Fred Joe Ltd v Limbee Properties Ltd (Appeal 8 55 of 1987) [1987] ZMSC 87 (17 December 1987)

IN THE SUPREME COURT OF ZAMBIA Application No. 8/55/1987 HOLDEN AT LUSAKA (Civil Jurisdiction) FRED JOE LIMITED Applicant and j LIMBEE PROPERTIES LIMITED Respondent CORAM: Silungwe, C. J., Gardner, ADCJ, and Bweupe, AJS. 17th December, 1987 G. F. Patel, Messrs Musa Dudhia & Company, for the applicant J. M. Mwanakatwe of Messrs M. M. W. & Company, for the respondent JUDGMENT Silungwe, C. J., delivered the judgment of the court Case Referred to: (1) Bobert -v- Kapindula (1974) ZR "235 In this judgment we shall refer to the applicant as the respondent and to the respondent as the plaintiff. This is an application against a decision of the High Court in relation to Plot Nos. 109 and 110 situated along Cairo Road, Lusaka. After receiving evidence in the matter the learned trial conmissioner in the court below found that the plaintiff was the registered owner of the premises at plot Nos. 109 and 110 with effect from July 1, 1983, its predecessor in title having been Juta Fisher and Allan Jacob Fisher; that by a lease dated January 13 1974 the said premises were leased to the defendant for a term of three years with effect from March 1, 1974; that the lease contained a clause under which the tenant could renew the lease for a further term of two 2/......... .. .years : J2 : years after the expiration of the lease; that the defendant did not exercise the option of renewing the lease; and that the plaintiff served upon the defendant a Statutory Notice to quit, which notice was served on the 28th October, 1983 in terms of Section 5 of the Landlord and Tenant Business Premises Act which terminated the tenancy with effect from April 30, 1984. The learned trial commissioner came to the conclusion that although rent was being paid by the defendant, this did not create a new lease and she proceeded to award the sum of K147.594.00 being mesne profits. Before us, it was argued by Mr. Patel that after the expiration of the notice to quit, the defendant was allowed by the plaintiff to continue In occupation of the premises actually occupied by it at an increased rate of K2.805 per month. This, it was contended, created a new tenancy; but Mr. Mwanakatwe argued that the issue of a new tenancy had been dealt with by the learned trial commissioner when she found in accordance with the authority of the'case of Bobert -v- Kapindula (1), that, although there had been payment of rent, this did not suffice to create the lease without any definite terms of the lease having been agreed. The case referred to related to cirnumstances where the tenant was occupying premises on the understanding that he would carry out repairs and pay rent of between K20 and K25 per month. This court found that there were three areas of uncertainty, namely, the rent, the length of the term and the date of Its commencement. In the present case, there were no such areas of uncertainty, and, although we would not wish to prejudge the issue which would be dealt with on the full appeal, there is evidence on which the defendant can advance an argument that a new tenancy had been created as opposed to the situation in respect of the respondent's argument which was adopted by the learned trial commissioner that, in the absence of an application for a new tenancy under the provisions of the Landlord and Business Premises Act, CAP. 440, the tenant had no right to continue in occupation of the premises and could not possibly succeed on appeal. 3/............................ In J3 In view of the facts as set out in the affidavits of the managing director of the defendant company that if the defendant were dispossessed of the property at present occupied by it, a successful appeal would be rendered nugatory and the defendant would suffer serious loss which could not be adequately compensated for in damages, we consider, regard being had to the nature and the location of the defendant's business, that this is an appropriate case to order stay of execution of the order for possession. It is common ground that, by agreement, the rents of certain parts of the premises are being paid direct to the plaintiff and that the defendant is occupying and carrying on business only in certain parts of the premises. We, therefore, order that the execution of the order for possession of that part of the business actually occupied by the defendant be stayed pending the hearing of the appeal. The application by the defendant for an adjournment to enable the application to be made for an extension of time for making an application for a new tenancy, therefore, falls away although this would not prevent the defendant from making such an application if it is so advised. The appeal is allowed. Costs will be in the cause. ANNEL M. Silungwe CHIEF JUSTICE B. T. Gardner ACTING DEPUTY CHIEF JUSTICE B. K. Bweupe ACTING SUPREME COURT JUDGE