Neira Investments Limited v Northern Province Co-operative and Marketing Union Limited (2019/HP/0454) [2019] ZMHC 34 (29 November 2019)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: NEIRA INVESTMENTS LIMITED ' . 2019/HP/0454 PLAINTIFF AND NORTHERN PROVINCE CO-OPERATIVE DEFENDANT AND MARKETING UNION LIMITED Before the Hon. Mrs. Justice R. Chibbabbuka on the 29th day of November, 2019 F'or the Plaintiff: Mrs C. Chibabwe, Messrs Ferd Jere & Company F'or the Defendant: Mr \V . C Simutcnda, Messrs GDC Chambers JUDGMENT - {_ . . Cases referred to: J . Scholl MFG Co. Ltd us. Clifton (Slim-Ii rte} Ltd CA ( 1 967) 2. G. F Construction Limited v l.!uclnap (Zambia) Limited and Unitechna Limited 3 . Mhango us. Ngulube & Others (1983) ½R 6 I 4. Chinyanta and Others us Building Constmction Limited and Another, Appeal No. 158/2015 (2018) 5. Phillip Mhango us Dorothy Ngulu/Je and Others (1983) Z. R 6 Legislation referred to: Landlord and Tenant (Business Premises) Act, Chapter 1 94 ot the Laws of ~ambia Other works referred to: J2 Halsbury 's J,aws of England, Thi,·d Edition, Volume 12, paragraph 130 at page 90 Megarry & Wade, The Law of Real Property at page 79 1 and paragraph 14-072 Blade's Law Dictionary, Ninth Edition at page 592 By a writ of summons a nd statement of claim taken out on the 22 nd March, 201 9 the Plaintiff sought, the following reliefs; 1. An order for the Defendant to compensate the Plaintiff ZMW120,000.00 for loss of business; 2. A Declaration 'th a t the Warrant 6f Distress is null and void; 3 . An Order of damages for trespass; 4. Costs; and 5. Any other relief t:he Court d eems fit. The Plaintiff's case , according to the statement of claim, was that by way of two lcnan cy agreeme nts dated 3 1 st August, 2018, the defendant leased two of its properties to th e p la intiff known as Plot 154 and Plot 131 / 132 at a monthly ren t of 7,MW 10,000.00 a nd ZMW6,000.00 respectively. It was an express term of the i cnnncy ;,,igrccme n ts tha t the effective date was 1 st September, 2017 valid for thrc(· mo nths sulJjc:ct l o ren ewal by either party. Following th e lapse of the tenan('y ~1g rer:rne n ts, the pa rties did n ot renew their agreements but the p lai nl iff con tinued to occupy the aforesaid premises a nd remitting renta ls to th e defendant. Howev<::r , on the 1s t December, 2 018 the plaintiff gave on e month's notice to the d efe ndant due to its restructuring its business model. ( ' Pursua nt to the notice the plaintiff paid rentals in the total sum of ZMW1 6 ,000.00 and vacated the leased premise s on 7 th J a nuary, 2019. On or about the 25th January, 2019, acting on a Wa rran t of Dis tre s s issued by the d efeI_1dant, th e Sh eriff of Za mbia broke into the plaintiff's premises. The Sheriff of Zambia seized among other things 50 b ags of fe rtilizer purporting that the d efendan t was owed rent by the pla intiff. That th e defend a nt's action was malicious a nd resulted in the plaintiff failing to trade for 1 O days and led to loss of ZMW120,000.00 in expected profits. It 1s for these reason s that the Pla intiffs decided to commen ce this action. For its part, the 1 s t Defendant in its defence averred that contrary to the plaintiffs statement of claim, the tenancy agreements between the plaintiff and the defendant relating to the business properties known as Plot 131 / 132 and Plot No. 154 situate in Kasama were not for a period of three months only but were for a longer duration . Further that the rentals were p a yable three months in adva nce and not ·one m onth in advance as alleged · by the plaintiff. The d efenda nt avered that the pla intiff continued b eing in occupation of the d efe nda nt's business pre mises. Consequently the plaintiff was liable to pay the re n tal due a nd paya ble lo th e d efe ndant in respect of the months of December, 2 01 8 a nd Janua ry a nd Fe brua ry, 2019. The plaintiff did not give any notice to vacate t he d efe ndan t's bu s ines s pre mises and is liable to pay the sum of ZMW32,00 0 .00 being the ba la n ce outstanding as indicated in Invoice Nos. 129 a n d 13 0 issu ed by th e de fe nda n t to the plaintiff in that re spect . Further that the swd one month s' not ice \:vas illegal a nd void ab initio a nd contrary to the requiremen ts a t law in tht> Landlor d and Tenant (Business Premises) Act, Chapte r 1 9✓1 of th e l a w s of Zambia th a t requires six months' notice to be given. Furt h e r thut the pla intiff on ly pa id the sum of ZMW1 6 ,000.00 against the outsta nd ing renta l a rrea rs in the su!11 of ZMW48,000 .00 th ereby leaving an u n pc.1id ba lcmce of ZMW 32 ,000. 00 . The plaintiff did not va ca te the defendant's premi s es on th e 7 th . Ja nua ry , 201 9 a s alleged but continued being in occ upation of the said pre m ises. The pla in tiff o nly h a nded ove r the business premis es on th e 5 th March , 2 01 9 by formally h a nding ove r th e keys to the defe nda nt a nd signing a h a ndove r note . The d e fe nda nt properly and lawfully issu ed a Wa rrant of Dis tress to recove r the outs ta nding renta l a rrears in the sum of ZMW32,000.00. The a lleged loss of ZMW 12,000.00 claimed by the pla intiff is baseless a s the pla intiff has failed to p lead the alleged loss with sufficient pa rticularity to subs ta ntiate the loss . The d efendant also went on to make a Counter claim for the following reliefs; 1. An order for payment by the plaintiff to the defendant of the sum of ZMW32,000.00 only in respect of the balance sum of the outstanding rental arrears due and payable by the plaintiff to the defendant. 