Kenny Ilunga T/A La Fiesta VIP Lounge v Hotel & Tourism Training Institute Trust T/A Fairview Hotel (Appeal No 142/2017) [2019] ZMCA 301 (11 July 2019)

IN THE COURT OF APPEAL FOR ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) APPEAL NQ 142/2017 BETWEEN: 1 1 -~~ ...... ': . . ~ )J CIVILRE~~ KENNY ILUNGA T / A LA FIESTA VIP tOUNGE~ Appellant AND HOTEL & TOURISM TRAINING INSTITUTE TRUST T / A FAIRVIEW HOTEL Respondent Coram: Mchenga, DJP, Mulongoti and Lengalenga, JJA on 24th April, 2018 and 11th July, 2019. For the Appellant: Mr. W. Muhanga - Messrs AKM Legal Practitioners For the Respondent: Mr. L. M. Chikuta - Messrs IC N'gonga & Company JUDGMENT LENGALENGA, JA delivered the Judgment of the Court Cases referred to: 1. LT GEN FUNJIKA v ATTORNEY GENERAL (2005) ZR 97 {SC) 2. THE MINISTER OF INFORMATION AND BROADCASTING & ANOR v FANWELL CHEMBO & ORS (2007) ZR 82 (SC) J1 3. NEWSTON SIULANDA & ORS v FOODCORP PRODUCTS LTD - SCZ JUDGMENT NQ 9 OF 2002 4. SALOMON v SALOMON {1897) AC 22 5. MWAPE AND 61 ORS v ZCCM INVESTMENTS HOLDINGS LTD - SCZ JUDGMENT NQ 23 OF 2014 6. ATTORNEY GENERAL v MARCUS K. ACHIUME (1983) ZR 1 (SC) 7. MUTANTIKA & ANOR v CHIPUNGU - SCZ JUDGMENT NQ 13 OF 2014 8. GITRINE N. SAKALA & ANOR v FERT SEED AND GRAIN {PVT) LTD & ANOR - SCZ APPEAL NQ 85 OF 2015 9. CAMRAN CATERING LTD v MANDA HILL CENTRE {2015/HPC/0529) 10. NKHATA & ORS v ATTORNEY GENERAL {1966) ZR 124 CA 11. PACKER v PACKER {1953) 2 ALL ER 127 12. ANDERSON K. MAZOKA & ORS v LEVY PATRICK MWANAWASA & ORS {2005) ZR 138 13. NORTHMAN v BARNET COUNCIL {1978) 1 ALL ER 1243 Legislation referred to: 1. THE LANDLORD AND TENANT {BUSINESS PREMISES) ACT Chapter 193 of the Laws of Zambia. Other works: 1. BLUNDELL L. A & WELLINGS V. G., WOODFALLS LAW OF LANDLORD AND TENANT, 27TH EDITION, VOLUME 2 2. SUSAN BARKEHALL THOMAS AND VICKI VANN, EQUITY {LEXIS NEXIS, BUTTERWORTHS, AUSTRALIA:2007) 3. BRYAN A GARNER'S BLACK'S LAW DICTIONARY, 9TH EDITION This is an appeal against a High Court judgment dated 10th August, 2017 by Judge Mapani Kawimbe. The brief facts from the affidavits filed in J2 the Court below are that the Respondent and Appellant herein entered into a lease agreement for office space at the Respondent's business centre at Fairview Hotel. The tenancy was for a period of three years from 1st April, 2015 to 31st March, 2018 and the monthly rent was set at KS 500.00 payable two months in advance. The said rent inclusive of water and electricity was subject to yearly review. After a period of two years, by a letter dated l ih April, 2017 the Respondent notified the Appellant that the rent had been increased from KS 500.00 to KlS 000.00 per month payable two months in advance effective from 1st May, 2017. The Appellant reacted to the rental increase by commencing an action in the High Court by way of originating notice of motion claiming the following: (i} The determination of monthly rent of the rented premises situated at the business centre of Fairview Hotel currently leased to and being occupied by La Fiesta VIP Lounge. (ii} An order to declare as invalid the increment in rent made by the respondent and substitute it with the rent to be determined. J3 (iii) (iv) Costs of this application respondent. to be borne by the Any other order or relief the Court consider fit to make in the circumstance. The originating notice of motion was determined based on the supporting and opposing affidavits and skeleton arguments filed into Court by the parties. The Appellant's action was taken out pursuant to section 28 of the Landlord and Tenant (Business Premises) Act, Chapter 193 of the Laws of Zambia, which empowers the Court to determine the rent. The Respondent opposed the application on the ground that the Appellant's action was prematurely before the Court below, among other allegations that the Appellant played very loud music in total disregard of the initial agreement to the Respondent's business and thereby caused damage and loss of business for the Respondent. After considering the affidavit evidence and arguments, the trial judge declined to determine the rent and she held that the matter was prematurely before the Court and she, accordingly, dismissed the action. Dissatisfied with the said judgment, the Appellant appealed to this Court and advanced seven grounds of appeal set out as follows: J4 1. The learned Judge below misdirected herself at law by importing section 16 of the Landlord and Tenant (Business Premises) Act, Chapter 193 of the Laws of Zambia when she was moved under section 28 of the same Act and erred in interpreting the two provisions as one, when they are enacted to achieve two different scenarios. 2. The learned Judge misdirected herself by giving a wide import of interpretation by holding that government was the one that let the premises without any evidence before her, when in fact not. 3. The learned Judge failed to distinguish the legal capacity of the government institution with that of the respondent in the case before her and thus her judicial notice that government is the one that had let the premises was wrongly applied because the respondent was a body corporate sole on its own standing. 