Euphemia Michelo Miyanda and Ors v National Institute for Scientific and Industrial Research (SCZ Appeal 177 of 2000) [2001] ZMSC 125 (18 May 2001)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 177/2000 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: EUPHEMIA MICHELO MIYANDA AND MOTHERS APPELLANT AND NATIONAL INSTITUTE FOR SCIENTIFIC AND INDUSTRIAL RESEARCH RESPONDENT Coram: Ngulube, CJ, Chaila and Chibesakunda, JJS on 25th January 2000land 18th May 2001 For the Appellant: For the Respondent: Mr C Siamutwa, Counsel, National Leal Aid Clinic for Women Mr L C Zulu of L C Zulu and Company JUDGMENT Chibesakunda, JS, delivered judgment of the court. Acts referred to: The Rent Act. Section 13 This is an appeal against the refusal by the High Court to grant an injunction in an application by the appellant who was the applicant together with 14 others. The appellant applied to the High Court for this injunctive relief in order to restrain the respondent or its servants/employees from evicting them from their Houses Nos. MB 12, LC 20, LC 27, LC 11, LC 05, LC 10, LC 14, LC 04, LC 03, LC 13, WH 05, 3V 13 and LC 17 respectively. J2 The application before the High Court was supported by affidavit evidence, which briefly was that the appellants occupied these houses as tenants under periodical tenancy from month to month. According to their affidavit, the appellants’ claim was that, since the respondent is a Parastatal body and was likely to sell houses to its own employees as sitting tenants as part of the empowerment Policy by the Government of the Republic of Zambia, they were therefore entitled to be offered houses to purchase as is part of the Government’s policy of empowering sitting tenants. They also argued that they were covered by the Rent Act and as such were protected by the provisions of this Act. Therefore, according to Paragraph 5 of their affidavit they were seeking a quia timet injunction in that since the Respondents had written them individual letters threatening to evict them they were worried that they would be evicted if they were not protected by the injunction. The respondent on the other hand asserted that the houses in question were institutional houses. They pointed out that the houses belonged to them and not to the Government of Zambia except one occupied by the 15th Appellant and that the respondent was a corporate body and as such were a legal entity capable of being sued and suing. The learned trial Judge accepted the respondent’s affidavit evidence and therefore rejected the application for an injunction on the grounds that the Appellants having prayed inter alia for damages, damages would adequately atone their injury should they succeed at trial. - J3 - Now before us, the learned counsel for the Appellants has advanced brief arguments, which we are not likely to deal with, as they are irrelevant except for the argument on protection of the Appellants by the provisions in the Rent Act. It was argued on behalf of the Appellant that the Appellants being sitting tenants had to be protected by the Rent Act even if they were not eligible to purchase the houses they were living in. We have looked at this argument. We are in agreement with the learned counsel for the Appellant that Section 13 (1. (e)) of the Rent Act protects the Appellants from eviction. Section 13 (1. (e)) states:- (1) No order for the recovery of possession of any premises or for the ejectment of a tenant therefore shall be made unless- (e) “the dwelling-house is reasonably required by the landlord for occupation as a residence for himself or for his wife or minor children or for any person bona fide residing or intending to reside with him, or for some person in his whole-time employment or for the occupation of the person who is entitled to the enjoyment of such dwelling-house under a will or settlement, and the landlord has given to the tenant not less than twelve months’ notice to quit; and in such case the court shall include in any order for possession a requirement that the landlord shall not without its prior approval let the premises or any part thereof within three years after the date on which the possession is to be given; or The Appellants had no clear right to the relief of buying the houses in question. However, as tenants under periodical tenancy from month to month and (even said to be in arrears of the rent) the Act precludes recovery of possession by the (landlord) Respondent, unless the appropriate notice therein stated has been given. The notice here was too short. The appeal is, therefore, successful. The Appellants are granted an injunction backed dated to the time they applied pending the hearing of the substantive matter by the High Court. Costs in the cause. J4 M M S W Ngulube CHIEF JUSTICE M S Chaila SUPREME COURT JUDGE L P Chibesakunda SUPREME COURT JUDGE