Charles Mpundu v Food Reserve Agency (2018/HP/2182) [2022] ZMHC 34 (11 May 2022)

·-----·~ IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: CHARLES MPUNDU AND 2018/HP/2182 PLAINTIFF FOOD RESERVE AGENCY DEFENDANT BEFORE HON. JUSTICE ELITA PHIRI MWIKISA FOR THE PLAINTIFF: MR. B. SITALI OF MESSRS BUTLER & COMPANY, LEGAL PRACTITIONERS FOR THE DEFENDANTS: MR. A. CHEWE ASSISTANT LEGAL COUNSEL Ci JUDGMENT Cases Referred To: I 1. 2. 3. 4. Peter Militis v Wilson l(afuko Chiwala (2009) ZR 34 Edson Mwanza v Chibuluma Chati Farms Ltd & Others Appeal/ 186/2019 Tuesday Mulenga v Wendy Tembo Mutambo Appeal No. 123/2009 Cameo Equipment Zambia Limited v Percy Chanda Appeal No. 21/2017 Other Works Referred To: 1. I-falsbury's Lau;s of England, Vol. 27(1), 4 th Edition (reissue) at page 240 paragraph 258 J1 This matter was commenced by way of writ of summons and statement of claim dated 19th December, 2018. The Plaintiff's claim was that by a written lease agreement dated 29 th December, 2014 , the parties herein entered into a lease agreement for a term of twelve months effective 1s t January, 2015, to 31 st December, 2015, lJ at a monthly rental of K15,778.00. The Plaintiff pleaded that it was a term of the said lease under Clause 1 (xii) that the Defendant would yield up the demised premises and all fittings and fixtures therein in a tenantable repair and condition. The Plaintiff averred that the Defendant could terminate the said lease by giving three months ' notice in writing. The Plaintiff further stated that by a letter dated 10th November, r · 20 16, the Defendant advised the Plaintiff of its desire to renew the lease. However, tha t the Defendant withdrew its earlier decision to renew the lease by a letter dated 22nd Noven1ber, 2016. The Plaintiff stated that the Defend ant, h aving notified the Plaintiff that it would no longer be r enewin g the leas e, was required to yield up the demised premises in a tenantable repair and condition. The Plaintiff stated that despite the parties having jointly inspected the demised premises and identified the repairs that required to b e carried out, the Defendant failed to attend to the repairs and J2 I l continued to hold on to the keys to the demised premises. That the Plaintiff did not yield up the demised premises into tenantable repair until October, 2017, when it completed the rehabilitation works. The Plaintiff averred that for a period of ten months, from 31 st December, 2016, to October, 2017, the Defendant did not pay the Plaintiff any rent. The Plaintiff averr ed tha t the Defendant has refused, neglected or failed to pay the sum ofK157,780.00 to the Plaintiff despite several reminder s an d that as a consequence, the Plaintiff has suffered loss and damage. The Plaintiff claimed: mesne profits for loss of use of th e demised premises occasioned by the Defendant amountin g to Kl57 ,780 .00 for 10 months from January, 2017, to . October, 20 17 , at the ra te of KlS,778.00 per month; interest on all amounts found due; costs of and incidental to these proceedinas· C,) and such other relief as the Court m ay consider appropriate. On the other hand, the Defendcu1t filed its m emorandum of appearance and defence on 3 rd January, 2019. The Defendant averred that by letter d a t ed 22nd November, 2016, it withdrew its earlier notice of intention to r en ew the lease agreement, which communication was accepted by the Plaintiff in a letter d ated 17th January, 2017. The Defendant averred further that the Plaintiff J3 then proceeded to engage the Defendant in the repairs of the said premises. It was the Defendant's further plea that for a period of ten months, several meetings and negotiations between the Plaintiff and the Defendant were held, as evidenced by letters and emails dated 17th January, 2017, 18th January, 2017, 26 th May, 2017, 1st June, 2017, 15th June, 2017, 16th June, 2017, and 19 th ·,;{ June, 201 7. The purpose of which was to assess the damage and repairs required to b e done to the said premises. The Defendant added that it agreed to repair and paint the premises but that a tirne frame was not set for effecting the said repairs. That during the entire time the agreed repair works were being effected, the Plaintiff did not make any d emand for the Defendant to surrender the premises. Further, that the Plaintiff had assigned control of the premises during th e entire time to a new tenant who took possession of the keys and employed his own security guards to guard the premises. That the Defendant therefore only had limited access to the said premises. The Defendant v.rent further to aver that the said premises h a ve since been painte d and repaired in accordance with the lease a greement. The Defendant also averred that for the purposes of effecting the repair and paint works, there was no agreement b etween the J4 l 'r parties to pay for the premises during the time the repairs were being effected to the premises. The Defendant stated that the Plaintiff has neither suffered loss nor damage and that the Plaintiff is therefore not entitled to any reliefs set out in the statement of claim. The Plaintiff filed a reply dated 3 rd September, 2020. It was averred therein that the notice of non-renewal of the lease was acknowled