4. The learned Judge did not give a balanced analysis of the evidence and submissions before her in arriving at her decision. 5. The learned Judge erred in law by not proceeding to determine the rent of the business premises as section 28 of the Landlord and Tenant (Business Premises) Act, Chapter 193 compels her to do so on the application of a tenant. 6. The learned Judge misdirected herself by importing provisions of an author of a book into interpreting express statutory provisions of the Act upon which she was moved to determine, thereby altering the meaning. JS 7. The learned Judge misdirected herself by not referring the matter to the Deputy Registrar for assessment to have the valuation report even when she conceded that had it been available, she could have determined the rent, which finding was contradictory to her other findings. The gist of the Appellant's argument in support of ground one is that the Court below was moved under section 28 of the Landlord and Tenant (Business Premises) Act but that to the Appellant's surprise, in rendering her decision, the trial judge incorporated section 16 of the Act by holding that she would be disinclined to grant the application as there was "no default of agreement of the rent payable," and that as such the application was prematurely before her. For the purpose of distinguishing the contents of the two provisions and for ease of reference, Mr. Muhanga, Counsel for the Appellant, reproduced them as follows: "28(1) Notwithstanding anything to the contrary contained in this Act or any other written law or in any lease, a tenant whose tenancy commences on or after the 1st January, 1972 and to which tenancy this Act applies, may, within three months from the commencement thereof (if he is aggrieved by the rent payable thereunder) apply to the court for determination of the rent; and, subject to the provisions of subsection (2), the court shall determine the rent which shall J6 be substituted for the rent agreed to be paid under the tenancy." With regard to the cited provision, he submitted that it is clear that when a tenant "is aggrieved by the rent payable" under a tenancy, he may apply to the Court, so that the rent can be determined and the Court "shall" determine the rent subject to the provisions of subsection (2) of the said section. Section 16 of the Act provides that: "The rent payable under a tenancy granted by the order of the court under this Act shall be such as may be agreed between the landlord and the tenant or as, in default of such agreement, may be determined by the court to be that at which, having regard to the terms of the tenancy (other than those relating to rent), the holding might reasonably be expected to be let in the open market by a willing lessor, there being disregarded." It is the Appellant's contention that the learned trial judge erred by incorporating words from section 16 of the Act in making her decision for the determination of rent. Counsel for the Appellant argued that looking at section 28, there is nowhere where the words "in default of agreement" appear, and that, therefore, there is a clear distinction between sections 28 and 16. He thus J7 submitted that had the legislature intended that the two sections to mean the same thing, it would have used the same words. To further distinguish the two provisions, he submitted that section 28 of the Act does not require the landlord and the tenant to agree or disagree on the rent payable first, as a precondition before taking the matter to Court as the "aggrieved" tenant is permitted to make an application to the Court for determination of the rent. In relation to section 16, he submitted that in addition to the tenancy first being granted by the Court, it requires the landlord and the tenant to agree on the rent payable under the tenancy granted by the Court, and that in default of agreement, the rent may then be determined by the Court. Counsel for the Appellant further submitted that once an application is made by an aggrieved party under section 28 of the Act, the judge has no discretion but to proceed to determine the rent and he or she cannot decline to do so in accordance with the provision of the law which states that: " ......... the court shall determine the rent which shall be substituted for the rent agreed to be paid under the tenancy." J8 He submitted that, therefore, the learned trial judge's decision was highly erroneous. To support this position, he relied on the case of LT GEN FUNJIKA v ATTORNEY GENERAL 1 where it was stated that: "It is trite law that the primary rule of interpretation is that words should be given their ordinary and natural meaning. It is only if there is ambiguity in the natural meaning of the legislature cannot be words and the ascertained from the words. The court's duty is to interpret the law, not to introduce glosses and interpolations in clear provisions." intention of the He further relied on the case of THE MINISTER OF INFORMATION AND BROADCASTING & ANOR v FANWELL CHEMBO & ORS2 where the Supreme Court emphasized the fundamental rule of