Chinyanta & Others v Alasia Building Construction Ltd & Another (Appeal 158 of 2015) [2018] ZMSC 305 (12 June 2018)

• •, IN THE SUPREME COURT OF H OLDEN AT NDOLA (Civil Jurisdiction) APPEAL N0.158/2015 Fitpu!Jl1~ J (/l)~ ·" ?,• ,., BETWEEN: IJP;,r. : · .t.q <-'[f~ . ' '1 OSCAR CHINYANTA AND 31 Q. T~., i~::_ / ' ....!.:.!:.·'.'.;' ' · ,, ~ AND PELLANT$ , ALASIA BUILDING CONSTRUCTION L~/r RESPONDENT TAP ZAMBIA LIMITED 2ND RESPONDENT CORAM: Hamaundu, Kaoma and Kabuka, JJS. On: 5th June, 2018 and 12th June, 2018. For the Appellant: Mr. M. Z. Mwandenga of MZ Mwandenga & For the Respondents: N / A Company JUDGMENT KAOMA, JS, delivered the judgment of the Court. Cases referred to: 1. Mwenya and Randee v Kapinga (1998) Z. R. 12 2. Kitwe City Council v Ng'uni (2005) Z. R. 57, 3. Chibwe v Chibwe (2001) Z. R. 1 4. Minister of Home Affairs and anr v Lee Habasonda (2007) Z. R. 2007 s. Wilson Masauso Zulu v Avondale Housing Project Ltd (1982) Z. R. 72 6. Liamond Choka v Ivor Chilufya (2002) Z. R. 33 7. Dutton and Others v Manchester Airport PLC (1999) 2 All ER 691 8. Attorney General v Marcus Kapumpa Acbiume (1982) Z. R. 72. 9. Greater London Council v Jenkins (1975) 1 WLR 155 10. Eyles v. Wells (1991) CA Transcript 376 ' J2 Legislation referred to: 1 . Rules of the Supreme Court 1999, Orders 2 and 113 2. High Court Rules, Chapter 27 of the Laws of Zambia, Order 6 Rule 2 3. R e nt Act, Chapter 206 of the Laws of Zambia This is an appeal against a j udgment of the High Court granting the 1 st respondent possession of Subdivision "B" of Stand 40 la Lusaka wh ich it purchased from the 2nd responden t in 20 13. The pt respondent commenced legal proceedings against the appellants and the 2nd respondent by Originating Summons pursuant to Order 113 of the Rules of the Supreme Court 1999 and Order VI Rule 2 of the High Court Rules, Chapter 27 of the Laws of Zambia, seeking the following reliefs: 1. An order and a declaration that the l•' respondent was at all material times the absolute, legal owner and registered proprietor of the property situated at Subdivision "B" of Stand 401a, Lusaka in the Republic of Zambia under and by virtue of the Certificate of Title No. 282210 duly issued to the l•' respondent by the relevant authority in respect of the said piece of land; 2 . An order for forthwith delivery of vacant possession of the said property and premises to the ta• respondent; 3. An order that the appellants do forthwith vacate and yield vacant possession of the 1 •' respondent's said property and premises or portion thereof forthwith and in default thereof to be removed, evicted and ejected by the 1"' respondent; 4. Further or other relief that the Court may deem fit and appropriate under the circumstances. ·, )3 The affidavit evidence that was placed before the court below shows that the 2°d respondent, Tap Zambia Limited by a written contract of sale made sometime in 2013, offered to sell to the 1 st respondent, Alasia Building Con struction Limited, Subdivision "B" of Stand 401a, which piece of land measured 150 acres for the contract price of ZMW15,000,000.00. The sale was subject to the 'Law Association of Zambia Contract and Conditions of Sale 1997. Clause 15 of the Special Conditions allowed the vendor to continue being in occupation of the houses situated on the subject property free of rent until 31 81 December, 2014. The 151 respondent obtained a certificate o f title relating to the property on 17th February, 2014. At the time of sale of the property, the appellants occupied the houses situated on the subject p roperty as tenants of the 2nd respondent. Tenancy agreements were entered into with a ll the tenants annually. The tenants included employees and ex employees o f the 2nd respondent while others had no employment connection with the 2 nd respondent. Prior to 2010, the tenancy agreements contained a clause which gave the appellants a right of first refusal to buy the houses they occupied in the event that the 2 nd respondent wished to sell J4 the subject property. However, there was no similar clause 1n the tenancies signed from 2010. Following the sale of the property, the 2nd respondent issued notices to vacate to the appellants, indicating that the lease agreements for 2013 would not be renewed in 2014 because lhe property had been sold. The l "' respondent never sen.red the appellants with notices to terminate or notices to vacate after purchasing the property. The appellants declined to vacate the property after 31 sc December, 2014 on the basis that they were entitled to the right of first refusal to purchase the houses. They claimed that the clause on right of first refusal was unilaterally removed by the 2nd respondent and that they had accrued rights to buy the houses. They also averred that they were protected tenants under the Rent Act, Chapter 206 of the Laws of Zambia and that the notices of termination issued by the 2nd respondent did not meet the requirements of the Rent Act. In his submissions, in the court below, Mr. Mwandenga, counsel for the appellants, cited numerous irregularities concerning the manner the action was commenced by the 1 s, respondent under JS Order 113 of the White Book. The core of h is arguments really was that th e appellants were not trespassers or squatters and therefore , Order 113 did not apply to then1; meaning the proceedings were a nullity, an d ough t to have been brought under the Rent Act. On the other, counsel for