2. Interest on the said sum of ZMW32,000.00 at current Bank of Zambia lending rate from 28th February, 2019 until full and final payment or settlement by' th e plaintiff. 3. Costs of the action herein, a nd 4. Any other relief the Court may deem fit under the circumstan ces. At the trial of the action the plaintiff called four witnesses. PWl was Sydney Mwa ndila the Regional Manager of the plaintiff company in the Northen and Muchinga provinces of Zambia. PWl 's testimony was as follows: Amongst his duties Ds Regiona l Manager, he would sign lease agreements on behalf of the pla 111tiff and he reca lled s igning a lease agreement between the plaintiff and th e d<.:fcndant on th e I s t Septembe r, 20 17. The duration of the lease agreement was 6 mon1 hs fn,m th e l ~1 September, 2017 to the 28111 February, 2018. After the lease agrccnwnt expired the depot manager in Kasama was asked to make a follow up wit h the la ndlord in I<asama. In giving feedback to the plaintiff's h ead office in Lu saka, the depot manager advised tha t as t h e plaintiff still had stocks in the warchousc it was agreed that the plaintiff should still continue ( . staying at th e d e fendant's premises and pay re nt'.:lls up to December, 2018. At the end of October 2018, the depot manager was informed by the plaintiff's h ead office to confirm with the defendant that the plaintiff would vacate the defendant's premises at the end of December, 20 18 as the plaintiffs' stock were a lmost finished. The plaintiff did vacate the defendant's premises a t the end of December, 2018 and the depot manager was told to go a nd handover the keys to t he landlord the defendant herein. The d epot manager informed the plaintiff's h ead office that the defe ndant had refused to take over the - JS warehouse as the plaintiff never gave notice to vacate. PW 1 got preoccupied with work in other depots and sometime in January, 2019 he received a call from the Assistant Depot Manager by the name of Ivy Kalunga. The Assistant Depot Manager informed him that they had been visited by some bailiffs who had come to collect 50 bags of Urea to r ecover the rentals that were pending for the plaintiff's Northern Province branch. The execution took place in January 2019, at a warehouse belonging to the Kasama District Co-operative Union and the5e premises did not belong to the defendant. In cross-examination PWl responded as follows: The plaintiff entered into two lease agreements relating to two different properties known as Plot 131/ 132 and Plot 154 both in Kasama. The rent at Plot 131/ 132 was K6,000.00 payable 3 months in advance as per clause 4.1 of the lease agreement. The rent a t Plot 154 was Kl0,000 .00 payable 3 months in advance a s pe r cla u se 4 . 1 of the lease agree m ent. Although he had told the Court that bo th lease agrccm{' Jlls we re valid for 6 months paragraph 4 in the statement of c la im indicated t l 1;Jt th e lease agreemen ts were valid for 3 months. There was no n otice to vac,llc in th e bundle of documents before the Court and neither was th e re any docume nt to show the h andover of the property to the defendant in Decembe r, 2 0 I K. Tha t a lthough paragraph 7 of the statement of claim states that the p la intiff v,1cc.1 tcd the defendant's premises on the 7 th January, 2019, h e was basing hi s s tut c: ment to the court, on vaca ting in December, 2018 on what (.. the depot managcr had told him as a ll their stock wa s out of the defendant's ware house by December, 2 018. Further, there was no hand over note for the 7 th January, 2019. There was also no lette r in response to the defendant's letter of demand for overdue rent in the sum of K32,000.00 where the plaintiff was warned that a Warrant of Distress would be issued against it. Additionally, the plaintiff a lso had not brought any evidence before Court to show that 50 bags of Urea h a d been seized by the Sheriff of Zambia. Further the plaintiff h a d not brought a ny docume nt to s how how the sum of Kl 2 0,000.00 that it h a d - . ·····-- .. claimed as having lost was arrived at. Equally, the pla intiff had n ot brought any document from the Sh eriff as proof of execution. The handover of the keys was done on the 5 th March, 2019 by Ivy Kalunga as per the note in the defendants' bundle of documents. The notice to vacate was given verbally by Henry Chipasa the d epot manger in Kasama at the time. He never called the landlord over their refusal to get the keys in December, 2018. PW2 was Issac Ngoma, an Accounts Assistant in the plaint iff company whose testimony was as follows: He was in charge of making payme nts to the d e fendan t. He used to make the payment of re ntals 3 months in advance and the sum would be K48,000.00. The re ntals were in relation to the warehouses that arc in Kasama. The payments were made by way of a bank deposit the dctaib of which arc as per pages 5 to 14 of the plaintiffs bundle of documents as follows: l "' September, 20 17 to 1:;t December , 2017 I "' March , 201k t(J 1'·1 . Ju ne:: , 20 18 1s1 . June, 2018 to 1·-1 September, 2 018 1 s, Septcm bcr, 20 I 8 to l !,t December, 2018 ( · I st Decembe r, 20 J 8 t.o 1 s t . January, 2019 The las t payment m a de was for one month's rent in the sum of Kl6,000.00 and this was because the plaintiff h a d given notice to va cate the defe ndant's premises . Th e plaintiff paid a ll its rentals in full from the time they started renting the defend a nt's wa re house up to the time the pla intiff gave notice. The plaintiff vacated lhe defenda nts' pre mises in December, 2018 but before the 3 1 s t December, 20 18. J7 In cross-examination PW2 responded a s follows: The defe nda nt only issued the plaintiff with a n invoice for the firs t three months of the p laintiff's