interpretation of Acts of Parliament, that they ought to be construed according to the words expressed therein; and that it is not the duty of the Courts to edit or paraphrase the laws passed by Parliament. It further stated that the duty of the courts is to interpret the laws as found on the statute. Grounds two and three were argued together. Mr. Muhanga submitted that the Court below held that the Respondent is owned by the Commission for Technical Education and Vocational Training which falls under the Ministry of Higher Education and therefore, is not an entity that J9 is envisaged by the Act. He referred this Court to section 3(1) and (2)(c) of the Act which provides that: "3(1) Subject to the provisions of subsection (2), this Act shall apply to all tenancies in Zambia (2) This Act shall not apply to - (c) premises let by Government or a local authority." He submitted that in relation to this case, evidence was led by the Appellant in the Court in form of a lease agreement showing the Respondent as the entity that leased out the business premises. In that regard, he argued that the Respondent herein could be owned by the Government in terms of shareholding, but business premises were not leased out by Government, as leasing and ownership of premises are distinguishable. He submitted that the Act specifies that it shall not apply to premises let by Government and that in that regard, it is the Appellant's contention that the Act is applicable to the tenancy between the parties herein as the premises were let by the Respondent. Mr. Muhanga further argued that Court below failed to distinguish the legal capacity of the Government institution from that of the Respondent by holding as she did. He submitted that the Respondent let the premises in its own capacity and that its being owned by the Commission for no Technical Education and Vocational Training does not take away its legal capacity for purposes of letting the premises, as the two institutions are different persons at law. To support this argument, he relied on a number of authorities and particularly, the case of NEWSTON SIULANDA & ORS v FOODCORP PRODUCTS L TD3 where it was held that: "The Court below quite correctly directed itself on the law which has long recognized the separateness of the corporate entity from those behind it, owning it and directing its affairs. The celebrated case of SALOMON v SALOMON4 on the point is still good law." He further relied on the more recent case of MWAPE AND 61 ORS v ZCCM INVESTMENTS HOLDINGS L TD5 where the Supreme Court emphasized the same principle. In ground four, the Appellant has challenged the judgment of the Court below on the basis that the trial judge did not give a balanced analysis of the evidence before her before arriving at her decision. Counsel for the Appellant argued that no evidence was led by the Respondent to show that the business premises were let by the Commission for Technical Education and Vocational Training and that the Appellant, however led evidence to show that it let the premises. He Jll submitted that whilst the learned Judge took judicial notice that the premises were owned by the Government, it also stated that the premises were let by Government in the absence of any evidence, and contrary to the lease agreement exhibited before Court. He further submitted that had the Court analyzed all the evidence before it, it would not have arrived at the finding that it did. He referred this Court to the case of ATTORNEY GENERAL v MARCUS K. ACHIUME6 where it was held that: "An unbalanced evaluation of the evidence, where only the flaws of one side but not of the other are considered, is a misdirection which no trial court should reasonably make, and entitles the appeal Court to interfere." Mr. Muhanga argued that the evaluation of the evidence in the Court below was unbalanced in the sense that the learned Judge considered a position that was not supported by evidence and disregarded the Appellant's position that was supported by evidence that the premises were let by the Respondent. He submitted that a perusal of the judgment also indicates that the learned Judge did not analyze the Appellant's skeleton arguments in reply which responded to the issues raised in the Respondent's skeleton arguments in opposition. J12 He further submitted that the other issue was that of the Court below relying on section 16 of the Act which was not applicable to the Appellant's application. Grounds five and seven were argued together as Counsel for the Appellant felt that they are more or less interrelated. In ground five, the Appellant attacks the learned trial judge for failing to determine the rent for the business premises as provided under section 28 of the Act. Mr. Muhanga argued that section 28 is a mandatory provision that compels the Court to determine the rent and does not give the Court any discretion to decide whether or not to determine the rent as it states that: "the Court shall determine the rent." To support this argument, he referred this Court to the case of MUTANTIKA & ANOR v CHIPUNGU7 where the Supreme Court held that: " .... our response is that Rules 70(1) of SCR and 58(5) as amended by Statutory Instrument NQ 26 of 2012 are mandatory. Both provisions are couched in a mandatory manner as each used the word "shall." The two Rules are therefore, not regulatory as they do not at all give the Court discretionary power." J13 He further relied on the case of GITRINE N. SAKALA & ANOR v FERT SEED AND GRAIN (PVT} LTD & ANOR8 where the Supreme Court followed the same principle in dismissing the appeal. He also relied on BLACK'S LAW DICTIONARY, 8 th Edition, where the learned author defines "shall" as: "Has duty to; more broadly, is required to. This is the mandatory sense that the drafter typically upholds and that the Courts typically upholds." With regard to ground seven, Mr. Muhanga referred this Court to pages J13 and J14 of the trial court's judgment where the learned trial judge in declining to determine the rent stated that: "Further, I cannot determine the rent on the basis of the evidence adduced by the parties. This can only be done in view of a valuation report." In view of the foregoing, he argued that the statement was an admission by the Judge that she recognised the fact that she ought to have determined the rent, but that she could not do so in the absence of a valuation report. However, he wondered whether she would have determined the rent if she had been availed the valuation report. J14 He submitted that the learned trial judge ought to have first granted the application for determination of rent, and thereafter, referred the matter to the Deputy Registrar for assessment to have a valuation report of the business premises on which she could determine the rent. He further submitted that they had persuaded her with the reasoning of Judge I. Z. Mbewe in the case of CAM RAN CATERING LTD v MANDA HILL CENTRE9 where she held that: "In order to arrive at a fair rent, it is imperative that a registered valuation surveyor is appointed to undertake a valuation of the demised premises so as to determine the prevailing market rental in the open market." He submitted that based on the cited case, it is the Appellant's contention that the learned trial judge misdirected herself by declining to determine the rent as she did. In arguing ground six, Counsel for the Appellant referred this Court to the other works on which the Respondent relied, namely, BLUNDELL L. A. AND WELLINGS V. G, WOODFALLS LAW OF LANDLORD AND TENANT, 27th Edition, Volume 2 at page 1311 where the learned authors state that: "The rent to be paid should be that at which the parties have agreed or, in default of agreement determined by the court JlS to be that at which, regard to the terms of the tenancy, the holding might reasonably be expected to be let in an open market." He submitted that it is the above cited works of the learned authors that the learned trial judge imported in interpreting section 28 of the Act as she placed reliance on it in declining to grant the application based on the reason that there is no default of agreement between the parties of the rent payable. Mr. Muhanga argued that reliance on the said works of the learned authors by the judge was a misdirection, as such works cannot take precedence over an express and mandatory statutory provision. He submitted that based on the arguments advanced, the decision of the Court below be reversed and the matter be sent back to the High Court for the rent to be determined and that the costs of this appeal and proceedings in the Court below be awarded to the Appellant. In response to ground one, it was submitted on behalf of the Respondent that the introduction of section 16 herein by the Court below was to demonstrate that according to the spirit within which the Landlord and Tenant (Business Premises) Act was framed, it is not permissible for a party to bring a matter to Court for determination where no dispute exists between the parties. It was further submitted that allowing that would encourage parties to bring frivolous matters for which no causes of action effectively exist. To support this argument, reliance was placed on what the learned authors of WOODFALLS LAW OF LANDLORD AND TENANT, 27th Edition, Volume 2 stated at page 1311 that the rent should be agreed on by the parties or in default of agreement determined by the Courts. It was further submitted that in view of the foregoing, the learned judge in the Court below was firm ground when she was persuaded to find that the element of dispute in land related issues need to be in existence in order for parties to seek audience of the Court. In relation to the present case, it was argued that it cannot be said that there was any dispute that arose to warrant any grievance on the Appellant's part as the same was not communicated to the Respondent inspite of an invitation to dialogue being extended to the Appellant in the Respondent's letter of 1th April, 2017. It was submitted that the only difference between sections 16 and 28 of the Act, relates to the manner in which the tenancy agreement is achieved . It was thus submitted that under section 16, the tenancy J17 agreement is