Petrolink Limited v Sydney Chisanga and Anor (2021/HN/078) [2025] ZMHC 15 (25 March 2025)

I IN THE HIGH COURT FOR ZAMBIA 2021/HN/078 AT THE DISTRICT REGISTRY HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: PETROLINK LIMITE AND SYDNEY CHISANGA ALPHA ENTERPRISE REPUHLIC OF 'l/\MtllA III C:H roe~·~ cw l. AM !l! ,1 f (~_! \ 2 5 t✓.~R 2(,25 __ . i "'.,, I ; ' ! • t ~-.... - ~.\-~ ,.-; ::::v L. EG l ~TH' ... ..- t. t•r • .'< -.,,-, n ,, A , f.lC-. , t.;, 1 iC. H c.ul11 ~ r ! ~ I , /\ . ' : PLAINTIFF 1 ST DEFENDANT 2ND DEFENDANT FOR THE DEFENDANTS: Ms. N. M . Mulenga - Messrs. Isaac & Partners. Mr. A. Sakala - Messrs. Simeza, Sangwa Associates. JUDGMENT CamScanner r e n n a c S m a C CASES REFERRED TO: J2 1. Joseph Moyo vs. African Banking Corporation Zambia Limited (T / A Atlas Mara), 2021/HL/50. 2. Barclays Bank Ltd and another vs. Ascor (1961) 1 ALL E. R. 782. 3. Boardroom Investments Limited (T/A Fairways Cafe) vs. Lusaka Golf Club, CAZ Appeal No. 119/2029. 4. Paperex vs. Deluk High School Limited, SCZ Appeal No. 141 of 1996. 5. Rapid Global Freight Limited vs. Zambia Railways Limited, CAZ No. 216/2016. 6. Peters Militis vs. Wilson Kafuko Chiwala (2009) Z. R. 34. 7. Zambia State Insurance Corporation vs. Serios Farms Limited (1987) Z. R. 93. LEGISLATION REFERRED TO: 1. Landlord and Tenant (Business Premises) Act, Chapter 193, of the Laws of Zambia - Section 5, 6. OTHER MATERIALS REFERRED TO: 1. Halsbury's Laws of England, Vol. 27, 4th Edition at paragraph 255. 2. Atkin's Court Forms 2nd Edition Vol. 24 (1) 1995 Issue at page 49 paragraph 22. r e n n a c S m a C 1.0 INTRODUCTION J3 1.1 The Plaintiff commenced this action against the Defendants on 29th March 2021 by Originating Notice of Motion, pursuant to Rule 3 of the Landlord and Tenant (Business Premises) Rules, Chapter 193 of the Laws of Zambia. 1.2 However, the learned Registrar in his Ruling dated 23 rd July 2021, ordered the parties to amend the originating process to show that the matter was commenced by Writ of Summons, accompanied by a Statement of Claim. Following the Registrar's directive, the Plaintiff filed an Amended Writ of Summons and Statement of Claim on 3 rd August 2021. The reliefs sought in the Writ of Summons were identical to those sought in the Originating Notice of Motion, as follows: a. A declaration that the decision by the l •t Defendant to terminate the tenancy agreement on behalf of the 2nd Defendant and to take over the Plaintifrs Petrol and diesel filling Stations situated at Kalulushi, along Kitwe-Kalulushi Road, Kalulushi and Masansa, along Mkushi Copper Mine J4 Road, Mkushi is unlawful, wrongful and/ or was made in bad faith. b. A declaration that the Plaintiff is the legal tenant of business premises situated at Kalulushi, along Kitwe-Kalulushi Road, Kalulushi and Masansa, along Mkushi Copper Mine Road, Mkushi. c. An Order of injunction to restrain the Defendants, their servants or agents or whosoever otherwise from interfering with the Plaintifrs trading in petroleum products and the quiet enjoyment of the business premises herein. d. Any other relief that the Court may deem fit. e. Costs. 2.0 PLAINTIFF'S STATEMENT OF CLAIM 2.1 In its Statement of Claim, the Plaintiff avowed that, in or about October 2019, it entered into a lease agreement with the 2 nd Defendant. It was agreed that the 2 nd Defendant would lease to the Plaintiff the Petrol and Diesel Fuelling Station situated at Kalulushi, along Kitwe-Kalulushi Road , at the rate of K50, 000.00 per month. 2.2 The parties executed another lease agreement in which it was agreed that the 2 nd Defendant lease to the Plaintiff the CamScanner r e n n a c S m a C JS Petrol and Diesel Fuelling Station situated at Masansa, along Mkushi Copper Mine Road, Mkushi, at the monthly rate of K40, 000.00. 2.3 The Statement of Claimant further avowed that the aforementioned tenancies were confirmed by the Court, wherein the Plaintiff was declared the statutory tenant of the abovementioned business premises. That, the 1st Defendant, a Director in the 2nd Defendant Company, in disregard of the Judgment of the Court, began to interfere with the operations of the Fuelling Stations by the Plaintiff. Incidents of the alleged interference were cited. That, on 13th September 2020, the 1st Defendant grabbed a K3, 000.00 from the Plaintiffs fuel attendant; while on 20th September 2020, he hurled insults at the Station Manager at Masansa Fuelling Station. 2.4 It was further stated that, on or about 25 th September 2020, the 1st Defendant signed a Notice to Terminate Tenancy on behalf of the 2 nd Defendant. The Notice r e n n a c S m a C J6 indicated that the tenancy would terminate on 30th March 2021. 2.5 The reason for termination was indicated as due to the Plaintiffs alleged failure to ensure constant supply of fuel and other lubricants for retail to the public. That, the aforesaid reasons were rejected by the Court in the concluded case. 2.6 It was avowed that the Notice in question was ineffective as the Defendants were bound by the Court's decision which declared the Plaintiff as a legal and statutory tenant. Further, that the Notice was made in bad faith as the Plaintiff did not owe any rentals to the 2nd Defendant, but that it was the 2nd Defendant who owed the Plaintiff taxed costs in the sum of KISS, 906.29, which the 2nd Defendant agreed to be offset from the accruing rentals. 2.7 The Statement of Claim further avowed that for the reasons stated above, the Plaintiff had suffered loss and damage. 3.0 DEFENDANTS' DEFENCE AND COUNTERCLAIM r e n n a c S m a C J7 3.1 On 2 nd March 2022, the Defendants filed a Defence and Counterclaim. The Defendants admitted that the Plaintiff and the 2nd Defendant entered into the lease agreements in the terms stated by the Plaintiffs in the Statement of Claim. They, however, denied that the said leases were confirmed by the Court and that the Plaintiff was declared as statutory tenant. 3.2 It was avowed that the Judgment delivered by Mr. Justice Pengele, dated 14th August 2020, under Cause No. 2020/HK/224, merely indicated that a tenancy relationship existed between the Plaintiff and the 2nd Defendant. Further, that the said Judgment did not prevent the 2nd Defendant from lawfully terminating the tenancies if done in accordance with the law. 3.3 It was avowed that the Judgment in issue, in fact, allowed the Plaintiff 'to continue occupying the subject filling stations unless and until the Respondent lawfully terminates the tenancy agreement in accordance with the JS Act.' That, the subject Judgment did not accord the Plaintiff a perpetual and interminable tenancy. 