leasing of the defendants' warehouses. During the entire period the d efend a nt neve r issued any other invoice. There were two invoices issued on the 5 th November, 2018 by the defendant as per page 5 of the defenda nts' bundle of documents. There was no proof of the notice given by the depot manager n either wa s there a ny proof of the plaintiff h a ving vacated the d efendant's pre mises in December, 2018. He did r.eceive the letter 9f demand from ~he defendant for rental a rrears which he did n o t respond to as at the time he was aware that the pla intiff h a d vacated the d efe nda nts' premises. He only informed th e d epot m a n ager abou t th e letter of demand but that he did not have proof of th e same a s it was by way of a verbal communication. He was aware that the lease w a s in wr iting a nd th at there is a pre scribed format in which Notice must be give n . P\,\13 wc.1s H c rn·y Ch ikusu a De pot Ma n ager for the plain.tiff who te stified as follows: H is d u I ics inc lude receivi n g a n d dis patching fertilizer to the district on be h a lf r,f th e· pb in tilT. He was a ware of the lea se agr eement e ntered into betwee n th e p la in riff u 11d th e d efen dant. Both leas e a greem e nts we re from the 1 s t Septe m ber, 2 0 l 7 to th e 28 th f◄'e bru ary, 2 01 8 . After the 28th Februa ry, 20 18 the p la intiff in fo rm ed t h e defe n dant th at they still had some stock in the wa re hou ses a nd th a t th e pla intiff would want to continue re nting the d e fe ndan t's p remises until the s tock was cleared . The defenda nt a greed to this proposa l a n d the said agreement between the p a rties wa s ora l. The oral agreement took effect from th e 1 s t Ma r ch, 201 8 a nd the end of the s a me w a s n ot specified a s it was d e pen de nt on when the p la intiff would be ready to move o ut of th e d cfe n d :::1 n I's premises. On th e 27 t h Octol ic-r, 2 0 18 he was info rmed by the pla intiff th a t h e was s upposed to ck:,·ir til e w ;i r·c h ou sc by the 31 st Decembe r , 2 018 a nd tha t h e s liou ld info rm the d d:' 11 d :1nt. When he went to th e d efe nda nt's office s h e did t c· I t not find the Finance Manaoer but found the Accountant instead who informed him that he could only speak to the General Manager about the plaintiff's Notice to vacate who equally was not in the office. The Accountant advised him to return after a week as the General Manager would be back in the office the n . After a week he returned and as the General Manager was not yet back h e called him. The General Manager advised him that the handover could not be done in November as according to the lease agr eement the plaintiff was supposed to give 3 months' notice and at that time in December, the 3 months' notice could not take ·effect. The General Manager was r'ef erring to the lease agreement that was for the period 1 st September, 2017 to 28th February, 2018. The General Manager had brought some invoices to the plaintiff demanding 3 months payment and that is when he, PW3 informed the plaintiff about the matter. They vacated the defendants' premises on the 31 st December, 2018 as pe r instructions received from the plaintiff's h ead office. They also took the keys to Lhe defendan t on the 3 1 st December, 2018 but the defendant informed him th,-it Lh(·y could not handover as the defendant had only received part payrncnl. I k held onto the keys and on the 5 th or 6 tl1 of January, 2019 he left the keys w itlJ a colleague as he had to travel to Mpika. At the time he left the pla intiff \.vus no longer occ upying the defendants' premises. In cross-examination PW3 responded as follows: He h a d no proof of the ( · telephone conversation where he informed the d efend ant of the plaintiff's intention to vacate the defendant's pre mises. Whe n h e was told that he could not handover properly due to lac k of notice to the defendant, he informed the management of the pla intiff company. Upon passing on this information he was not sure whether the plaintiff did anything a bout it. He was the one who atte mpted to hand over the keys to the landlord which keys the la ndlord refused to get. He did not know whether the defendant h ad since been paid by the plaintiff. When h e went to Mpika he left the keys . .. ::· .: ~ : .. . ·-: .:;_: ... :·:~-~ .· ·: . . J9 with Ivy Kalunga and she signed the handover note on the 5 th March, 2019. He was not sure why the keys were only handed over on that date. When he left Kasama in January, 2019 his colleague Ivy Kalunga took over from him as the warehouse manager. PW4 was Ivy Kalunga who testified as follows: She is an Assistant Depot Manager in the plaintiff company and some of her duties included dispatching fertilizer on behalf of the plaintiff. In Kasama the plaintiff had about four sheds and they· closed about three. Two of the sneds that closed belonged to the defendant which they closed on the 3 1 s t December, 20 J 8. The reason for closure was that the stock had finished a nd the little that was there was moved to the Kasama District Co-operative Union Shed. On the 5 th March, 2019 she h a nded over the keys to a Mr. Munthali of the defendant company. Whilst she was a t the Kasama District Co-operative Union the bailiffs came wi th a W8rran t o f Distress issu ed by the defendant to collect bags of Urea for non-payme nt of re ntals. She then called the management ·of the plaintiff and a lso infornwd th ~ Regional S upe rvisor, Sydney Mwandila, who advised her to wait as Lhr·y were s t.i ll communicating with the h ead office. She tried to stop the: baili ffs from c,,Jlccting the bags of Urea who in turn informed her that if the