the 1•1 respondent, Ms. Sikombe argued th at the appellants were in possession of the land without any claim of righ t as the re was no landlord and tenant relationship between them and the 161 respondent; that they were squatters. It was also argued that the notices to terminale were issued by the 2 nd respondent before title was transferred to the l "' respondent. The case of Mwenya and Randee v Kapinga 1 was cited where we said: "A tenant's occupation is notice of all the tenant's rights. It means that if a purchaser has notice that the vendor is not in possession of the property, he must make inquiries of the person in possession and find out from him what his rights are and, if he does not choose to do that, then whatever title he acquires as purchaser will be subject to the title or rights of the tenant in possession". The submission in this regar d was that the 1•1 respondent d id cany out ordinary investigations on the rights of the appellants and was a bona tide purchaser for value. The learned J u dge considered the affidavit evidence, skeleton arguments, authorities cited and oral su bmissions of the parties. He also set out Order 113, rule 1 of the White Book and the J6 editorial introduction al paragraph 113/ 0 / 2 . He then referred to the contention by the appellants that the application should be dismissed with costs because it ought to have been commenced under the Rent Act and not Order 1 13, rule 1 as the appellants were tenants of the 2nd respondent. The Judge dismissed the above argument on the basis that on the evidence, there had never been a landlord and tenant relationship between the is• respondent and the appellants and absent such a relationship, there was no impropriety on the part of the l •t respondent in commencing the action under Order 11 3, rule 1 of the White Book. The Judge went on to consider the arguments by the appellants that they had accrued rights to buy the houses they were occupying; that the l"' respondent had not served them with notices terminating their tenancies; and that they were protected tenants under the Rent Act and were not squatters. The Judge ex amined the evidence, particularly that of the 2nd respondent, that the tenancy agreements were terminated to facilitate th e sale of th e p roperty to the 1 st respondent and that the appellants were given ample time to vacate the houses. On the J7 documentary evidence, the Judge found that the appellants were given first, three months' notice to vacate the houses and a further s ix months' notice lo vacate. As a result, the Judge dismissed the contention that t h e ap pellants were not given notices terminating th eir tenancies by the 1 •1 respondent. Further, the Judge looked at the a ppellants' evidence that in 2010 and subsequent years, the 2nd respondent ren1oved the clause from the tenancy agreements giving th em the right of first refusal to purchase the houses they were occupying and found the claim that the appellant had accn1ed rights to buy their houses untenable. The Judge also opined that the empowerment scheme relied upon by the appellants ceased to h ave effect when the 2"d responden t removed the clause from the tenancy agreements giving them the right of first refusal and that the scheme was not a contract capable of enforcement but a mere policy which was overtaken by a later event. For the foregoing reasons, tl1e court granted the orders sought by the 1" respondent and gave the appellants one month notice from the date of the judgment to vacate the property. .. JS The appellants appealed and filed eight grounds of appeal which we have rephrased in part as fo llows: 1 , The learned Judge misdirected himself by failing or neglecting to address his mind to a litany of irregularities which were pointed out by the appellants in their submissions in the court below. 2 . The learned Judge misdirected himself by failing or neglecting to give reasons as to why he did not consider a litany of irregularities which were pointed out or raised by the appellants in their submissions in the court below. legal implications of all 3. The learned Judge misdirected himself when he failed to consider the that were perpetrated by the l " respondent in these proceedings as a prelude to deciding whether or not there was any impropriety on the part of the 1 51 respondent in commencing these proceedings under Order 113 rule 1 of the White Book. irregularities the 4 . The learned Judge misdirected himself when he failed or neglected to apply the law and/ or practice relating to Order 113 to the facts of this case. 5 . The learned Judge misdirected himself when he summed up the appellant's case a.s follows: "It has been contended by the defendants that this application should be dismissed with costs because it ought to have been commenced under the Rent Act and not under Order 113 rule 1 of the White Book as the defendants were tenants of the l " defendant ... " 6. The learned Judge erred in law and in fact when he said that absent the landlord and tenant relationship between the l'' respondent and appellants, he was satisfied that the r e was no impropriety on the part of the 1" respondent in comme ncing this action under Order 113 rule 1. 7 . The learned Judge erred in law and in fact when he held that the they were not given notices appellants' contention that terminating their tenancies by the 1•' respondent is untenable. 