3.4 The Defence further disclosed that, in compliance with the law, on or around 25 th September 2020, the Plaintiff was issued with two separate notices to terminate tenancies for the said two leased fuelling stations. 3.5 The Defendants denied that the 1st Defendant interfered with the Plaintiffs operating of the Fuelling Stations in the manner alleged by the Plaintiff. It was avowed that the 1st Defendant was in fact not a party to any contract or agreement between the Plaintiff and the 2nd Defendant. 3.6 With regard to the reason for termination, the Defendants denied that it was restricted to the Plaintiffs failure to ensure constant supply of fuel. That, the 2nd Defendant also relied on the Plaintiffs persistent delay in paying rentals as and when they fell due, as one of the reasons for terminating the tenancies. CamScanner J9 3. 7 The Defendants denied that they were in breach of contract or that the Plaintiff had suffered loss and damage. That, in the event that the Plaintiff incurred loss and damages, then the same was too remote to sustain an action against the Defendants. 3.8 In their Counterclaim, the Defendants avowed that, as at 1st March 2022, the Plaintiff was in rental arrears to the 2 nd Defendant of a total sum of K539, 093 .71 in respect of rent for the two subject fuelling stations. It .was further avowed that the Plaintiff had failed to consistently stock sufficient fuel at the two premises to ensure constant supply as required by the implied terms of the tenancy agreement between the parties. 3.9 Consequently, the Defendants counterclaimed as follows: I. The sum of ZMW539, 093,71 being arrears of rent due as at I•t March 2022; II. Possession of the two premises being (a) Plot No. KALUL/LN-1004233-207 situate at Kalulushi in the Copperbelt Province of Zambia and (b) the premises in CamScanner JlO Masansa/Mkushi known as Subdivision No.1 of Subdivision G of Farm 3323 situated in Mkushi in the Central Province of Zambia; III. Damages for breach of contract to be assessed by this Honourable Court; IV. Damages for trespass to be assessed by this Honourable Court; V. Mesne profits at the rate of ZMW50, 000.00 and ZMW40, 000.00 per month respectively from the date of expiration of the Notices to terminate tenancies until possession is delivered up; VI. Interest on all amounts owing to the 2 nd Defendant herein until date of Writ pursuant to the provisions of the Law Reform (Miscellaneous Provisions) Act, Chapter 74 of the Laws of Zambia; VII. Interest thereafter on all amounts awarded at the commercial bank lending rate from date of Judgment until date of final payment; VIII. The costs of this action with prejudice for being an abuse of the Court process and/ or multiplicity of action; IX. Any other relief as the court deems fit. X. Costs of and incidental to this action. C a m S c a n n e r 4.0 PLAINTIFF'S DEFENCE TO THE COUNTERCLAIM Jll 4.1 On 2 5th April 20 22, the Plaintiff filed a defence to the Defenda nts ' Counterclaim. It was avowed that the Notices of te rn1ination were ineffective, because the Defendants \\ r bound by the Kitwe High Court's decision, which declared the Plaintiff as a legal and statutory tenant. The Plaintiff denied that it owed the Defendants K539, 093.71 in rental arrears. 4 .2 It was further avowed that the Notices were made in bad faith as the 2 nd Defendant owed the Plaintiff KISS, 906.29 in taxed costs, which the 2 nd Defendant agreed to offset from the accruing rentals. The Plaintiff reiterated its denial that it had failed to constantly stock and ensure constant sufficient fuel and lubricants. 5.0 lBT & COUNTERCLAIM 2ND DEFENDANTS' REPLY TO DEFENCE TO 5.1 It was a vowed th a t the a llegation of b a d faith in the manner the Notices to termin a te we re made, was not a defence C a m S c a n n e r J12 available at law. The Defendants reiterated that Notices were properly made in accordance with the Landlord and Tenant (Business Premises) Act. It was further avowed that the Plaintiff owed the 2nd Defendant K719, 093.71 as at May 2022. 6.0 HEARING OF THE MATTER 6.1 The parties filed witness statements, which they relied upon at the hearing of this matter. 6.2 At the hearing of the matter on 18th August 2023, Mr. Chabu, Counsel for the Plaintiff, indicated that the Plaintiff was not ready to proceed with its case, due to the fact that it had launched an appeal against my Ruling dated 14th June 2022, to the Court of Appeal. He informed the Court that the Plaintiff was, however, ready to defend the Def end an ts' Counterclaim. 6.3 Consequently, I proceeded to hear the Defendants' Counterclaim. The Defendants called one witness, the 1st CamScanner Jl3 Defendant herein, in support of their case. The Plaintiff, too, called one witness in its defence to the Defendants' counterclaim. 6 .4 After the Court was in receipt of information that the Plaintiffs appeal was determined by the Court of Appeal, I called for a status conference at which I informed the parties of my intention to hear the Plaintiffs case, and, thereafter, proceed to render a composite Judgment in respect of the Plaintiffs case and the Defendants' Counterclaim. 6.5 The parties adopted their testimonies in the Counterclaim as evidence also in respect of the Plaintiffs action. 6.6 Mr. Chabu informed the Court that the Plaintiff would also rely on its Bundle of Documents and Supplementary Bundle of Documents filed into Court. 6.7 It was then that Counsel for the Defendants objected to the Plaintiffs reliance on the Bundle of Documents on the CamScanner r e n n a c S m a C J14 ground that the Plaintiffs witness statement did not make reference to the said bundle of documents. In support of the objection, Counsel relied on Order 19 rule 2 sub rule (c) of the High Court (Amendment) Rules, Statutory Instrument No. 58 of 2020. Counsel further relied on the High Court decision in the case of JOSEPH MOYO Vs. AFRICAN BANKING CORPORATION ZAMBIA LIMITED (T / A Atlas Mara) 1 , wherein Maka, J, refused the witness's attempt to produce the bundle of documents outside his witness statement. 