achieved through a court order while under section 28, there is no limitation as to the manner in which the tenancy agreement may be entered into. The Respondent's reaction to the Appellant's citation of the case of THE MINISTER OF INFORMATION AND BROADCASTING SERVICES & ANOR v FANWELL CHEMBO & ORS is that the said authority does not encourage a simplistic approach in interpretation of statutes as proposed by the Appellant's submissions. In response to grounds two and three that were argued together by the Appellant, it was submitted on behalf of the Respondent that the Appellant ought to have proved in the Court below that the property subject of the tenancy agreement ought to have been property for the Respondent herein and not for the Republic of Zambia. It was submitted that in the instant case, the property herein is indicated at page 57, paragraphs 20 and 25 of the record of appeal, as belonging to the Ministry of Higher Education, and a department of the Government of the Republic of Zambia mainstream. J18 It was, therefore, argued that as such Government premises are not subject to the requirements of the Act in accordance with section 3(2)( c) of the Act. In view of the aforestated, it was submitted that the Court below acted judiciously when she took judicial notice of the fact that the premises were owned by the Government. To support this position, Mr. Chikuta relied on BRYAN GARNER'S BLACK'S LAW DICTIONARY where the learned author defined judicial notice at page 2478 as: "A court's acceptance, for purposes of convenience and without requiring a party's proof, of a well-known and indisputable fact; the court's power to accept such ...... " In view of the said definition, it was submitted that the Court below acted judiciously when it took judicial notice of the fact that the premises were owned by the Government. It was, therefore, argued that the cases cited by the Appellant are distinguishable from the present case, because in those cases, the companies as legal entities held the premises as their own unlike the demised premises and that as such, the Act applied to those cases. J19 With regard to ground four, the Respondent submitted that the lease on which the Appellant wishes to rely, cannot be relied on for want of registration. It was further argued that the aspect of the balance of evidence should be discussed in view of the Court below not having considered an important part of either party's evidence, which is not the case herein . It was submitted that, therefore, the inbalance can only be determined when a Court below falls short of the requisite set out in the case of NKHATA & ORS v ATTORNEY GENERAL 10 where it was held that: "A trial judge sitting alone without a jury can only be reversed on the questions of fact if (1) the judge erred in accepting evidence, or (2) the judge erred in assessing and evaluating the evidence by taking into account some matter which he should have ignored or failing to take into account something which he should have considered, or (3) the judge did not take proper advantage of having seen and heard the witnesses, ( 4) external evidence demonstrates that the judge erred in assessing manner and demeanour of witnesses." With respect to grounds five and six, it was submitted on behalf of the Respondent that the Appellant did not come to this Court with clean hands in accordance with the evidence presented in the Court below. It was further submitted that in view of that it can safely be stated that the Court J20 below took cognisance of the principle of equity that embraces the maxim that "he who comes to equity must come with clean hands," and concluded that there was no dispute that needed intervention by the Courts. To support this position, Mr. Chikuta relied on SUSAN BARKEHALL THOMAS AND VICKI VANN, EQUITY (Lexis Nexis, Butterworths, Australia 2007) where the learned authors in commenting on equity, at pages 6 to 7 stated inter alia that: ".. ... . the second area of equity's operation is called the concurrent or auxiliary jurisdiction. This is the area of equity (that) supplements common law rights and obligations ........ . the plaintiff will have a cause of action at common law, but equity supplements the position of the parties. Equity here is supplementary." It was submitted that in view of the foregoing, the reliance on a principle of equity cannot be deemed to be a misdirection. The Respondent's response to ground seven is that the learned trial judge could not have referred the matter to the Deputy Registrar for assessment as she found that the matter was not properly before the Court. Counsel for the Respondent relied on the Respondent's submissions in support of ground one and the case of PACKER v PACKER11 to support J21 their view that they can never be comfortable in settling for values lower than those which the Court can offer simply because it has never been done before as stated by Lord Denning when he made the following observation: "what is the argument on the other side? Only this, that no case has been found in which this has been done before. That argument does not appeal