ged by the Plaintiff and that a demand was made for the Defenda n t to m ake p ayment in lieu of notice as well as for it to arrange for handover of the premises after due restoration of the property in a ten a nta ble state. That the demand was for the Defenda n t to imrnedia tely undertake repairs but that the Defend ant claimed tha t it needed to go through its procurement processes a nd further that its team was busy with other projects until 4 th June, 2 01 7, when a joint inspection of the premises was undertaken. It was further averred that after the inspection, the parties agreed that they would work with average quotations in a bid to stop incurring further rental costs on the premises. That the Defendant was to provide the average repair amount in respect of rep a ir costs to the Plaintiff but that the Defendant later changed JS l } :/ "- its position on the matter and indicated that it would do the repairs itself. The Plaintiff also stated that in a letter dated 20 th June, 2017, written by his then advocates, the Plaintiff informed the Defendant that repairs were to be attended to within a period of three weeks and were to be concluded by 11 th July, 2017. It was stated that the Defendant did not object to the said time frame. The Plaintiff a lso averred that he never assigned control of the premises to a n ew tenant and that the keys to the premises were in the custod v of th e Defendant's employees and caretakers. He sta ted th at the keys were only retrieved from the Defendant's careta kers or employees on 8 th September, 2017, and that as a result, the Pla intiff had no access to the premises until after the keys were handed over. It was also averred that the Plaintiff only got involved in providing quotations after the Defendant had failed and frustratingly delayed to undertake the works at which point the Plaintiff insisted on having other contractors do the work but that the Defendant insisted that it was its duty to control the process and follow its procedures and regulations. J6 i l J i • The Plaintiff went on to state that the Defendant had requested that the Plaintiff waives the rental post December, 2016, but that the Defendant did not grant the said request and that the Plaintiff clearly indicated that rentals would be due until the rehabilitated and tenantable property had been handed over. It was averred that the Defendant was not hampered in any way and the dates when the handovers took place were very clear. The Plaintiff averred that he is therefore entitled to the reliefs sought and that in December, 20 18 , a fter this action had been commenced, the Defendant paid a n amount of K2 8 ,000.00 as part payment towards its in d ebtedness to the Plaintiff. Wh en th e matte r cam e up for trial, the Plaintiff was the only ( witness. PW 1 testified that he and the Defendant herein had a landlord/ten a nt r ela tionship as shown by the lease agreement at page 1 of the Pla intiff's bundle of documents. PWl told the Court that the last le ase was for the period 1 st January, 2016, to 31 st December, 2016, at Kl5,778 payable six months in advance. PW 1 testified that as per lease agreement, there was a requirement to give three months' notice if the Defendant was going to continue with the tenancy the fallowing year. It was PW 1 's evidence that in October, 2016 , there was a discussion on the need for renewal of J7 the lease and that after the parties had agreed to the said renewal, the Plaintiff was surprised to receive a letter from the Defendant on 22nd November, 2016, withdrawing the renewal. He testified that he wrote a letter, emails as well as made phone calls to the Defendant to follow up on the same but that the Defendant only responded on 23rd May, 2017. PWl narrated that after that, inspection of works by both parties was done at the d emised premises on 4th June, 2017, and PW 1 was then asked to get three quotations which he forwarded to the Defendant. PW 1 stated that the quotations were received and acknowledged by the Defendant on 17 1h June, 2017. PWl testified that the Defendant responded to his letter stating that it would undertake the works in the shortest r: · time possible but nothing happened for the months July, August and Sep tern ber. PW 1 told the Court that in September, he got a number of inquiries from people who wanted to lease the premises as they were unoccupied . PW 1 testified that the premises were also being vandalised in the process. PW 1 narrated that since he was losing money, he informed the Defendant's property Manager, one Mr Mwape, that he was going to undertake the works himself. That at that point, the Defendant's caretaker had the keys to the ware house. PWl then arranged for J8 the keys to be taken from the said caretaker and the said keys were ) { handed over and signed for by two people from the Defendant and two other people from a potential tenant. PWl further told the Court that the Defendant then informed him that it had just finalised its procurement process and that PW 1 should not proceed to undertake the works himself as it would be sending a contractor whom it had identified to undertake the said works. However, that this did not happen until the end of October, 2017, when the Defendant went to