6.8 In response, Mr. Chabu contended that the fact that the Plaintiffs bundle of documents is settled through discovery and inspection, the documents were agreed and that the Court can properly refer to them. Further, that the documents, which the Plaintiff was relying upon, were documents which the Defendants referred to them in this case. 6.9 I shall deal with this objection later in the Judgment. r e n n a c S m a C J15 6.10 For convenience, I shall begin with the Plaintiffs evidence and end with that of the Defendants'. 7. 0 PLAINTIFF'S CASE 7 .1 On 27 th July 2022, the Plaintiff filed a witness statement, which it adopted and relied upon at the hearing of the matter. The same was given by Maxwell Matolo, the Plaintiff Company's Managing Director. For purposes of this matter, I shall refer to him as PW 1. 7.2 In his witness statement filed in this matter, PWl restated the contents of the Statement of Claim with regard to the lease agreements which were entered into by the parties for the subject fuelling stations. He avowed that the said tenancies were confirmed by the Court. Consequently, that the Plaintiff was declared the statutory tenant of the mentioned business premises. 7.3 PWl further reiterated that, in total disobedience to the said Judgment, the 1s t Defendant, purporting to be the Jl6 director in the 2 nd Defendant Company, interfered in the operations of the fuelling stations. One such interference occurred on 20th September 2020, when the 1st Defendant grabbed K3, 000.00 cash from the Plaintiffs fuel attendant, who was on duty at Masansa Filling Station, and hurled insults on the Station's Manager. 7.4 PW 1 further avowed that, on or about the 25 th September, 2020, the 1st Defendant signed a Notice to Terminate Tenancy on behalf of the 2 nd Defendant, stating that the tenancy would terminate on 30th March 2021. The reasons for the purported intended termination was said to have been the alleged failure by the Plaintiff to ensure constant supply of fuel and other lubricants for retail to the public. That, such reasons had, however, already been rejected by the Court under Cause No. 2020/HK/224. 7 .5 PW 1 further avowed that the Notice to Terminate Tenancy was ineffective as the Defendants were bound by the Kitwe High Court's declaration of the Plaintiff as a legal and statutory tenant. He denied that the Plaintiff was a CamScanner Jl7 trespasser on the subject premises. PWl further stated that the allegation that the Plaintiff had failed to constantly stock sufficient fuel and lubricants, and failed to ensure constant supply of fuel, was not true, and was in fact, res judicata. 7 .6 In cross-examination, PWl admitted that the Plaintiff entered into a lease agreement with the 2 nd Defendant for the subject fuelling stations at a monthly rent of K50, 000.00 and K40, 000.00, respectively. He conceded that the last time the Plaintiff paid rent to the 2 nd Defendant was on 2 nd February 2022; and before then, rent was paid on 3 rd November 2021. 7. 7 When shown the statement of account on pages 45-50 of the Defendants' Bundle of Documents, PWl stated that the said statement showed that the Plaintiff was paying rent every month on time. He, however, confirmed that as at 12 th May 2022, the statement showed that the Plaintiff owed the 2 nd Defendant K719, 093.71 in rental arrears. CamScanner 7. P\V 1 stated that at the time the Judgment was delivered by Jl8 the Kitwe High Court, the Plaintiff did not owe the 2nd Defendant. \Vhen shown the Consent Order on page 35 of th Defendants Bundle of Documents, PW 1 conceded that th parties agreed that costs for the Plaintiffs Advocates, mounting to K155, 906.20 was to be deducted from the rentals due. 7. 9 PW 1 admitted that the Kitwe High Court Judgment did not show that the 2nd Defendant could not terminate the tenancy agreement. He conceded that the last paragraph of the said Judgment stated that the 2nd Defendant could lawfully terminate the tenancy agreement in accordance with the law. 7.10 PWl admitted that on 25th September 2020, the Plaintiff was served by the 2nd Defendant with the Notices to terminate, appearing on pages 31 and 34 of the Defendants' Bundle of Documents. He conceded that, despite being served with the said Notices, the Plaintiff did not raise the objections in accordance with the law. He CamScanner J19 further conceded that the Plaintiff did not inform the 2nd Defendant within a period of two months if it was willing to give up possession or not. 7 .11 PW 1 stated that six months after the Plaintiff was served with the Notices in issue, on 29 th March 2021, it commenced these proceedings. He stated that, according to the notices, the tenancy was to terminate on 30 th March 2021. That, the Plaintiff had not, to date, vacated the 2 nd Defendant's subject properties. 7. 12 PW 1 conceded that the Plaintiffs Advocates were served with the letter on pages 37 - 44 of the Defendants' Bundle of Documents by the Defendants' Advocates, informing them of the Plaintiffs indebtedness in the sum of K359, 093.71. He admitted that for the foregoing sum to accumulate to the aforementioned figure, it was an indication that the Plaintiff was not paying rentals every month. He stated that he was not sure that the arrears had risen to K2, 069,093.71 as at the date of hearing this matter. C a m S c a n n e r r e n n a c S m a C J20 7 .13 In re-examination, PW 1 stated that the Plaintifrs records showed that, as at the end of July 2023, the Plaintiff owed the 2nd Defendant Kl, 565,000.00, in rental arrears. 8.0 PLAINTIFF'S FINAL SUBMISSIONS 8.1 It was submitted, on behalf of the Plaintiff, that the Defendants did not comply with the law prescribed in Sections 5 (1), 5 (2), 5 (5) and 5 (6) of the Landlord and Tenant (Business) Premises Act, Chapter 193 of the Laws of Zambia, when terminating the tenancy. Counsel submitted that the Notices to terminate, which were served on the Plaintiff, were invalid and of no effect, because they did not disclose any of the grounds on which the Defendants would oppose the grant of the new tenancy as mentioned in Section 11 of the Landlord and Tenant (Business) Premises Act. 8.2 It was argued that the letter of termination did not comply with Section 5 (5) of the aforementioned Act. In support of the submission, the Court was referred to the case of r e n n a c S m a C J21 BARCLAYS BANK LTD AND ANOTHER Vs. ASCOR2 , wherein it was held that: "The notice was invalid ... as no notice did not specify any ground of opposition mentioned in S. 30 of the Landlord and Tenant Act, 1954, and did not give the tenant sufficient information to enable her to deal with the situation arising from the notice, it was ineffective." 