pla in tiff d id not have; the money to pay the defendant, they had to collect the 50 bags of fertilizer which they did . The bailiffs refused to leave any document with PW4 on the basis that. it was not her document and she did not sign any doc ume nt as proof of the collection of th e 50 bag3 which s h e had counted. In cross-examination PW4 responded as follows: She did not have any proof to confirm the number of bags that were seized by the bailiffs. She was not aware of the pla intiff's claim of K 120,000.00 as loss suffe red a nd that she did not give this figure to th e plaintiff. However, she knew that this figure was arrived at a s a result of the bags of Urea that were collected by the bailiffs and that their warehouse was closed for a lmost a month. The bags were returned· on the 1 s t Fe bruary, 20 19 a nd as pe r the stateme nt of cla im the bags were • JlO collected by th e defendant on the 25th January, 2 019. The period b etween the collection and return was not one month but that even after the collection of the 50 bags they had to keep the shed closed as the bailiffs were supposed to collect a total of 100 bags . At the time of execution, she had 1,770 bags in the shed and the bailiffs we re only able to collect 50 bags as their vehicle was too small to carry 100 bags. She ~id not hand over the keys for the warehouse to the b a iliffs and the k eys remained in h er cu s tody. The b a iliffs left her with a docume'nt for the 100 ' bags that they were to collect a nd s h e could not r ecall what the document was called and n either h ad s he produced the said docume nt before court. The said 50 bags of Urea were not sold by the bailiffs. They moved out of the defendants' warehouse on the 3 1 s t December, 20 18 to the Kasa ma District Co-operative Union shed with the stock that was damaged as the stnck that was a lrigh t was finished . She only handed over the keys to the dcfr·nclant's wa re house on the 5 th March, 2019. Without the said kc:ys the landlf>rd could no t have access to their warehouse and the defendant co uld n<,t show prospective ten a nts the same. She h a nded over the keys to Mr Munthali and she ::,ignccl a note over the sam e . She did not receive any money for the sale of fertil izer as monies were deposited directly with the bank. She did know the number nf bags that were sold daily although she djd not bring ( ; a ny proof of this before the Court. That was the case for the pl a intiff. The defe nd a nt called one witness, Kingsley Muntha li, DWl, who is the Acting Genera l Ma nager of the d efendant company. DW l 's evidence was as follows: The defenda nt. signed two lease agreements with the plaintiff on the 3 1 st October, 20 17 for two plots being Stand No 154 and 131/132 respectively. The two leases we re s ign ed by Emmanuel Kapambwe a nd Samson Kaonga . The J 11 lease agreement in relation to Stand No 154 was for K6,000.00 per month while the lease agreement in relation to Stand No 131/132 was for Kl0,000.00 p e r month. The duration for both leases was for 6 months from the 1 st September, 2017 to the 28th February, 2018. Both leases had an option to renew. After signing the two leases the plaintiff and the defendant did business amicably until Novembe r, 2018 when the d efendant wrote two invoices dated 5 th November· 2018 numbered· 129 and 130. Invoice number 129 was for ' Kl8,000.00 covering the period December 2018 to February, 2019 a period of 3 months. Both invoices were produced before court and the total amount on the said invoices was K48,000 .00. The plaintiff made a partial payment on the 30th Nove mber, 2018 in the s um of Kl6,000.00 which left a balance of K32,000.00 . the payment or Kl 6,000.00 the pla intiff continued occupying the defe ndants s hed s a n d the d efenda nt through their Kasama office and Lusaka After office started purs ui ng p;1yrne nt of the outstanding balance from the plaintiff. f n Kasa m a llwy wo u ld u sually go to the plaintiff's office to pursue the payment wh c re;Js in L1 .1su k a they would call the plaintiff's head office. The defendant tried by ; t]J means to collect the balance but as no payment was forth coming they engaged their lawyer s , GDC Chambers, to pursue the payment of the balan ce: o n t heir behalf. GDC Chambers, wrote to the plaintiff on the 10th January, 2 019 d e m a nding payme nt of the sum of K.32,000 .00. As no payment was received, a warrant of distn.:ss was issued on the 16th J a nuary, 2019 which was executed on the 17th J a nuary, 20 19. The defenda nt did not recove r the balance from the execution. After the execution Ms. Ivy Ka lunga from the pla intiff company came to the defe ndant company and handed over the keys to their s hed on the 5th Marc h, 2019. DWl mat.le her sign a h a ndover note which he s igned too. The plaintiff did not issue a notice to terminate the lea se agreem ents eithe r orally or in writing. The p laintiff has not settled the outstanding ba lance to date and as such the defendant prays that the Court grants the defendant its counter claim. As at November, 2018 the p lain tiff was still in occupation of the defendants' properties. There was a clause in each lease agreement for renewal of the lease by way of mutual agreement. Since the defendant and the plaintiff were still doing business together the plaintiff continued occupying their shed and was compliant in paying the rentals. Invoice No 129 was from December, · 2018 to February 2019 and was for the sum of K 18,000.00 while Invoice No. 130 a lso from December, 2018 to February, 2019 was for the sum of K30,000.00. The two invoices were for the total sum of K48,000.00 . The plaintiff n ever complained about or challenged these invoices. The plaintiff has not shown a ny proof of the a lleged loss of K120,000.00 and that the fertilizer that was collected by the ba iliffs was returned to the plaintiff. In cross-examination DWl responded as follows: The lease agreements were in \\'riting a nd were from 1 st September, 20 17 to 28th -February, 2018. From the 1 :.. t March, 2 018 the plaintiff continued to occupy the defendants' prcm,sc.;s ,.md p ay re nt for lhc same. Proof of the mutual agreement of the renewa l of the ]c;r. Jscs was the handover of the keys note. For the p eriod 1 st Ma rc h , 20 18 to 1 :. t ,June, 20 18 the plaintiff paid K48,000.00 and for the period J :;t June, 2018 to Js1 September, 2018 the plaintiff paid another K48,000. 