Midlands Uphosteers Ltd v Patel and Ors (Appeal 27 of 1993) [1993] ZMSC 108 (8 September 1993)

IH THE SUM COURT OF ZAMBIA APPEAL 80. 27 OF 1993, tiOLbEa AT LUSAKA, (Civil jurisdiction) MlOLAiibS OPHOSTEERS LIMO Appal ant IS M. R. PATEL ANO OTHERS Respondents Cora®: Sate a, Chirwa and Huayaaba, M«S» 20th July ar* S. Sikota of Centre Chambers for the appellant. Mr. E. J. Sh&owana, &C«» of Shawano and Company* for the respondents. ! — ■■'■'■"" "* I.....................■"'» '■ I'* ""M ■" ■ —'■«* ........................................!■ ,i mi■ I JUDGMENT Sakala» J. S.. delivered tee judgaent of ths court* * ' ' • . . .: ■ ? t' # ! . ■ * ! • ' • ■ ■ • •■ This is an appeal against a judgment of the High Court dismissing tee appellant's application for a new tenancy at Stand no. 469 *C’» Cairo road* Lusaka, for a period of six years froa 1st August 1991 with provisions for annual reviews of rent and an option to renew In 1997* < . • ■ - ’ * * . - . ‘ • ■ ■ -■ a. * .- • rf/t ',L’ < ", • • . ‘ . The brief facts leading to tee appeal are that* the appellant had teen and is still carrying on his business at Stand Mo. 469 "C* Cairo road* Lusaka, since 1957, They promptly paid rent for all the years. On 7th January, 1991, tea appellant received a notice to vacate tee premises. On 27th June, 1991 the appellant filed an application with tee court for a new tenancy. On these brief facts, tea learned trial judge observed (hat the application fell within tee provisions of tee Landlord and Tenant (business Premises) Act Cap 440, Thereafter tee court set out tee relevant provisions of Section 4 (1) (a) relating to contlnuatlon of tenancy and grant of new tenancy; Section 5 (1) (2) relating to termination of tenancy by the Landlord and the previsions of Section W (1) (2) (3) and (4) | routing to art order by court for grant of a new tenancy. The court found that Section 10 (3) of the Act limited its powers unless subsection (4) applied. The court noted that the application had been mode five months and nearly three weeks after the notice to quit Md been served on the appellant and that the prescribed period of not "more than four months* had not been complied with. The" court also noted that no application for leave to apply out of time as required by Section 10 (4) of Cop 440 had been made. The court concluded that the application failed for non compliance with the mandatory provisions of Section 10 (3) of Cap 440 and declined to consider the matter any further. , Two grounds of appeal were filed namely, that the learned trial judge erred in holding that Section 10 (3) of Gap 440 had limited the court's ' power unless subsection (4) of the some Act applied and that the learned trial judge erred by not considering the points in the appeal and appellant’s advocate's submissions. »« Arguing the appeal before us, Hr. SUota on behalf of the appellant pointed out that the main point in issue was whether the appellant should have been allowed to argue their case in view of the provisions of Section to (3) of Cap <40. He submitted that the respondent having felled to raise on objection at the earliest opportunity until the submission stages the court should have decided the application on merit. Counsel further submitted that the court having allowed the appellant to argue his case, It should be assumed by inference that leave Md been granted, particularly ■ that there 1$ no specific procedure set out for making sn application under Section 10 (4) of Cap 440. He pointed out that the delay in the present case was only for one month and twenty days and that on the face of the record* sufficient reasons for the delay had been shown. Mr. Sima informed this court that the matter having been heard and argued, this court was competent to either decide it on merit or remit it to the High Court for that court to determine whether a new tenancy should be granted. Mr. Slkota lamented that .