8.3 It was further submitted that the reasons for termination were settled in the Kitwe High Court Case. Consequently, that the Defendants' claims were, therefore, res-judicata. 8.4 With regard to the Defendants' claim for mesne profits, Counsel referred the Court to the opinion of the learned authors of Halsbury's Laws of England, Vol. 27, 4 th Edition at paragraph 255, wherein they opined that: "The landlord may recover in an action for mesne profit the damage which he has suffered through being out of possession of the land or if he can prove r e n n a c S m a C J22 no actual damage caused to him by the defendant's trespass ... Mesne profits being a type of damages for trespass can only be recovered in respect of the defendant's continued occupation after the expiry of his legal right to occupy the premises." 8.5 Based on the foregoing authority, Counsel submitted that mesne profits are awarded against a trespasser. That, in this matter, the Defendants were not entitled to mesne profits, because the Plaintiff was not a trespasser, but was still a tenant of the premises. For the same reason, Counsel submitted that the Defendants were not also entitled to damages for trespass. 8.6 With regard to the claim for damages for breach of contract, Counsel referred the Court the opinion of the learned author of Law of Contract, 13th Ed. Edwin Peel, as follows: "A breach of contract ls committed when a party without lawful excuse fails or refuses to perform what I J23 is due from him under the contract, or performs defectively or incapacitates himself from performing ... " 8.7 It was submitted that there was no breach of contract by the Plaintiff, because the failure to pay rentals was occasioned by the 1st Defendant. Counsel contended that the Plaintiff did not stop paying rentals, but rather, it was the interference and the notices from the 1st Defendant which caused the delay in the payment of the said rentals. He contended that the said delay was excusable and cannot amount to a breach of contract. 9.0 DEFENDANTS' CASE 9.1 The Defendants relied on the witness statement, which was filed into Court on 31st May 2022, and given by Sydney Chisanga, the 1st Defendant herein, who I shall refer to as OW 1. He avowed that he should not have been personally made a party to these proceedings, because he was not a party to any contract with the Plaintiff. C a m S c a n n e r r e n n a c S m a C 9.2 DWI stated that, by a Judgment delivered by the Kitwe J24 High Court, under Cause No. 2020/HK/224, between the Plaintiff and the 2nd Defendant, the Court held that, while the Plaintiff was still entitled to occupy the subject properties, the 2nd Defendant could lawfully terminate the tenancy in accordance with the law. That the said Judgment did not give the Plaintiff a permanent or perpetual right to occupy the premises in question as the 2nd Defendant's tenant. 9.3 DWI further avowed that, even after the Judgment in issue, the Plaintiff had failed to fulfil its legal obligation as a tenant, by failing to meet its rental obligations as they fell due. That, as at I st March 2022, the Plaintiff owed the 2°d Defendant K539, 093.71 in rental arrears, after deducting legal costs due to the Plaintiff from Cause No. 2020/HK/224. 9.4 DWI avowed that, on a number of occasions when he visited the service stations in issue, he discovered that there was not enough fuel and lubricants stock at the r e n n a c S m a C J25 premises. He felt great anxiety that his reputation was lowered in the community, because the two fuelling stations were personally connected to him as the Plaintiff operates them under his licence and Company name, Alpha Enterprises Limited. The lack of fuel stocks caused him to lose a parliamentary election in Mkushi, for the community felt that he was incapable of effectively representing them in Parliament, because of his failure to run the fuelling station. 9.5 Following the continued failure and delay by the Plaintiff in making its rental payments, as well as its failure to ensure sufficient fuel and lubricant stocks, DWl instructed his lawyers to cause to be issued to the Plaintiff Notices to Terminate Tenancy of the premises. The 2nd Defendant's Advocates did this on 25th September 2020 for both fuelling stations. He referred to the said Notices appearing on pages 29-34 of the Defendants' Bundle of Documents. The six months' notice period to terminate business tenancy for both properties expired on or around 26 th March 2021. 9 .6 Despite the deadline for the notices having expired, the J26 Plaintiff had not handed over the premises to the 2nd Defendant. It had continued to be in occupation of the premises without the consent of the 2 nd Defendant. DWl avowed that the Plaintiff had continued to benefit unjustly from the use of the 2nd Defendant's premises without paying rent to the 2nd Defendant. That, as at 12 th May 2022, the Plaintiff owed the 2nd Defendant a sum of K719, 093.71, and that mesne profits had continued to accrue from the Plaintiff. 9. 7 DW 1 further avowed that, as a result of the foregoing, the 2nd Defendant ought to be given possession of the two premises in question, as the notices to terminate tenancy had since expired. 9 .8 In cross-examination, OW 1 stated that, after the delivery of the Judgment by the Kitwe High Court, he had been going to the fuelling station at Masansa in Mkushi , because his Lodge and Mini-Mart were located on the same property. C a m S c a n n e r J27 He admitted having gone to the said fuelling station on 13th September 2020 and approached a fuel attendant on duty. 9.9 DWl stated that it was his Sales Lady, Eunice, who got K3, 000.00 from the attendant with the view of paying back after making the sales at the Mini-Mart. He avowed that the money was later paid back. He denied that it was him who personally got the money from the fuel attendant. He further denied having caused an altercation with the Station Manager of the Masansa Fuelling Station. 