00. ( J Jn relation to the month of December, 20 18 the pla intiff paid the sum of K 16,000.00 in the month of November, 2018. The letter of demand included the month of Decembe r, 2 0 J 8 as there was only a partial payment 1n December, 2018 of K1 6 ,000 .00. The period was from December, 2018 to February, 2018 and thereby a balance of K32,000.00 was outstanding. The reference to the continued occupation being by way of mutual agreement was as a resu lt of the continuerl stay of the plaintiff in the d efendant's shed which was shown by the h andover of the keys on the 5 th Ma rc h, 2019. This handover note s ignified that th ere was a silent agreement as the plaintiff n ever disputed the pe riod that they stayed in the d efendant's sheds. Silence means consent and if the plaintiffs had disputed this agreement they would not have continued staying in the defendant's sheds. The plaintiff could not silently leave the defendants premises as they still had possession of the defendants' keys for the two sheds. The plaintiffs' could not leave the defendants' premises without handing over the keys to the sheds as the defendant did not have access to the sheds. He did not have any proof that he was calling the plaintiff over· the balance that was outstanding. He did visit the premises before the Warrant of Distress was issued and the plaintiff was still in possession of the keys. Proof of the pla intiff still being in occupation of the defendant's premises at the time of issuance of the Warrant of Distress is the handover note. He did not have proof to show that he visited the premises before the Warrant of Distress was issued . The Warrant of Distress was proof that the bailiffs collected whatever goods they found a t the plaintiffs' p lace. He did not have any proof to show that the goods collected !J>. t he bailiffs were return ed to the plaintiff. He:: did visit the plnintiff at their premises in Kasama to follow up on renta ls for Ll w period December, 20 18 to February, 201 9 and the plaintiff referred him to their Lusaka office for payments. He did proceed to follow up with th e ph.1int.iffs' Lusaka office several times a nd h e wa s advised that they would return his calls. To date however t h e re h as been n o response to these ( , follow- ups. The proof of Notice of vacating thr. premises was the one month payment of rent by way of cash deposit with Cavmont Bank by the plaintiff on the 30th November, 20 18 in the sum o f K.1 6,000.00. That was the case for th e defendant. Both parties filed into Court written submissions. The gist of the plaintiffs' submissions filed on the 16 th Oc tobe r, 2019 is as follows: In the first limb learn ed coun sel for th e p la intiff submitted that this Court h as discretion . I 14 lo declare _ the one months' notice to vacate given by the plaintiff to the defendant as sufficient and furth e r that the two lease agreements came to an e nd by effluxion of time. For this argument the Court was referred to Section 8 of the Landlord and Tenant (Bus iness Pre mises) Act, Chapter 193 of the Laws of Zambia. It was counsel's consid er ed view that though this section makes it m a ndatory for a tena nt to give three months' notice, the same was not applicable to the ora l agreement which was subsequently entered into by the parties in the case in cas4 as the lease agreements had come to an end by . . effluxion of time. To buttress this a rgument, the Court was r eferre d to the case of Scholl MFG Co. Ltd vs. Clifton (Slim-line) Ltd1 . Counsel s ubmitted furthe r tha t a tenant is not precluded from g1v1ng notice to a la ndlo rd, a ny time prior to the sch eduled termination of a tenancy by efflux io n of ti111c. It was counsel's considered view that the silent lease a greement in issue clict nol conta in a provision for termination by notice but notw1thsta11dini2 . 1 he notice to quit wa s a n implied term of the lease agreement. Counsel c u1111 · 1 ,d, cl I hat the pla intiff could not read terms into a lease : 1grccrnr-r1t t lw I did 1101 t'X is t be tween the plaintiff a nd the d efendant and as sue. h tll!' plain1 iff '.':d--; at liberty to give oral notice to the d efendant at a n y time t hot t h ey wisf wcl 1 <, vaca t e the premises. That by the plaintiff paying one mon th s' rent in Nuv(' mbc r, 20 18 Lo the d efe ndant it was evide nt that the pla intiff did n o t int e nd to continue or re main in the premises beyond ( , Dece mbe r , 2 01 8. In the second limb, counsel a rgued that the Wa rrant of Distress issued by the defendant was wron gly executed a nd tanta moun t to a m a licious act. To buttress this argume nt, lhc courl was referred to the case of G. F Construction Limited v Rudnap (Zambia) Limited and Unitechna Limited2. Counsel conclud ed their subm ission s by urg in g this Court to grant the plaintiff the reliefs sou ght. Those were the s ubmissions for the plaintiff. • C The gist of