■ ■ • * 3 • the appellant should not ba made to suffer due to a technical mistake brought about by Ms advocate* Mr. Shawana on behalf of the respondents pointed out that the issue in the appeal was short in that it was common cause that the application for the naw tenancy hod been cade after the time limit specified In Section 10 had expired* He submitted that the terms of Section 10 (3} were not only specific but mandatory* He pointed out that the only exceptions are contained in Section w (4) which requires that sufficient reasons for the delay must be given before a court can grant leave* Mr* 5h«wana wondered why the advocate for the appellant did not apply for leave to file application out of time when the matter was raised though belatedly* according to counsel the court in this matter* in the absence of an application for leave* had no alternative but to hold-that Section 10 (3) had not been complied with. He submitted that for the appellant to succeed, he must snow on record that ho had given sufficient reasons for the delay. Mr. Shamwana further submitted that the provisions of Section 10 (4} of cap 440 can only be exercised by an applicant who should show sufficient reasons and not at the court*s own motion* He pointed out that there was no application and no sufficient reasons given in the instant case. In the circimunces, no submitted that the court was not competent to exercise its discretion. Mr, Shawano also pointed out that the issue was not that the appellant was a good tenant or not and that putting the blame on the lawyer who acted for the appellant could not assist the appellant at this stage* He submitted further that this court Is not competent to determine the appeal on merit as it was limited to deal with the matter on whether or not the teamed trial judge was right to dismiss the application for non compliance with the provisions of Section 10 of Cep 440. ?'■ ■■ ■ ....................... . ■ ’ ■ . ‘ / Me have carefully examined the Judgment of the trial court. It is ccsmon cause that the application for a new tenancy failed on a procedural ground of having been made out of time and there having been no application • f , r. ■>■ • ’ $ •**« \ ‘I * ■ > ■ •: V ■■ •" A ; 4/*** • ; . - ■' . .. ■ trade for leave to apply for the grant of a new tenancy out of time. Section 10 (3) of the Landlord and Tenant (Business Premises) Act Cap 440 ' reads as followsi* wio (3) subject to the provisions of subsection (4) no application under subsection (I) of Section (4) shall be entertained unless it is made not Uss than two months nor more than four months after giving the landlords notice under Section 5 or as the case may be after making of the tenants request for a new tenancy.* Section 4 (1) provides for the continuation of a tenancy end the grant of a now tenancy on application by a tenant; It was not in dispute in the present appeal that the appellant applied for a new tenancy after one month and twenty cays after the specified period of “....not less than two months' or more than four months after giving the landlord notice..*4««u* Th® words of subsection (3) sake it mandatory that the application be made within the prescribed parted. The words are %..........no application shall be ' entertained unless it is made not less than two months or more than four months.........**. The exceptions to subsection (3) of Section 10 are found in subsection (4) of the same Section which reads:- *4 The court may for sufficient reason on such terns as it thinks fit, permit a tenant to apply to the court for a new tenancy under subsection (1) of Sectlon4, notwithstanding that the application is not made within the period specified in subsection (3)*. This subsection by the use of the word W gives a court a discretion. The exercise of this discretion however is dependent on •sufficient reason* being shown by an application why the application is being mads out of time. The fact that one had been a good tenant cannot -in cur view be a sufficient reason for granting an applicant leave to apply out of time. Ho are unable to agree with Mr. Sikota that we must assume that leave had been granted because th® matter had been heard and fully argued before the court* The situation would have been different had the appellant applied for leave and given reasons for being out of tm even at the tail end of the case* This they did not do* There is no basis for us to assume reasons for the appellant having made the application out of time. Ue agree with Hr. Shamwana that the provisions of Section 10 (3) (4) are not only specific and clear but also oanaatory* The guestion of the appellant's advocates having made a technical mistake does not arise and is not a "sufficient reason." This appeal is dismissed with costs* <*U Sakala* SdRSgOW W ****•»•*•*•«•«•«*••**•*»»**•« P*K* Chirwa, SUPREME OW JUDGE, I ****** M# Husyaoba* SUPREME »