9 .10 DW 1 further stated that when he visited the filling station, he noticed that there was no fuel. He said the community and the Chief complained to him about the inconsistent supply of fuel stocks at the filling station. Further, that the Energy Regulation Board summoned him over the fuel shortages. He maintained that lack of the fuel stock and lubricants at the filling station was one of the reasons he lost the Parliamentary election in Mkushi. C a m S c a n n e r 9.11 DWl conceded that the 2 nd Defendant did not compute the J28 rental arrears in the Notices to Terminate Tenancy which was served on the Plaintiff on 25 th September 2020, because the Plaintiff was still using the facilities. He admitted that no invoice of rental arrears was attached to the Notices in issue. OW 1 denied that the reasons he gave for the termination of the tenancy were false. He further denied that the notices to terminate tenancies were made in bad faith because of the outcome of the case in the Kitwe High Court. 10.0 1 sT & 2N° DEFENDANTS' FINAL SUBMISSIONS 10.1 Counsel submitted that a lease agreement for business premises is a contract that is governed by the ordinary rules of contract. In support of the submission, the Court was referred to the case of BOARDROOM INVESTMENTS LIMITED (T / A Fairways Cafe) Vs. LUSAKA GOLF CLUB 3 , wherein the Court of Appeal stated: C a m S c a n n e r J29 " [I)t is important at the outset to mention that a lease agreement for business premises is [for] all intents and purposes a 'contract' which is governed by the ordinary rules of contract law. This proposition finds support from the position taken by the learned authors of J. D Riddall in a book entitled Introduction to Land Law, 4th edition at page 225 where the learned author states that: "As a contract, a lease is subject to the principles of contract law." The peculiar nature of a lease agreement relating to business premises is that it is composed of express terms that are to be found in the actual lease agreement, as well as express terms imposed by statute law that are found in the Landlord and Tenant (Business Premises) Act." 10.2 It was further submitted that the 2 nd Defendant properly terminated the tenancy in accordance with Section 5 (1) and (2) of the Landlord and Tenant (Business Premises) Act after giving the Plaintiff the requisite six months' notice . That, however, the Plaintiff failed to notify the 2°tl C a m S c a n n e r J30 Defendant within two months of service of the notice, whether or not it would be willing to give up possession at the end of the period of notice, as required by Section 5 (5) of the Act. On the effect of the Plaintiffs mentioned failure, the Court was referred to the case of PAPEREX Vs. DELUK HIGH SCHOOL LIMITED4 , wherein the Supreme Court stated: "A notice to quit was served on the respondent who failed to apply for a new tenancy. Finally, the appellant issued a writ to recover possession and it was in that action where the respondent counterclaimed for the grant of a new tenancy. Of course, this is not the procedure tenants served with notice to quit should emulate under the Act. It is up to the tenant to apply to court for a new tenancy within the period laid down otherwise the tenancy determines and ceases to be a protected one ... " 10.3 The Court was further referred to the case of BOARDROOM INVESTMENTS LIMITED (T / A Fairways C a m S c a n n e r J31 Cafe) Vs. LUSAKA GOLF CLUB, supra, wherein the Court of Appeal held: "Failure by the tenant to apply for a new tenancy in conformity with the Act results in the tenancy ceasing to be a protected one. The landlord is required to give not less than six months' notice before the date of termination ... " 10.4 For the foregoing reasons, the Court was urged to find that the 2nd Defendant complied with the law when it terminated its leases with the Plaintiff and order the Plaintiff to yield vacant possession of the premises in issue to the 2 nd Defendant. 10.5 Counsel further submitted that since the Plaintiff continued to be in occupation of the demised properties despite the tenancy having been properly terminated, the 2 nd Defendant is entitled to mesne profits. A plethora of authorities on mesne profits were referred to. C a m S c a n n e r 10.6 It was Counsel's further submission that the 2 nd Defendant J32 is entitled to damages for trespass, considering that the Plaintiff has continued to be in occupation of the premises even after the tenancy was terminated. The Court was urged to award the 2 nd Defendant damages for trespass. 10.7 With regard to the claim for damages for breach of contract, Counsel submitted that the fact that the Plaintiff has not made any payment towards rent following the notices to quit served on it on 25 th September 2020, the Plaintiff is in breach of the tenancy agreement. That, the 2nd Defendant 1s, therefore, entitled to monetary compensation for loss sustained. In support of the submission, the Defendants relied on the decision of the Court of Appeal in the case of RAPID GLOBAL FREIGHT LIMITED Vs. ZAMBIA RAILWAYS LIMITED 5 , wherein it was held: "The principle remedy for breach of contract is monetary compensation ... " C a m S c a n n e r J33 10.8 Further reliance was made on the opinion of the learned authors of Halsbury's Laws of England 4 th Edition (Reissue) 1998, Vol. 12 (1), in which they opined as follows: "The normal function of damages for breach of contract is compensatory. Damages are awarded, not to punish the party in breach, or to confer a windfall on the innocent party, but to compensate the innocent party and repair his actual loss. Compensation is normally achieved by placing the innocent party in the same position, so far as money can do as if the contract had been performed. Only in exceptional circumstances do courts depart from this policy and award some greater or lesser sum." 10.9 The Court was urged to award the 2nd Defendant compensatory damages for breach of contract. C a m S c a n n e r 11.0 COURT'S DECISION J34 l l. l I have carefully considered the evidence in this matter, as well as the arguments by the parties. 11.2 Before I proceed to determine the substantive action, I wish to deal with the Defendants' objection to the Plaintiff's submission to rely on the documents in its Bundle of Documents. The objection is premised on the fact that the Plaintiff's witness statement did not make reference to the documents in the bundle of documents that the Plaintiff was relying on, as required by Order 19 Rule 2 (c) of S. I. No. 58 of 2020. 