to me in the least. If we never do anything that has never been done before, we shall never get anywhere. The law will stand whilst the rest of the world goes on; and that will be bad for both." In concluding, Mr. Chikuta humbly prayed that the decision by the Court below be upheld. We have considered the grounds of appeal, arguments by the parties, authorities and judgment appealed against. With regard to ground one, we find that it is not disputed that section 16 of the Act applies to situations where the Court grants a tenancy, and the parties thereto are expected to agree on the rent payable and effect it. In default of agreement, the court has jurisdiction to determine the rent subject to the considerations in the Act. Section 28 on the other hand, applies to situations where there is a tenancy already in existence between the parties. If the tenant thereto is J22 aggrieved by the rent payable, then he or she may apply to the Court for determination of rent. Such rent shall be substituted for rent complained against under the tenancy. In this case, we noted that the bone of contention is whether section 28 of the Act gives the tenant the right to seek the intervention of the Court without attempting to resolve the grievance with the landlord . We further noted that the learned trial judge took the view that there was no default of agreement on the rent payable or proposed, as the parties had not discussed the rentals so as to determine whether there was a dispute or not. We acknowledge that the cases of THE MINISTER OF INFORMATION & BROADCASTING SERVICES & ANOR v FANWELL CHEMBO & ORS and ANDERSON K. MAZOKA & ORS v LEVY PATRICK MWANAWASA & ORS12 cited herein are instructive on the interpretation of statutes that the primary rule of interpretation is that words should be given their ordinary grammatical and natural meaning. It is only when there is ambiguity in the natural meaning of the words, that recourse can be had to the other principles of interpretation. J23 In the present case, the learned trial judge found that there is no ambiguity in the natural meaning of the words used in section 28 of the Act. However, she considered the fact that both sections 16 and 28 of the Act confer jurisdiction on the Court to determine rent in specified circumstances and found it necessary to construe the Act as a whole and not piece meal so as to achieve a purposive interpretation of the Act so as to remove absurdity. We are alive to the guidance given by Lord Denning in the case of NORTH MAN v BARNET COUNCIL13 , when he stated inter alia that: "The literal method is now completely out of date. It has been replaced by the approach which Lord Diplock described as the 'purposive' approach. He said so in KAMMINS BALLROOMS CO LTD v ZENITH INVESTMENTS {TORQUAY) LTD (1970) 2 ALL ER 871 at 893, (1971) AC 850 at 881); ..... In all cases now in the interpretation of statutes we adopt such a construction as will 'promote' the general legislative purpose underlying the provision. It is no longer necessary for judges to wring their hands and say: 'There is nothing we can do about it.' Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the judges can and should use their good sense to remedy it - by reading words in, if necessary - so as to do what Parliament would have done had they had the situation in mind." In relation to the present case, we find that the learned trial judge was on firm ground when she used a purposive approach in interpretation of J24 section 28 by introducing section 16 of the Act in order to construe the Act as a whole so as to ensure that there is no ambiguity in its interpretation. We, therefore, find no merit in ground one and we, accordingly dismiss it. We turn to grounds two and three. From the evidence on record and the arguments by the parties, we are satisfied that there is no dispute that the Respondent herein is a body corporate that is wholly owned by the Government of the Republic of Zambia, with a legal capacity to sue and be sued in its own name. In holding this view we are supported by the fact that the Respondent was not represented by the Attorney General pursuant to the State Proceedings Act, Chapter 71 of the Laws of Zambia. Therefore, we find that the Respondent and its majority shareholder, the Government of the Republic of Zambia can be distinguished as separate legal entities as was demonstrated in the case of MWAPE & 61 ORS v ZCCM INVESTMENTS HOLDINGS LTD PLC. where the Supreme Court stated that: "In the present case, we accept the established position that the company is at law a different person altogether from the subscribers or shareholders. Certainly, the celebrated case of SALOMON v SALOMON on the point is still good law. Therefore, as submitted by Mr. Kaite, the respondent as the J25 company, and the Government, as majority shareholder are not one and the same person at law." Similarly, in this case, as rightly submitted by Mr. Muhanga, the Respondent herein and the Government of the Republic of Zambia, as majority shareholder, are not one and the same person at law. Consequently, the Respondent being clothed