8. The learned Judge erred in law when he granted reliefs sought without considering whether it was competent for the 1" respondent to have joined the other claims on the Originating Summons with the claim for possession under Order 113. In support of the appeal, counsel for lhe a ppellants, Mr. Mwande nga filed h eads of argument on which he re lied entire ly. In ground 1, the essence of the appellants' arguments is that the proceedings in the court be low were misconceived, incompete nt and a nullity and ought to have been dismissed with costs but the court ignored, without giving reasons, the many irregularities raised by the appellants and only addressed his .mind to one. The cases of Kitwe City Council v Ng'uni2 and Minister of Home Affairs and another v Lee Habasonda 3 were cited to support this argument. The gist of the a ppellants' arguments in ground 2 is that, there is no indication, from the judgment, as to how the Judge considered the authorities in the skeleton arguments and the oral submissions in relation to the irregularities that were raised by the a ppe llants and that the judgment gives no reasons why the issues were not considered. Several authorities were cited, including the case of Chibwe v Chibwe4 where we said that the Courts must be alive to the well-established principle of giving reasons for their d ecisions. In ground 3, t he import of the a ppellants' arguments is that the Judge was duty bound to consider all the issues they raised because all were relevant or he ought to have dismissed the HO appellants' submissions as being irrelevant or otiose. It was contended that this is not a proper case for this Court to re-write the judgment on behalf of the court below, because the Judge did not deal with all the issues before him. We were urged to remit the matter to the court below for consideration of the issues. The core of counsel's arguments in ground 4 is that the Judge made reference to Order 113, rule 1 of the White Book but then neglected to apply the law to the facts. Some case authorities that explain what the e lements of a good judgment are were cited, bul we do not find it necessary to restate them here. In respect of ground 5, it was submitted that from the summation referred to in the ground of appeal, the Judge narrowed down the issues before him to one, without stating any reasons and ignored the other issues raised by the appellants, which warranted the dismissal of the action. The case of Wilson Masauso Zulu v Avondale Housing Project Limited5, among others, was quoted where it was emphasised that trial courts must always bear in mind that it is their duty to adjudicate upon every aspect of the suit between the parties so that every matter in controversy is determined in finality. Jll The kernel of the arguments in ground 6 1s that it seems the Judge treated the appellants like trespassers. The case of Lia mond Choka v Ivor Chilufya6 was quoted where we held, inter alia, that the summary procedure under Orde r 113 can only be suitable for squatters and others without any genuine claim of right or who have s ince been transformed into squatters. It was argued that on the expiry of the termination notices issued by the 2nd respondent, the appellants did not vacate the houses. Further, that the 2°d respondent was no longer the owner of the property and the 1 st respondent did not issue eviction or termination notices to the appellants after acquiring the property. Therefore, the appellants were not trespassers. They were supposed to be treated as tenants holding over after termination of the tenancies and were exempt from Order 113, rule l. The case of Dut to n and others v Manchester Airport Pie 7 was relied on. Counsel also sub1nitted that the absence of the landlord and tenant relationship between the appellants and the 1•1 respondent is not the basis for commencing proceedings under Orderl 13 because the persons subject to this Order must be persons who illegally occupied the property. That anyhow, at the time the ) st Jl2 respondent bought the property, the appellants were tenants of the 2°d respondent and so, the 1 s, respondent purchased the property subject to their tenancies and by operation of law, it became the landlord and if it wanted to obtain possession of the houses, it ought to have proceeded under the Rent Act. In ground 7, it was contended that the 1 s, and the 2 °d respondents are two separate legal entities. Therefore, the notices to vacate given by the 2°d respondent cannot be said Lo have been given by the 1 s, respondent. Further and in the alternative, it was argued that the Judge made an inference that the 1 s1 respondent had given the appellants notices terminating their tenancies; that this is a finding of fact which must be reversed on the principles espoused in Attorney General v Marcus Kapumpa Achiume8 . Finally, in respect of ground 8, it was contend ed that the originating summons was a hybrid between that under Order 1 13 of the White Book and Order VI rule 2 of the High Court 1-ules, but the Judge recognised the Order 113 part of the action without stating why, especially that it was not in the prescribed format. It was further submitted that proceedings under Order 113 are special proceedings for claims of possession of land only and no Jl3 claim can be joined with the claim for possession. We were referred to the editorial note at paragraph 113/ 8 / 14 of the White Book. We were urged to allow the appeal with costs. We have considered