the defendants submissions were as follows: Learned counsel submitted firstly, that, the plaintiff did not give statutory notice in the prescribed form as required under Section 8 of the Landlord and Tenant (Business Premises) Act, Chapter 193 of the Laws of Zambia. Counsel , contended that by this section the plaintiff was required to give notice in writing and that the failure to do so is manifestly fatal and r enders the alleged oral notice completely ineffective and of no legal effect or consequence. Secondly,. counsel went on. to submit that the plaintiff was a ,tenant at sufferance and in so doing referred the Court to the learned author F. Mudenda's Land Law in Zambia: Cases and Materials at page 65 which states: "A tenant at s u.. Jferance arises where a tenant holds over after his lease has expired and remains in possession without the Landlord's assent or dissent (Hemon v City of London Real Property Co. Limited / 1921 / KR ut 1mge -J 9). The tenant is liable to pay compensation for occupying aucl using the land (Leigh Dickson [1984} 15 QB 60). A tenant at sujfi,rrmce differs from a trespasser in that his original entry w as lau.ifi.1.l cmd from a tenant at will in that his tenancy exists u;ilhout. the lw,cllord's assent. " Counsel contc.;ndcd that the a lleged expiration of the lease agreements despite continued occupation of the defendant's business premises does not exonerate the plaintiff from paying the rental arrears. Thirdly, counsel submitted that the plaintiff had miserably failed to prove the alleged claim for loss of business in the sum of Kl20,000.00 as no evidence was adduced to support this claim. Further that the plaintiff had not a dduced any evidence to show that the a lleged fe rtilizer was ac tua lly seized by the bailiffs under the warrant of distress issu ed by the defendant and h ow this led to the alleged loss of business for 10 days. To buttress this argument, the Court was Jl6 ref e rred to the case of Mhango vs. Ngulube & Others3 where the Supreme Court stated: "Any party claiming a special loss must prove that loss and do so with evidence which makes it possible for the Court to determine the value of that loss with fair amount of certainty." In s~mming up their submissions the d efe nda nt's counsel a rgued that the defendant h a d proved its counterclaim against the pla intiff on a balance of • • f , f probabilities. It was coun sel's considered view that the defendant's evidence was credible and not discredited as the defendant h a d shown that the plaintiff C was in occupation of the defendants' premi ses under lease agreement until the 5 th March, 2019 when h a ndover of the key was done. That the defendant duly invoiced the pla intiff for re nt of the two business premises in the sum of 1<48,000.00 but th at the p la intiff only p a id the sum of K16,000.00 thereby leaving a bala n ce or 1<32,000.00. Lastly th at despite follow ups and the issuance or a Warrant of Dis tress the p laintiff fai led a nd neglected to attend to settlement of the sum o/' 1<32,000.00 whic h sum is still due and payable to dat<' . Counsel urgc.:d this Court to e nte r judgment in favour of the defendant wirh cost s. Those we re th e: s ubmissions for the defe ndant. I a m indebted to both parties for th e ir submission s and have ta ken the ( 1 same into considera tion . Th e undisputed fac ts a re that: 1. The plaintiff a nd the defe nda nt e nte re d into two written lease agreem e nts in respect of Plot No . 131/ 132 Kasama a nd Plot No. 154 Kasam a for a period of 6 m o nths commencing on the 1 st September, 2017 a nd ending on the 28t11 February, 2 018. 2. Rent for Plot No. 131/132 Kasama was K6,000.00 and rent for Plot No. 154 was Kl 0,000.00. The rent for both properties was payable three months in advance. 3. The leases were subject to renewal at the expir·ation of the 6 month period by mutual agreement of the parties. 4. At the expiration of the leases in February, 2018 the plaintiff and the defendan t continued in their relationship without any written leases. 5. The· defendant issued a Warrant of Distress in January, 2019 . The crux of this matter lies with the nature of the tenancies that existed r · between the plaintiff and the defendant in respect of the properties that were leased out to the plaintiff. It is not in dispute that the pla intiff and the defenda nt e ntered into two lease agreem ents in respect of Plot No. 131 / 132 a nd Plot No. 154 both of Kasama from the 1 st September, 2017 to the 28th Februa ry, 2018. The type of tenancy that existed in this period was a lease for a fixed period. Once these leases came to an end by way of effluxion of time the nature of the tcmrncics c h a nged between the plaintiff and the defendant to that of a tem.111cy a t will a nd the n into tha t of a periodic tenan cy. Hasbury's Laws of England, Third Edition, Volume 23 paragraph 1153 explains that: "A tenant, who with the consent' of the landlord, remains m possession afte r his le ase has expired, is a tenant at will until some other interest is created; until for instance the tenancy is tun1ed into a yearly tenancy by payment of re nt." As such, a lthough the .initial leases expired there was a holding out of the leases past the expiration date which prima facie created a tenancy at will and the same transitioned into a periodic tenancy as the piaintiff continued to pay the defendant rent. Jl8 Halsbury1s Laws of England, Volume 27, Fourth Edition, paragraph 202 at page 154 states: "A holding over with the landlord's consent, which prim a f acie gives rise to a tenancy at will, may be converted by the parties by their acts or by agreement into a weekly or