Kawambwa to complete the works, as shown by the completion certificate at page 32 of the Plaintiff's bundle of documents. PW 1 stated that he accepted the completion certificate in accordance with the lease agreement. PW 1 prayed tha t thi s Court orders compensation for the ten months up to October, 2017, when the works were completed. Under cross-examination, PW 1 testified that according to his statement of claim, h e was claiming mesnes profits. He told the Court that the Defendant had the keys to the ware house up to September, 2017, and that he never interfered with the tenancy. PWl admitted that there was a hand over of keys in September, 2017, to the Plaintiff's new tenant but that the said new tenants could not occupy the premises because the repairs had not yet J9 been undertaken. PW 1 also admitted that in his examination in , chief he stated that there was a handover of keys which was reduced in writing in September, 2017, and conceded that there was no evidence produced in Court to prove that. PW 1 also admitted that the notice to terminate the lease dated 22nd November, 2016, as shown at page 14 of the Plaintiff's bundle of documents, not only informed him that the lease was being terminated but that it also requested that he facilitates the smooth h and over of the premises on the final date as per notice. PW 1 a dmitted tha t according to the Defendant, in the letter dated 23 rd M ay, 2 017 , a t page 19 of the Plaintiff's bundle of documents, it h e ld on to th e property until January, 2017. He testified that in re la tion to the three months' payment in lieu of notice, the idea was to cover the period of three months from 22nd November, 2016. Tha t is to say 22 nd November, December, January and February. PW 1 testified that the response in the letter of 23rd May, 2017, was specific to the payment in lieu of notice and does not talk about the Defendant holding on to the property after January, 2017. PW 1 also conceded that the email at page 1 7 of his bundle of documents, stating that rentals should continue to b e paid by the J10 Defendant up to the time it hands over a rehabilitated property, was sent to his lawyers and not the Defendant and that there is no letter from the Defendant acknowledging receipt of the same on record. PW 1 testified that the Defendant had access to the premises in ( issue for the purposes of effecting repairs and that it was therefore not accessing the premises without his permission. PW 1 added that the Defendant had the keys up to September, 2017, and that the Defendant therefore did not need his permission as it was in occupancy still. That the fact that the Defendant held on to the keys meant Lhat the Plaintiff was losing income and it cost the Plaintiff money a lthough this evidence did not appear in the bundle (' of documents. PW 1 testified further that there were negotiations for repairs between January, 2017, and November, 2017 . PWl testified that he wanted the Defendant to fix or install electricity but that the Defendant refused to do so since there was no electricity at the time it initially moved there. PWl told the Court that the delay in repairs were not caused by the said negotiations as the Defendant was just buying time. Jll DW 1, one Osward Sikazwe, a leasing officer at the Defendant Agency testified that his duties include managing the leasing activities of the Defendant to maintain an inventory for t he Defendant of private properties which are rented and those owned by it. DWl testified that in August, 2016, the Defendant entered into a lease aareement with the Plaintiff herein for the property in b issue for a period of one year, as shown at pages 1-9 of the Defendant's bundle of documents. DW 1 went on to give evidence tha t in November, 2016, the Defendant decided to give notice of its intention of non-renewal of the lease upon its expiration on 31 st December: 20 16, which notice was acknowledged by the Plaintiff as eviden ced by the letters and emails on record. DW 1 stated that the Defenda n t's officers moved the stock from the premises in issue in November and by December, 2016, the property was vacated and handed over to the Plaintiff. DW 1 testified that the Plaintiff made a demand for the Defendant to repair the premises and that a meeting was held sometime in May, 2017, to discuss the issues raised by the Plaintiff. That in the said meeting, it was agreed that the Defendant pays the 2016, rate of K15,778 x 2 months in lieu of notice . That it was also agreed that the premises b e put in tenantable repair but that the p arties J12 did not agree on a specific period of time within which to work on the said premises. DWl testified that a letter was written to the Plaintiff highlighting what had been agreed by the parties as shown at page 17 of the Defendant's bundle of documents. He testified that the works were done in September, 2017. ( Under cross-examination, DW 1 told the Court that the handover was done in October/November after the rehabilitation works were completed. He reiterated that there was no time frame given in the m eetings within which to finish the works. DWl however conceded that according to th e letter dated 1 st June, 2017, at page 18 of the Defendant's bundle of documents, three