the evidence on record, the judgment appealed against and the argu,nents by counsel for the appellants. We have not received heads of argument from the respondents who did not also attend the hearing of the appeal. We were informed that AMC Legal Practitioners, advocates for the 1•1 respondent were served but service on the 2 n d respondent failed because the company is closed. It appears that the 2 n d respondent did not attend the proceedings in lhe cour t below for the same reason. A perusal of the grounds of appeal shows that they are all entwined and in th e main, attack th e commencement of the proceedings under Order 113 of the White Book and the manner the learned Judge dealt with the matter in light of the irregularities pointed out by the appellants. Therefore we shall deal with the eight grounds altogether. To start with, a tenancy ,nay be tenninated by ciLhcr lhe landlord or the tenant and the party who intends to terminate the tenancy m u st serve a valid notice on the other party. However, Jl4 where a ten ancy that was entered into for a ftxed period comes to an end, a notice of termination does not have to be issued. The tenancy is determined by the effluxion of time. The landlord can give the tenant a notice to vacate at the end of a ftxed term but a tenant has a right to challenge a notice to vacate if it is not given properly or if he disagrees with the reason given. It is also important to bear in mind that j ust because the tenant receives a notice to vacate; it does not necessarily mean that he has to move out. If the landlord wants lo evict him, they must apply to court for the grant of a possession order under the Rent Act, Chapter 206 of the Laws of Zambia. In the current case, subject property on which the houses are situated was sold to the 1 s 1 respondent by the 2nd respondent 1n 2013 and that the 1 •1 respondent is the title holder. It was not 1n dispute that the 2nd respondent issued notices to vacate to the appellants after the property was sold to the 1 • 1 respondent and that the 1•1 respondent did not issue any notices to terminate or to vacate after purchasing the property or acquiring title. Mr. Mwandenga informed us at the hearing of the appeal that the appellants were in fact given notices by the 2nd respondent JlS terminating their tenancies before the property was sold to the 1 •1 respondent. Despite that these notices a re not on the record of a ppeal, counsel was insistent that the notices were given except that the appellants did not vacate the property on ground that they had an accrued right to purchase the houses they occupied. As we see it, two things could have happened here. Ffrst, the appellants might have been given notices to terminate before the property was sold as disclosed by counsel. If that is what happened , then the tenan cy agreements terminated on the dates indicated in the notices and the appellants should have yielded up possession. Counsel did not allege that the notices to terminate given before the sale of the property were invalid or that the appellants did not agree with the reason given by the 2nd respondent for the termination. The other thing that could have happened is that the tenancies expired by the effluxion of time. The notices to vacate given by the 2nd respondent on 21 •1 May, 2014 referred to a letter dated 24th January, 20 14 wherein the appellants were advised of the expiry of the tenancy agreements for 2013 and that the same would not be ren ewed in 2014 because the property was sold. J16 What this means is that the l"' respondent ought to have known about the tenancy agreements prior to finalising the transaction given that the appellants were in occupation of the houses. Following our decision Mwenya and Randee v Kapinga 1 , the l "' respondent will have bought the property subject to the rights of the appellants as tenants and the title it acquired as purchaser will have been subject to the rights (if any), of the appellants as tenants. Therefore, the 1s1 respondent would have become the landlord and if it wanted to gain possession of the property before expiry of the tenancy agreemen ts, it ought to have given termination or eviction notices to the appellants but if the tenancies expired naturally, there would have been no need for the 1'1 respondent to give notices to tenninate or to vacate as argued by the appellants. Either way, the tenancy agreements terminated. However, because of clause 15 of the Special Conditions in the Contract of Sale, which allowed the 2 °d respondent to continue being in occupation of the hou ses situated on the subject property free of rent until 31" December, 2014 the appellants remained in occupation of the houses with the licence or consent of the J17 respondents. We agree with the appellanls that during that period they could not be considered as trespassers or squatters. It is also quite clear that the notices to vacate given by the 2 nd respondent after the prop erty was sold, were meant to enable the 2nd respondent yield vacant possession of the prope1·ty to the l " respondent after 3 1"' December, 2014 as agreed between the parties to the contract of sale. As we have said, the appellants did not challenge the notices to vacate or enter into renew tenancies with the l "' respondent. They s imply sal back until the l •1 respondent applied to court for possession of the property on l5<h April, 2015. The question then is whether the appellants