11.3 On the other hand, Mr. Chabu contended that the Court can still make reference to a document in the Bundle of Documents, despite not having made reference to it in the witness statement. This is so, because the documents in the Bundle of Documents would have been settled by the parties through discovery and inspection. It was Counsel's further contention that, in any event, the documents the CamScanner J35 Plaintiff intended to rely upon in its bundle of documents, were also relied upon by the Defendants. 11.4 I have taken into account the parties' contentions, above. Indeed Order 19 rule 2 (c) of the High Court (Amendment) Rules, S. I. No. 58 of 2020, requires that a witness statement should make reference to the documents relied upon in the bundle of documents. The purpose for such a requirement is to expedite the hearing of the matter. A witness statement, complete with reference to documents in the bundle of documents, is for all intent and purposes evidence in chief. Once a witness produces his witness statement in evidence, the next step is his cross examination. 11.5 In casu, it is not in dispute that the Plaintiffs witness statement did not make reference to documents in the Bundle of Documents upon which the Plaintiff was relying. This is clearly an irregularity. I, however, note that the documents the Plaintiff intends to rely on, as submitted by C a m S c a n n e r J36 Mr. Chabu, are the same documents the Defendants relied upon in their evidence. 11.6 The documents being the same, I shall proceed to determine the case on the basis of the documents agreed upon by the parties, and which the Defendants relied on. i. Plaintifrs claims 11. 7 Coming to the main issue, the case for the Plaintiff is that the Plaintiff and the 2nd Defendant entered into a tenancy agreement for the lease to the Plaintiff of the 2 nd Defendant's two fuelling stations. The Plaintiff contended that the 2nd Defendant, through its Director, the 1st Defendant, unlawfully terminated the tenancy. However, the Kitwe High Court, in a matter between the Plaintiff and the 2nd Defendant, under Cause No. 2020/HK/224, found the termination unlawful and declared the Plaintiff as a statutory tenant. C a m S c a n n e r 11.8 The Defendants, in disregard of the Kitwe High Court J37 Judgment, and in bad faith, proceeded, on 25th September 2020, to serve upon the Plaintiff notices to terminate tenancies. The tenancies were to terminate on 30th March 2021. The reason for termination was indicated in the notices as the failure by the Plaintiff to ensure constant supply of fuel and other lubricants for retail to the public. 11. 9 The Plaintiff now seeks a declaration that the decision to terminate the tenancy was unlawful; and a further declaration that the Plaintiff is the legal tenant of the business premises in issue. 11. 10 On the other hand, the Defendants contend that the Kitwe High Court Judgment did not declare the Plaintiff as a statutory tenant. The Defendants argued that the Court in the foregoing case did not preclude them from terminating the tenancy, if done in accordance with the law. C a m S c a n n e r J38 11.11 The Defendants asserted that, following the directive by the Court in the said judgment, the Defendants followed the law espoused in the Landlord and Tenant (Business Premises) Act, to lawfully terminate the tenancy agreement. 11.12 I have considered the parties' contentions, above, and have perused the Judgment referred to. In the said case, the 2nd Defendant had served notice upon the Plaintiff to terminate the tenancy agreement between the parties, which notice did not comply with the procedure elucidated in the Landlord and Tenant (Business Premises) Act. Consequently, the Court held thus: "I, therefore, hold that the purported notice by the Respondent (the 2nd Defendant herein), to terminate the tenancy in issue, was irregular and of no effect. The Respondent could have only lawfully terminated its tenancy agreement with the Applicant (the Plaintiff herein) if it had properly complied with provisions of the Act. Consequently, I find merit in the Applicant's action. I hold that the Applicant is still legally entitled to continue C a m S c a n n e r J39 occupying the subject filling stations unless and until the Respondent lawfully terminates the tenancy agreement in accordance with the Act." (Emphasis by underlining supplied). ( 11.13 From the foregoing excerpt of the Kitwe High Court Judgment, it is clear that the initial procedure employed by the 2 nd Defendant to terminate the tenancy in respect of the two premises, contravened the Act. The Court, therefore, held that the purported termination, which was against the Act, was in the circumstances, irregular and of no effect. 11.14 The Court further stated that the 2nd Defendant could only lawfully have terminated the tenancy if it had complied with the law. For the aforementioned reasons, the Court found the Plaintiff to be "still legally entitled to continue occupying the subject filling stations unless and until the Respondent lawfully tenninates the tenancy agreement in accordance with the Act." C a m S c a n n e r , 11. 15 By the Court using the words 'unless and until', when J40 allowing the Plaintiff to continue occupying the demised properties, it meant that the occupation was not for an indefinite period. It was to determine upon the 2 nd Defendant lawfully terminating the tenancy agreement in accordance with the Act. 11.16 I hold, therefore, that the Plaintiffs continued occupation of the 2nd Defendant's premises was not to be in perpetuity. It was to determine upon the 2nd Defendant lawfully terminating the tenancy in accordance with the procedure elucidated in the Landlord and Tenant (Business Premises) Act. 11.1 7 It is not in dispute that, following the Kitwe High Court Judgment, the 2 nd Defendant issued to the Plaintiff, notices to terminate the tenancies in issue, which they avow, was done in accordance with the law. 11.18 The question to resolve is whether or not the termination of the tenancy agreements in respect of the subject fuelling C a m S c a n n e r J41 stations by the 2 n d Defendant was unlawful. As already alluded to , above, the Defendants assert that the termination was done in accordance with the Landlord and Tenant (Business Premises) Act. They avowed that the Plaintiff was given six months' notice to terminate the respective tenancies as required by Section 5 of the Act. 11.19 Section 5 of the Landlord and Tenant (Business Premises) Act provides the procedure of legally terminating a tenancy by giving notice of not less than six months, and not more than twelve months before the date of termination specified in the notice. 