other periodic tenancy. " According to Megarry & Wade, The Law of Real Property at page 791 and paragr~ph 14-072, a pe,riodic tenancy cap be created in ~he following ways, namely - "(i) by express agreement; (ii) by inference, such as that arising from the pai1ment and acceptance of rent measured by reference to a week, month, quarter or other period, in circumstances where the parties intended there to be a periodic tenancy and no1 a mere tenancy at will or a licence; or (iii) by cm exrJress provision that the tenancy is to be determinable by some sp ecific JJPrio<l of notice, e. g a quarter's notice" (Underlining mine for emphasis) It is n ot in dispute that the leases expired on the 28th February, 2018 and the pla intiff rem a ined in possession of the defendants' properties beyond that date. Neithe r is it in dispute tha t the defendant continued to receive the rent due a nd paid by the plaintiff beyond that date. Evidently therefore the n a ture of the tenancy that existed between the parties was a periodic tenancy. · Counsel for the defendant h as a rgued that the defendant did not assent to the plaintiff holding over of the tenancy agreements after they expired on the 28th February, 2 018. I do not acce pt this argument as the defendants' own witness, DW 1, stated the following in his evidence in chief: - J 19 "After signing the two leases the plaintiff and the · defendant did business amicably until November, 2018 when the defendant wrote two invoices dated 5th November, 2018 numbered 129 and 130. Invoice numbe r 129 was for Kl8,000.00 covering the period December 20 J 8 to February, 2 019 a p e riod of 3 months.•••••••••· •••••· ... ............... . As at Novembe r, 2 018 the plaintiff was s till in occupation of the defendants' prope rties. There was a clause in each lease agreem~nt for renewal ~f the lease by ·way of mutual agreement. Since the defendant and the plaintiff were still doing business together the plaintiff continued occupying their shed and C was compliant in paying the rentals." From the evide n ce of DW 1 it can be inferred that there was consent or asse nt from the defe ndant as la ndlord, for the plaintiff to continue being in occupation of its properties after the expiration of the written leases on the 28th February, 2018 . l, l·~in be inferred further that, the plaintiff in return continued to pay re nt ::11 1 hi.· agreed inte rval of every three months in advance. Con sequently the dvkndan ts' argum ent that th e tenancy that existed between the pla intiff a nd t }w defe ndant was a tenan cy at sufferance cannot stand. A tenancy a l sum~mnc:e is de fined by Megarry & Wades' The Law of Real Property at pages 794 to 795 under paragraph 14-970 as a ris ing where: " ... a tenant, having entered unde r a vali~ tenancy, holds over without the landlord's assent or dissent ... A te nancy at sufferance can arise only by operation of law, and not by express grant, for it a ssumes an absence of agreeme nt between the landlord ancl tenant. Indeed, it is strictly incorrect to call it a "tenancy " at all, for there is no ''privity", i.e. tenure, between the parties. But since it normally arises between parties who have been landlord and tenant it has acquired the title of tenancy; and the tenant is liable to a claim for "use and occupation ", which prope rly lies agpinst a tenant, rather than to an action for damages for trespass or for mesne profits. There of course be no claim for rent as such, for rent is a service which depends upon a proper tenure by consent." It must be noted that for the defendant's counsel to place reliance on this line of argument, would in essence defeat the defendant's counterclaim as it is clear that a 'tenant at sufferance' cannot make a claim for rent but rather for 'use an~ occupation.' Havin g established that the nature of the tenancy arrangement between the plaintiff and the defendant was a periodic tenancy, it will now be apt to outline how such a tenancy can be determined. Halsbury's Laws of England, Volume 27, Fourth Edition, paragraph 203 at page 155 states: "A weekly or other periodic tenancy is determinable by notice to quit, w hich, in the absence of special stipulations, should be given so as to expire at lhe end of any complete period of the tenancy, and shnuld, subject to the s tatutory minimum in the case of dwellings, be equal lo the lenqt h of pe riod, that is, in a weekly tenancy a week's notice, in a monthly tenancy a month's notice, and in a quarterly tenancy a quarter's notice." Both th e pla intiff a nd the defendant agreed that after the expiration of the leases on the 28 th February, 2018 the plaintiff continued to p ay rent to the defe ndant three months in a dvance. It can be inferred therefore that the term of the periodic tenancy was a quarterly one. Indeed, PW2 took time to show the court the payment of rentals that were made 3 months in advance from the 1 st March ·2018 to the 1st December, 2018. It follows therefore that the plaintiff was required to give a quarter's notice which translates to three months' notice as every quarter in a yea r has a period of three months. The argument advanced by counsel for the plaintiff that there was no obligation for the pla intiff as a tenant to give n otice to terminate due to the lease agreements than to an action for damages for trespass or for mesne profits. There of course be no claim for rent as such, for rent is a service which depends upon a proper tenure by consent." It must be noted that for the defendant's counsel to place reliance on this line of argument, would in essence defeat the defendant's counterclaim as it is clear that a 'tenant at sufferance' cannot