fell under Order 113, rule 1 of the White Book. The rule provides that: "Where a person claims possession of land which he allege s is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who ente red into or remained in occupation without his licence or consent or that of any predecessor in title of his. the procee dings may be brought by originating summons in accordance with t he provisions of this order' (underlining ours for emphasis only) The editorial introduction a t paragraph 113/0/2 of the White Book which the court had referred to also states that: "The circumstances in which the procedure can be u sed are restricted to cases where the land is occupied by persons who have entered into or remain in possession of the land without the licence or consent of the pe rson claiming possession" (underlining again ours for emphasis only). J18 In Dutton and Others v Manchester Airport PLC7 which was cited by counsel for the appellants, t he matter was put as fo llows: "Order 113 was introduced in 1970 (by the Rules of the supreme Court Amendment Act No. 2) ... shortly after the decision of this Court in Manchester Corp v ConnoUy (1970) 1 All ER 961, (1970) Ch 420. It had been held in that appeal that the court had no power to make an inte rlocutory order for possession. Order 113 provides a summary procedure by which a person entitled to possession of land can obtain a final order for possession against those who have entered into or remained in occupation without any claim of righ t - that is to say. against t respassers. The order does not extend or restrict the jurisdiction of the court" (emphasis again ours). In the same case, Kennedy L. J held that: " ... what matters is that the plaintiff has a right to possession which meets the first of the requirements set out by Stephenson W, and the defendants have no right which they can pray in aid to justify t heir continued possession. It is said that such approach blurs the distinction between different types of rights and different types of remedy, it seems to me that is the effect of the wording of Order 113, and the understandable object of t he law has always been to grant relief to a plaintiff seeking possession who can rely on a superior title. In Danford v McAnulty (1883) 8 App 456 at 462 Lord Blackburn said: ' ... in ejectment, where a person was in possession those who sought to turn him out were to recover upon the strength of their own title: consequently possession was at law a good defence against anyone, and those who sought to t urn the man out must show a superior legal title to his'." In Liamond Choka v Ivor Chilufya6 we emphasised the same princip le that the summary procedure under Order 113 can only be suitable for squatters and others without any genuine claim of right or who have since been transformed into squatters. )19 It is clear from all the above, that the procedure in Order 113 rule 1 applies only to the category of people prescribed in the 1-ule. The first category is that of people who have entered into occupation of the property without the licence or consent of the person entitled to occupation or his predecessor in title. The second category applies to people who have e ntered into occupation with the licence or consent of the person entitled to occupation but have remained in such occupation, without the licence or consent of the person entitled to possession or his predecessor in title. As the learned editors of the White Book have explained al paragraph 113/8/2 , lhe court has no discretion to prevent the use of this summary procedure where the circumstances are such as to bting them within its terms, e.g. against a person who has held over after his licence to occupy has terminated, although the order will not apply before the licence has expired. The case of Greater London Council v Jenkins9 which is cited at paragraph 113/8/2 shows that a landlord is entitled to use the summary proceedings under Order 113 if he can demonstrate his right to do so, and the court has no discretion to deny such use • • J20 merely on the grounds that the proceedings are rapid and summary and that the defendants did not enter as squatters. The appellants have;; ctrgue<l that they were;; not trespassers or squatters since they were holding over after the tennination of their tenancy agreements. This argument cannot help them b ecause they continued in occupation by licence or consent of the respondents only up to 31 s1 December, 2014. Thereafter, they remain ed in occupation without the consent or licence of either of the respondents . The l •' respondent had established its right to the property as registered owner. The appellants failed to establish any legal or equ itable interest in the property. No doubt they became trespassers. It is irrelevant that the 1"1 respondent did not issue notices to vacate after they acquired the property. On the basis of all the foregoing, we agree with the decision of the learned Judge in the court below that in the absence of a landlord and tenant relationship between the 18 ' respondent and the appellants, there was no impropriety on the part of the 1 "' respondent i n commencing the action under Order 113, rule 1 of the White Book. We are not persuaded that the proceedings were a nullity or that they should have been brought under t h e Rent Act. • J21 We may add, that the appellants have not appealed against the Judge's finding that they had no accrued r ight to