weeks was the time frame within which the works were required to be finished. Further that (, the letter a t page 19 of the Defendant's bundle of documents is also proof th a t the Plaintiff referred to a period of three weeks within which the Defendant was to conclude works at the premises. DW2, John Bowas Bwale, a property manager in the employ of the Defendant told the Court that during the course of his duties, he came across facts pertaining to this case. He testified that in 2016 ' the Defendant rented a storage shed belonging to the Plaintiff for the sole purpose of storing maize for the Defendant. J13 DW2 gave evidence that at the end of December, 2016, the Defendant vacated the premises in issue and handed over the keys to a Mr Alfred Mpundu who was representing the Plaintiff. DW2 testified that the Plaintiff had actually accepted the Defendant's intention to vacate although in January, 2017, the Plaintiff wrote a letter to the Defendant stating that it had breached the lease agreement because it did not give the three months' notice as required. That in the same letter, the Plaintiff demanded that the Defend a n t reh a bilitates the premises and further that a withholding tax certificate for the lease period be made available to th e Pla intiff. DW2 a lso told the Court that the Plaintiff also requ ested Lo be pa id p enalties for late payments of rentals during the lease peri od . He testified that this culminated into a meeting of 23 rd May, 2017. DW2 testified that all the issues discussed at the said meeting were reduced into writing by letter dated 1 st June, 2017. That on 4 th June, 2017, a team from the Defendant's office went to Kawambwa to go and assess what works needed to be done in the presence of the Plaintiff. DW2 testified that the back and forth between the parties led to the late execution of the works as the parties could not agree on wh a t needed to be done , as evidenced by the letter at page 29 of J14 the Defendant's bundle of documents. DW2 also testified that the procurement process took long and that after the procurement was done the Defendant assembled a team to go to Kawambwa in ' June, August and September, 2017. DW2 testified that the Defendant however found another tenant at the premises which made it difficult for the Defendant to access the premises as the f new tenant was in possession of the keys to the premises. Under cross-examination, DW2 testified that he never received the em ail at page 17 of the Plaintiff's bundle of documents because it was addressed to the Plaintiff's lawyers. With regards the email da ted 3 rd February, 20 17, DW2 testified that he received the said e1na il from the; Plaintiff reminding him of the letter of 17th January, 2017, a nd informing him that rehabilitation of the premises had not yet b een done. DW2 told the Court that blame should be placed on the Plaintiff because of the back and forth and failure to agree on the works that needed to be done. DW2 admitted that the Plaintiff was eager to have the works completed within the shortest possible time as shown by letters at pages 21 and 29 of the Plaintiff's bundle of documents. DW2 also told the Court that page 31 of the Plaintiff's bundle of documents sta tes that the Defendant would undertake the works upon J1 5 completion of a lengthy procurement process and considering the distance the works would be completed within the shortest period ' of time. I have carefully considered the evidence on record as well as the submissions made by Counsel from both sides. The Plaintiff herein ( claims mesne profits for loss of use of the · demised premises, interest on all amounts found due, costs and any other relief that this Court d eems fit. The Suprcrne Court in the case of Peter Militis v Wilson Kafuko Chiwala (2009) ZR 34 1 , which Counsel for the Defendant herein n1a d e re feren ce lo, had occasion to define mesne profits. It stated: "What is mesne profits and when are they due? In Halsbury's Laws of England, Vol. 28, 3 rd 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 tre spasser. 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." The learn ed authors of Halsbury's Laws of England, Vol. 27(1), 4 th Edition (reissue) at page 240 paragraph 258 had this to say on the subject: "The landlord may recover in an action for mesne profits the damages which he has suffered through being out of J16 possession of land or, if he can prove no actual damage caused to him by the defendant's trespass, the landlord may recover as mesne profits t he value of the premises to the defendant for the period of the defendant's wrongful occupation ... . Mesne profits, being a type of damages for trespass, ma~ be recovered in respect of the defendant's continued occupa!1on ~nly after the expiry of his legal right to occupy the premises. It is clear from the authorities above that for one to claim mesne profits, it must b e proved that he/ she, as landlord, suffered ( through being out of possession of his land and further that the perso n in occupation of the land has become a trespasser. I am fortified by th e Court of Appeal in the case of Edson Mwanza v Chibuluma Chati Farms Ltd & Others Appeal/ 186/20192 where it s tated tha t: "It is clear from the foregoing