11.20 The pertinent part of Section 5 of the Act enacts as follows: "5. (1) The landlord may terminate a tenancy to which this Act applies by a notice given to the tenant in the prescribed form specifying the date on which the tenancy is to come to an end (hereinafter referred to as "the date of termination"): C a m S c a n n e r J42 Provided that this subsection shall have effect subject to the provisions of section twenty-three as to the interim continuation of tenancies pending the disposal of applications to the court. (2) Subject to the provisions of subsection (3), a notice under subsection (1) shall not have effect unless it is given not less than six months and not more than twelve months before the date of termination specified therein. (5) A notice under this section shall not have effect unless it requires the tenant, within two months after the giving of the notice, to notify the landlord in writing whether or not, at the date of termination, the tenant will be willing to give up possession of the property comprised in the tenancy. (6) A notice under this section shall not have effect unless it states whether the landlord would oppose an application to the court under this Act for the grant of a new tenancy and, if so, also states on which of the grounds mentioned in section eleven he would do so ." C a m S c a n n e r 11.21 It is trite that once a Section 5 notice is served upon the J43 tenant, he is required within two months after the giving of the notice, to notify the landlord in writing, whether or not a t the date of termination he will be willing to give up possession of the property comprised in the tenancy. The landlord too, is required to state whether he would oppose an application to the court for the grant of a new tenancy. If so, he is required to also state on which of the grounds mentioned in Section 11 he would do so. 11.22 The grounds which the Landlord can state in the notice to lawfully oppose the tenant's application for a grant of a new tenancy, as set out in Section 11 of the Act, includes among others, the tenant's persistent delay in paying rent. It also extends to the tenant's substantial breaches of his obligations under the current tenancy, or for any other reason connected with the tenant's use or management of the holding. 11 .23 In casu, I have scrutinized the two notices in issue on pages 31 and 34 of the Defendants' Bundle of Documents. I C a m S c a n n e r J44 note that the 2 nd Defendant notified the Plaintiff of the requirement of the Plaintiff, as tenant, to, within two months after giving the notice, notify the 2nd Defendant in writing, whether or not at the date of termination, it will be willing to give up possession of the two fuelling stations in question. 11.24 Although the Plaintiff in its submission contended that the 2nd Defendant did not state whether it would oppose the Plaintiffs application to the court for the grant of a new tenancy, a scrutiny of the notices, however, particularly in paragraph three, shows that the 2nd Defendant stated that it would oppose the Plaintiffs application. The 2 nd Defendant even outlined the grounds upon which it would oppose the Plaintiffs application for a new tenancy. 11.25 The question to consider is whether or not the grounds stated by the 2 nd Defendant in the notices are the ones mentioned in Section 11. I have scrutinized the grounds stated in the notices, which are, delay in paying rent; and failure to ensure constant supply of fuel and other C a m S c a n n e r J45 lubricants for retail to the public at the said premises . I find that the grounds set out in the notices by the 2 nd Defendant for its intention to oppose a court's grant of a new tenancy are ones mentioned in Section 11 of the Act. 11.26 It is my considered view that the need for the landlord to state the grounds in the notice, of his objection to the Court's grant of a new tenancy, do not require him to prove the grounds. He can only be required to prove if the tenant makes an application under Section 6 for a new tenancy. The grounds in the notice only serve to inform the tenant and the court of the landlord's intention to oppose the Court's grant of a new tenancy, and the reasons for such opposition. In the present case, there is no application by the Pla in tiff for a new tenancy. 11 .27 Having scrutinized th e no tices in issu e, I am sati s fi ed th at th e notices, which a re in the prescribed form, specified the da te of 30 th Ma rch 2021, as the da te on which the ten a ncy was to come to an end . Fu rth er, the Pl aintiff was C a m S c a n n e r J46 given six months' notice before the date of termination as required by Section 5 (2) of the Act. 11.28 Consequently, I am satisfied that the termination of the tenancies for the two stated fuelling stations was, in the circumstances, properly made in accordance with the Landlord and Tenant (Business Premises) Act. Accordingly, the Plaintiffs claim for a declaration that it is the legal tenant of the business premises situated at Kalulushi, along Kitwe-Kalulushi Road, Kalulushi; and Masansa, along Mkushi Copper Mine Road, Mkushi, fails. 11.29 Therefore, the Plaintiffs action fails in its entirety and I accordingly, dismiss it. I order the Plaintiff to yield vacant possess10n of the two fuelling stations in issue to the 2nd Defendant within fourteen days of the date of this Judgment. ii. Defendants' Counterclaim C a m S c a n n e r 11.30 With regard to the Defendants' counterclaim, having J47 found that the termination of the tenancies was done in accordance with the Act, I order that the 2 nd Defendant takes possession of the two premises, namely, Plot Number KALUL/LN-1004233-207, Kalulushi, and Subdivision No.1 of Subdivision G of Farm 3323, Mkushi, within 14 days of the date of Judgment. 11.31 The Defendants claim a sum of K539, 093.71, being arrears due as at 1st March 2022. The Plaintiff denies owing the aforementioned rental arrears. 