purchase the houses they occupied and that they lost the right of first refusal after it was re1noved from the tenancy agreements in 2010. We turn now to the other irregularities poirited out by the appellants. In respect of the argument that the 1s1 respondent should not have joined other claims to the claim for possession, we agree that paragraph 113/8/3 of the White Book states that the only claim that can be made ir1 the proceedings Order 113 is for the recovery of possession of land and that no other cause of action can be joined with such a claim, and no other relief or remedy can be claimed ir1 such proceedings. The above paragraph also states that when the existence of a serious dispute is apparent to a plaintiff he should not use this procedure. However, reference is there made to Eyles v Wells 10 , where the EngJish Court of Appeal fol1owing Greater London Council v Jenkins9 , held that the Court had no discretion to prevent the procedure being used in cases that fell within the rule. At paragraph 113/8/ 14 of the White Book, the learned editors also explain that if, on the hearing of the summons, it appears that • .. J22 the claim of the plaintiff is not within the ambit of this Order or the claims for relief or remedy have been joined with the claim for· possession of land which could not or ought not to have been so joined or that for some other reason the proceedings are irregular, the Court may dismiss the s u mmons or give leave to amend to correct any irregularity on such terms as it thinks fit. The same paragr aph states that if the Court should hold that there is some issue or question that requires to be tried, or that for some other reason there ought to be a trial, it may give directions as to the further conduct of the proceedings, or may order the proceedings to continue as if begun by v. Tit. In this case, there was no serious dispute as to the title of the 1•• respondent to the subject property to bar the latter from commencing proceedings u nder Order 113 and it could not have been apparent that the matter would raise serious contentious issues for determination for the court to dismiss the summons or make an order that the matter was to proceed as if begun by writ. Further, much as we agree with the appellants that the claim for possession should not have been joined with the claim for a declaration, the orders the court granted were all related to the • • J23 claim for possession of land, and cannot at this point in lime be the reason to nullify the proceedings in the court below. Moreover, the learned Judge did not just deal with one issue as argued by the appellants. A number of the issues were dealt with and reasons given in the judgment. We do not agree that the judgment fell short of what a proper judgment should be. In addition, in terms of Order 2, rule 1 of the White Book if in beginning or purporting to begin any proceedings there has, by reason of anything done or left undone, been a failure to comply with the requirements of the rules, whether in respect of time, place, manner, form or content or in any respect, such failure is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein. And under Order 2 rule 2 the court may, on the ground that there has been such failure and on such terms as to costs or as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order. However, the application must • .. • J24 be made within reasonable time and before the party applying has taken any fresh step after becoming aware of the irregu lai-ity. Further still, Order 2 , rule 3 provides that the court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed. In this case, the appellant never applied under Order 2, rule 2 to set aside the proceedings for irregularity despite the many irregularities raised most of which did not touch on the issue of jurisdiction. Instead, the appellants filed affidavits in opposition to the originating summons and attended the hearing of the proceedings and then filed detailed submissions pointing out the alleged irregularities. We can safely say that the appellants had waived their right to object when they took fresh steps in the action after becoming aware of the irregularities. Order 113, rule 8 of the White Book also pe rmits the court, on such terms as it thinks just, to set aside or vary any orde r made in proceedings under this Order. Yet again, the appellants did not • . ' J25 apply to the cou rt below to set aside or vary any of the orders granted by the court on the basis of the alleged irregularities. It has since come to light, that after the learned trial Judge refused to stay his judgment pending hearing of this appeal, the appellants obtained a stay of execution from a single Judge of this Court. The end result is that the appellants have remained in the houses on the subject property from 31 s, December, 2014 when their license expired to date without any tenancy agreement or payment of rent. Obviously, this has prejudiced the l " respondent which has not been able to utilise its property and no justice can be achieved by nullifying the proceedings and remitting the matter to the court below. Consequently, all the grounds of appeal must fail. In all, we disn1iss the appeal and grant immediate possession of the property to lhe l"' respondent. We make no order as to costs. (_~ E. M.~~&t>u SUPREME COURT JUDGE ) I)_·'-')! E C::. < _ R . M . C. KAOMA SUPREME COURT JUDGE J . K . KABUKA SUPREME COURT JUDGE