authority that mesne profits can only be awarded to a landlord where a tenant overstays after the end of the tenancy and becomes a trespasser." Furthermore, the Suprem e Court in the case of Tuesday Mulenga v Wendy Tembo Mutambo Appeal No. 123/20093 stated thus: "The case law stated and other authorities referred to, all underscore two situations only, which entitle a landlord to recover mesne profits as a relief. The 1 st is where the evidence reveals that a de facto landlord and tenant relationship had in fact existed between the parties; and the landlord has been denied vacant possession of his property without justifiable cause. The second, is when the parties had entered into a contract for the sale of property in issue and had further agreed that rent will be payable by one to the other, pending completion or where completion, has taken place by e xecution J17 of the c ontract of sale, but the contracting purchase r is de nied vacant possession by t h e vendor without justifiable cause." In casu, the evidence placed before me has clearly disclosed that the r elationship between the parties herein was tha t of landlord and tenant and that the tenancy agreement between the parties determined on 31 s t December , 2016. This is not disputed. It is clear ( from the foregoing tha t the issue to b e determined herein is whe ther or not the Plaintiff is entitled to mesne profits. The questions th a t must b e a nswered are therefore whether or not the Pla intiff, as landlord , s uffere d through being out of possession of his property after th e ten ancy a greement terminated and whether the Defendant was a trespass er in order for the claim of mesne profits to s u cceed. Cou nsel for the Defenda nt, in the written submissions, contended th at the Pla intiff h erein h as no t established that he is entitled to a n order for p aym en t of m esn e profits for two r easons: firstly, that th e Plaintiff has not proved that the Defendant was in possession of the d emised premises during the p eriod of time in issue and secondly that the record shows tha t the Defendant, had, with the consent of the Plaintiff, m e re access to the demised premises dur ing the course of time in issue, in order to do r epairs. J18 In response to the argument above, Counsel for the Plaintiff submitted that although the lease agreement was terminated on 31 st December, 2016, by the Defendant, the Defendant did not undertake the repairs to render the premises tenantable, as required under the lease agreement, until 1 st November, 2017 , C thus preventing the Plaintiff from letting out the premises to another t enant. Further that the Defendant only formally handed over the property to the Plaintiff on 1 st November, 201 7, after the repair works were done. Counsel for the Plaintiff argued that until the property was repaired and formally handed over to the Plaintiff, the Defendant had technically remained in occupation. Counsel contended that the Defendant had constructive possession of the property. In relation to th e question whether the Defendant was a tresp asser, I find that the Defendant h erein was not a trespasser as PWl clearly indicated that the Defendant did not access the premises without his authority. In relation to whether or not the Defendant herein held over thereby depriving the Plaintiff possession of his property, PW 1, the Plaintiff herein, in his examination in chief testified that the Defendant did not handover on 31 st December, 2016, when the J19 • J. lease agreement was terminated. He testified that he followed up the same by letter dated 17th January, 2017. A p erusal of the said letter, at page 16 of the Plaintiff's bundle of documents, shows the following statement: C "Action Required- arrange to restore the property immediately to tenantable levels and arrange for a formal handover. I am on standby if you can indicate a firm date for the inspection and handover." The last paragraph of the same letter stated: "I look forward to your handover of the property and payment of the amounts due .... " PW 1, in examination in chief, also testified that the Defendant's caretaker h a d the keys to the premises in issue up to 8 th September , 2017, wh en he then arranged for the keys to be retrieved fro1n the said caretaker. PW 1 testified that when the keys were being handed over in September, 2017, they were signed for by representatives of the parties h erein and the would be new tenants of the premises. I note that PW 1 however failed to produce the said signed do cum en t to corroborate his testimony and he conceded to this in cross-examination. As stated, the burden was on the Plaintiff to produce the said document which was signed to show that indeed the keys were only handed over to the Plaintiff or his representatives by the Defendant in September, 2017. I find no J20 other evidence on record to corroborate the evidence given by PW 1 in relation to this. In addition, DW2 testified, during examination in chief, that the lease was up to December 2017, but that the Defendant vacated the premises in issue in November, 2017, after it removed all its stock and that the keys were then handed over to one Mr Alfred Mpundu. This evidence was not challenged by the Plaintiff during C