with legal capacity, entered into a tenancy agreement with the Appellant and let out the premises. We also accept that the demised premises are ultimately owned by the Government through the Ministry of Higher Education even though both have no privy of contract to the tenancy agreement as the Respondent acted in its capacity as a body corporate. In the circumstances, therefore, we find that the learned trial judge misdirected herself by holding that the premises were let out by the Government. We, therefore, find that grounds two and three have merit and they, accordingly, succeed. In ground four it is contended that the learned trial judge did not give a balanced analysis of the evidence and submissions before her in arriving at her decision. Upon our perusal of the judgment, we found that J26 she considered the affidavits and skeleton arguments even though she did not specifically mention the skeleton arguments in reply but it is evident that she considered them in arriving at her decision, even though she took a different view from ours that the premises were let by the Respondent in its capacity as a body corporate and not Government. Therefore, we are of the view that it cannot be said that the learned trial judge fell into error by giving an unbalanced evaluation of evidence within the guidance given by the Supreme Court in the case of THE ATTORNEY GENERAL v MARCUS K. ACHIUME. However, in light of the guidance given in the case of NKHATA & ORS v THE ATTORNEY GENERAL OF ZAMBIA we are of the considered view that her decision with regard to the application of Act in section 3(2)(c) and with regard to who let the premises to the Appellant, ought to be reversed as the said findings are not supported by evidence or facts. Therefore, in this regard, we find that ground four has merit and it, accordingly, succeeds. We turn to grounds five and six which are linked to our finding in ground one that the learned trial judge properly directed herself in construing section 28 of the Act as implicitly requiring the parties to a J27 tenancy agreement to first engage in dialogue, and in default of agreement to seek an order of determination of rent from the Court. Consequently, we found that she was on firm ground in dismissing the application due to the Appellant's failure to engage in dialogue with the Respondent over the proposed rental increase. In ground five the learned trial judge is faulted by the Appellant for not proceeding to determine the rent of the business premises in accordance with section 28 of the Act which compels the court to do so. Upon our perusal of the said provision, we noted that it is couched in mandatory terms that the court shall determine the rent which shall be substituted for the rent agreed to be paid under the tenancy. That being the legal position, we find that the Court below should have determined the rent. In the circumstances, therefore, we find that there is merit in this ground and it, accordingly succeeds. We turn to ground six in which the learned trial judge is faulted for relying on legal works in assisting her in the interpretation of section 28 of the Act. It was argued that such reliance on other works by learned authors is a misdirection, as such works cannot take precedence over express and mandatory provisions. J28 We are alive to the fact that it is common knowledge that reference to works of eminent jurists in arriving at judicial decisions is a common and well accepted practice, not only in Zambia, but in most common law jurisdictions, as such works are of persuasive value. Therefore, the Appellant's view comes to us with a sense of shock. We, accordingly, find that it lacks merit and we dismiss it. Finally, we turn to ground seven in which it is contended that the learned trial judge misdirected herself by not referring the matter to the Deputy Registrar for assessment to have the valuation report after she conceded that had it been available, she could have determined the rent. However, whilst we find that the learned trial judge was required to determine the rent to be payable under section 28(2) of the Act, the question was how she could do so without a valuation report. We are of the considered view that she should have ordered a valuation report to be submitted to the Court for the purpose of determining the appropriate rent. In the circumstances, we find that there is merit in ground seven and it, accordingly succeeds. Premised on our finding that the learned trial judge should have determined the rent, we, accordingly, order that this matter be sent back J29 to the trial judge for her to determine the rent based on a valuation report of the demised premises so as to determine the prevailing market rental in the open market. In conclusion, the Appellant having succeeded in five grounds and being unsuccessful only in two grounds, the net result is that the appeal succeeds. As costs follow the event, we order that the Respondent bears the costs in this Court and in the Court below. DEPUTY JUDGE PRESIDE --~UOl,.k/~~---······· J. Z. MUL~GOTI COURT OF APPEAL JUDGE F. M. LENGALENGA COURT OF APPEAL JUDGE