make a claim for rent but rather for 'use an~ occupation.' Having established that the nature of the tenancy arrangement between the plaintiff and the defendant was a periodic tenancy, it will now be apt to outline how such a tenancy can be determined. Halsbury's Laws of England, Volume 27, Fourth Edition, paragraph 203 at page 155 states: "A weekly or othe r p eriodic tenancy is determinable by notice to quit, which_. in the absence of special stipulations, should be given so as to expire at the end of any complete period of the tenancy, and s hould, subject to the s tatutory minimum in the case of dwellings, be equal l o the length of pe riod, that is, in a w eekly tenancy a week's notice, in a monthly tenancy a month's notice, and in a quarterly tenancy a quarte r's notice." Both the pla intiff and the defendant agreed that after the expiration of the leases on the 28 th February, 2018 the plaintiff continued to pay rent to the defendant three months in a dva nce. ll can be inferred therefore that the term of the periodic tenancy was a quarterly one. Indeed, PW2 took time to show the court the payment of rentals that were made 3 months in advance from the 1st March ·2018 to the 1 s t December, 2018. It follows therefore that the plaintiff was required to give a quarter's notice which translates to three months' notice as every quarter in a year has a period of three months. The argument advanced by counsel for the plaintiff that the re was no obligation for the pla intiff as a tenant to give notice to terminate due to the lease agreements l to give not le ss than three months' notice and not more tha n six months' notice to a landlord to terminate a lease or tenancy agreeme nt. It has already b een established that as the tenancy in question was periodic one and a quarterly one at that, then the requisite notice period was three months. Accordingly the plaintiff was required to give three months notice to quit. Turning now to the issuance of the Warrant in Distress by the defendant, which in turn led to the plaintiff's main claim of Kl20,000.00 for loss suffered as a result of the seizure of 50 bags of Urea· under this Warrant of Distress, the· main questions to be asked are : 1. 2. Wa s the issua nce of a Warrant of Distress by the defendant illegal? Did the p la intiff prove its claim of the loss of Kl20,000.00 following th e seizure of 50 bags of Urea? According tu Hals bury's Laws of England, Third Edition, Volume 12, paragraph 130 at page 90 th e right to distrain for rent arises when: a) Th e rf'btion of land lord an d te nant exists; b) When th e rent becom es clue a nd the distress is levied; and c) Th<· rent is in a rrears. In respon se to the first question, it is apparent from the guidelines in Ha lsbury 's above tha t the defenda nt wa s well within its rights to distra in for re n t a nd the re was n othing illegal in the course of a c tion that it took. Consequently th e refe rence by coun sel for the plaintiff to the ca se of G. F Construction ( 1976) Limited vs Rudnap (Zambia) Limited and Unitechna Limited SCZ Judgment No. 18 of 1999 is erroneous a nd misplaced as the Supreme Court held in that case that there was no relationship of Landlord and Ten a nt between the parties in question and not was there a ny agreement tha t before completion of the sale of the property the a ppella·nt would p ay rent to the is1 appella nt. I , I In answering the second question, the evidence before this Court reveals that the bags that were seized by the bailiffs were returned to the plaintiff without the plaintiff making good on the rent arrears that were outstanding. Further, the evidence shows that the bags were seized on the 17th January, 2019 and returned to the plaintiff on the 1st February, 2019. The period for which the plaintiff was deprived of its goods was 16 d ays. Be that as it may however, the plaintiff has not produced any evidence before this Court by way of records pertaining to daily s.ales, numbers in, terms of stock .and what projected income was to be realized in that 16 day period to substantiate the loss that it now claims before this Court. As such I agree with counsel for the defendant's reference to the case of Phillip Mhango vs Dorothy Ngulube and Others5 where the Supreme Court h eld : '·l \ny party claiming a special loss must prove that loss and do so wllh evidence which makes it possible for the court to clr:11;nnine the value of that loss with fair amount of certainty." Th<: plaintiff has not provided a ny evidence to prove the loss that it has a lleged to have su ffe red &nd ha s thereby disabled this Court to determine with a fair a mount of certa inty the Joss il has suffered. The p laintiff therefore on a ba la n ce of proba bilities h as failed to establish its claim that as a result of the defendants' distra in fo r rcnl it incurred a loss i!1 the sum of Kl20,000.00. The upshot of the ma tter is tha t the plaintiffs claim fails in totality and is dismissed forthwith. In relation to the counterclaim however, the d efendants claim succeeds and the defendant is e ntitled to the following reliefs: l ( 1. An order for payment by the plaintiff to the defendant for the sum of K32,000.00 being the outstanding rental arrears fo r the months of January and February, 2019. 2. Interest on the said sum of K32,000.00 at the Bank of Zambia average short term deposit rate from the date of the Writ of Summons until the date of this Judgment and thereafter at current bank lending rate until date of payment. 3. Costs to be taxed in default of agreement. Dated the ... .... .... ...... L .......... day of ....... M-T.: ........ 2O20 tf/ {II\ ~ - -- ~ ibbabbuka JUDGE