cross-examination. In light of the foregoing, I find that the Plaintiff herein has failed to prove that the Defendant only handed over the keys to the premises in issue on 8 th September, 2017, thereby entailing that the Defendant held over the property until September, 2017. I am therefore of the considered view that the Plaintiff has not shown that he was out of possession of his property until 8th September, 2017. I however find that the Defendant herein held on to the property until January, 2 01 7, because it stated so in its letter to the Plaintiff dated 23 rd May, 2017. In r esponse to the said letter, the Plaintiff on 1 st June, 2017, in a letter at page 21 of the Plaintiff's bundle of documents stated as follows: J21 ; ) I "Our client takes note of your offer to pay 2 months rentals in lieu of notice, but insists that in consideration of the rental income loss arising from their having been no proper handover as admitted by yourselves, you afford him three months rental in lieu of notice." I note that PW 1 testified that this was made in reference to payment in lieu of notice and not holding over. I however hold the view that the Plaintiff did not dispute the assertion that the ( Defendant held over the property up to the end of January 2017, in its response as shown above. It is fo r a ll the reasons stated above that I find that the Defendant herein only h eld over until January, 2017. The Defendant, having a cknowledged h olding over the premises until January, 201 7, I find the Defe ndant lia ble in damages for mesne profits for January, 2017 , a t th e ra te of Kl5 ,778.00. I cannot however ignore the fact that the Defendant herein was exp ected to leave the premises in a tenantable state as per agr eem ent. This fact is not disputed and the premises were indeed repaired as shown by the certificate of completion on record dated 1st November, 2017. I however hold the view that the Defendant h erein took too long to make the necessary repairs thereby depriving the Plaintiff of r ental income from other tenants. J22 I find that the Defendant took too long to repair the said warehouse as can be seen from the record, more so that it was a term of the ' \ I contract under clause 2 (ix) for the Defendant to yield up possession on tenantable repair and condition. For instance, the Defendant only responded to the Plaintiff's letter of 17th January, 201 7, on 23rc1 May, 201 7; the warehouse was only assessed in C June, 2017, works only started in September, 2017, as per evidence of DW 1, and works were only completed in October, 2017, as evidenced by the completion certificate dated 1 st November, 2017. This is despite the Plaintiff stating to the effect that the premises should be worked on in the shortest possible time as ackno,Nledged by DW2 and as shown by letter dated 1 s t June, 201 7 , a t page 20-2 1 of the Plaintiff's bundle of documents drafted ( as foll ows: "(b) ... Further should the Agency opt to undertake the rehabilitation as opposed to paying our Client the sum required for the works, there be a time frame of say three (3) weeks within which to complete the works. (d) ... . and the rehabilitation works being expedited and in any event concluded in not more than three (3) weeks." A further letter dated 20th June, 20 17, at page 27 of the Defendant's bundle of documents stated that the works b e attended to within the course of three (3 ) weeks and s hould b e J23 ,. ( concluded by or on 11th July, 2017. This letter also s p eaks to the intention of the Plaintiff to have the warehouse repaired within the shortest possible time. I do not find the excuse that procurement processes were lengthy, a good enough excuse to deprive the landlord of his property. Notwithstanding the fact that the Defendant is a Government Agency, I am of the considered view that a mechanism should be put in place to handle such cases timeously in order to avoid injury occasioned to persons as was the case h erein. Furtherm ore, I note that the Defendant argued that it found a tenant in the warehouse which proved to be a challenge for it to undertake repa irs. The Defendant has not provided proof of this ( a llegation a nd therefore this argument fails. I find that the failure by the De fcnda n t to repair the warehouse in time resulted in the Plaintiff's failure to put a n ew tenant in the said premises. As a result, I am of the considered view that the Plaintiff was deprived of rental income as the Defendant took too long to repair the premises in issue. I accordingly grant the Plaintiff's claims, namely; Mesne profits for loss of use of the demised premises occasioned by the defendant a1nounting to K157,780.00 for 10 months from January, 2017 to J24 October, 2017 at the rate of KlS,778.00 per month; plus, interest at the average of the short-term deposit rate per annum prevailing from the date of the writ to date of judgment and thereafter at the current bank lending rate as determined by the Bank of Zambia to date of payment; and I award costs to the Plaintiff to be taxed in default of agreement. Leave to appeal is granted. Dated at Lusaka the .... .././... ...... day of .... ~ ..... ~~--···• 2022 ·r~ · r1 JcCLU ................................ ELITA PHIRI HIGH COURT JUDGE ( ( J25