11.32 The Defendants further claim mesne profits at the rate of KS0, 000.00 and K40, 000.00 per month, respectively, from the date of the Notices to terminate tenancies until possession is delivered up. 11.33 In the case of PETER MILITIS Vs. WILSON KAFUKO CHIWALA6 , the Supreme Court defined mesne profits as follows: C a m S c a n n e r J48 "What is mesne profits and when are they due? In Halsbury's Laws of England, Vol. 28, 3rd edition at page 561, paragraph 1230, the legal position is that the landlord may recover in an action for mesne profits damages which he has suffered through being out of possession of the land. Mesne profits, being damages for trespass, can only be claimed from the date when the defendant ceased to hold the premises as a tenant and became a trespasser. The action for mesne profits does not lie unless either the landlord has recovered possession or the tenant's interest in the land has come to an end." 11.34 In casu, the mesne profits claimed are the rental arrears due to the 2nd Defendant from the date of expiration of the Notices to terminate tenancies until possession is delivered up. The date of expiration, according to the Notices to terminate tenancies exhibited, was 30th March 2021. Ordinarily, the mesne profits claimed should be for unpaid rent for the period from 30 th March 2021 until the Plaintiff deliver up possession of the two premises in question to the 2nd Defendant. C a m S c a n n e r ◄ 11.35 It follows therefore , that the K539, 093. 71 claimed, being J49 arrears of rent due as at 1st March 2022, would include the amount that would be found due under the claim for mesne profit. In order to properly calculate the amount which is due to the Defendants in mesne profits, the same shall be calculated from 30 th March 2021 the date when the notices expired. 11 .36 As for the amount due before the expiration of the notices to terminate, the Defendants relied on the two letters authored by their Advocates which were written to the Plaintiffs Advocates, demanding payment of rental arrears for the period from December 2020 to 9 th February 2021. The two letters in question are on pages 37-40 of the Defendants' Bundle of Documents. 11.37 The fir s t letter, which is on pages 37-38, is dated 9 th February 20 2 1. Th e renta l a rrears due as a t 9th Fe bruary 2021 were indicated to h ave been K20 4, 0 9 3. 7 1. In the le tter d a ted 7•h Jun e 20 2 1, th e 2 nd De fend a nt asserted that the Pl a intiff pa id to the 2 nd Defend a nt Kl80, 000.00 CamScanner JSO towards the rental arrears. In order to find the correct amount owing for the period ending 30th March 2021, when the tenancy determined, I shall refer the matter to the Registrar for assessment of the quantum due. 11.38 As for mesne profits, it is not in dispute that the Plaintiff owes the 2 nd Defendant rental arrears accrued covering the period after the termination of the tenancies, 30th March 2021, to the date when the Plaintiff shall deliver up possession of the premises to the 2 nd Defendant. 11.39 I refer the calculation of the quantum of the mesne profits to the Registrar for assessment. Rentals paid by the Plaintiff within the aforementioned period should be taken into account in the computation of the total amount due. 11 .40 The Defendants also claimed damages for trespass. Having ordered the Plaintiff to pay mesne profits, damages for trespass are not recoverable, because it is trite that mesne profits are in the nature of damages for trespass. The learned authors of Atkin's Court Forms 2 nd Edition CamScanner r e n n a c S m a C J51 Vol. 24 (1) 1995 Issue at page 49 paragraph 22, states thus: "If the tenant remains in occupation or otherwise keeps the landlord out of the premise after a lease or tenancy has been forfeited, he is liable to pay mesne profits, which are in the nature of damages for trespass. ... Mesne profits are assessed on the basis of the value of the promise at the time ... " (Emphasis by underlining mine) 11.41 For the reasons stated above, I decline to award the Defendants damages for trespass. 11.42 The Defendants further claim damages for breach of contract. Damages for breach of contract, according to the learned authors of Halsbury's Laws of England 4th Edition (Reissue) 1998, Vol. 12 (1), are meant to compensate the innocent party and repair his actual loss. Compensation is normally achieved by placing the innocent party in the same position, so far as money can do, as if the contract had been performed. "' J52 r e n n a c S m a C 11.43 Further, the Supreme Court in the case of ZAMBIA STATE INSURANCE CORPORATION Vs SERIOS FARMS LIMITED7 , stated that: "As the learned authors of Chitty on Contracts, 25th Edition, point out at paragraph 1704, damages for breach of contract normally relate to financial loss." 11.44 In the present matter, I hold that the financial loss which the 2nd Defendant suffered was the rental arrears owed by the Plaintiff. Having already ordered that the Plaintiff pays all the rental arrears owed to the 2 nd Defendant, I am satisfied that the 2nd Defendant would be placed in the same position, so far as money can do, as if the contract had been performed. Accordingly, the Defendants' claim for damages for breach of contract is refused. 11 .45 All the sums found due shall attract interest at short term bank deposit rate from the date of the counterclaim to the date of judgment and, thereafter, at the current bank r e n n a c S m a C J53 lending rate approved by the Bank of Zambi a to the d a te of payment. ( 12.0 CONCLUSION 12.1 The upshot of the Judgment is that the Plaintiffs action fails and is dismissed. The Plaintiff is ordered to yie ld vacant possession of the two premises in question , to the 2nd Defendant, within 14 days of the date of Judgment. 12.2 On the other hand, the Defendants' counterclaim succeeds to the extent that they are awarded payment of rental arrears accrued for the period preceding the date of termination of tenancies on 30th March 2021. The Defendants are further awarded mesne profits for the unpaid rentals for the period from 1st April 2021 until when the Plaintiff shall deliver up possession of the two premises in question to the 2nd Defendant. The quantum of the two shall be assessed by the Registrar. r e n n a c S m a C J54 12.3 With regard to a claim for damages for trespass and breach of contract, the same have been refused. Costs shall be for the Defendants against the Plaintiff, to be truced in default of agreement. 12.4 Leave to appeal is granted. DELIVERED AT NDOLA THIS.~~AY OF ... ~ ..... 2025. Ats LADY JUSTICE M. C. MULANDA HIGH COURT JUDGE