illegal tenants. But as we have observed, on the issue of vacant possession, there was a Consent Order. We have considered the judgment of the learned trial Judge and the evidence on record. We have also considered the heads of argument filed on behalf of the parties. In dealing with the issue of subsequent litigation for additional remedies, the trial court had this to say:- In answer to the claim for rent arrears, the Defendant has contended that since there was no tenancy agreement there was no legal basis for them to make payment They have further contended that because of a consent order that was made in the earlier proceedings, the issue had been determined. In determining this issue I will start with the issue of the consent order. The appropriate paragraph of the consent order that was made on 9th June, 1997 is (b) which reads:- '(b) The Applicant's claim for mesne profits — be struck out' In my view that paragraph could not be interpreted as stopping the Plaintiffs from claiming for mesne profits in another action. That provision referred to the action under cause 1997/Hk/146 and not a subsequent action." We agree with the learned trial judge. The consent order in the earlier action related to possession only. Indeed, if the parties did not agree on the other claims in that action, those claims could not be part of the consent order. At the same time, the Plaintiff was not stopped from commencing a fresh action on matters not consented to, although a neater approach would have been to proceed, to trial in the same course, on matters not agreed. As to the recovery of rent, the evidence not in dispute was that the Defendant remained in occupation of the house until there was a court Order to yield vacant possession of the house. Surely, it cannot be seriously argued that the Plaintiffs were not entitled to recover rent for that period. This appeal has no merit. It is dismissed with costs to be taxed in default of agreement. E. L. Sakala CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE IL (cid:9) a P. (cid:9) engi SUPREME COUR JUDGE