Ravel Mulenga v Mels Supermarket Ltd (Appeal 4 of 1999) [2001] ZMSC 108 (10 April 2001)

11N THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA “ (Civil Jurisdiction) APPEAL NO.4/99 BETWEEN: RAVEY MLLENGA APPELLANT AND MELS SUPERMARKET LIMITED RESPONDENT Coram. Bweupe, DCJ; Chaila, Chinva. JJS 27‘h May, 1999 and 10™ April, 2001 For the Appellant. Mr. C. Hakasenke of Hakasenke and Company For the Respondent: Mr E B. Mwansa of EBM Chambers JUDGMENT Chaiia, JS, delivered the judgment of the court. The main issue in this appeal is about the statutory notice required m seeking possession of the rented house. The appellant, according to the history of the case, commenced an action by originating summons on I9lh February. 1996. The originating summons was supported by an affidavit/affidavits exhibited on the record. When the matter was held, the learned trial Judge ordered, among other things, that there was no notice to quit and declined to grant an order for vacant possession on that ground and further held that Kunda Manda was a minor and that he could not execute a valid contract affecting land and that was not a contract for necessaries. On 30th April, 1997, the appellant again applied to the same trial Judge for review of his judgment of 9lh April, 1997. The learned trial Judged ruled again on 22nd September, 1997 that the application for review was refused and that the letter, which was exhibited, did not amount to statutory notice to quit and that the contract of necessaries for Kunda Manda was not an issue. The learned counsel for the appellant argued before us that it was not clear what the learned trial Judge meant to be a statutory notice to quit under the contract since the letter gave the reason that the landlord required the house for his own use. The learned counsel argued that the learned trial Judge relied on the provisions of Section 13(l)(e) of the Rent Act. They even proceeded to give the respondent 12 months notice to quit. At the expiry of 12 months notice, a warrant of distress was issued on 3rd November, 1998, but on application by the respondent, the learned trial Judge ruled on 10 December, 1998 that the appellant did not give the respondent the statutory notice to quit so that the respondent could be availed the opportunity to apply for a statutory lease which the appellant could oppose if so desired. Before the ruling on 10th December, 1998 was made, the appellant’s counsel sought some clarification from the learned trial Judge on the meaning of statutory notice to quit. They were told that the notice to quit was in the prescribed form as is provided for under the Landlord and Tenant (Business Premises) Act and that the notice to quit must be in that prescribed form. The appellant’s counsel then realised that the learned trial Judge was under misdirection in all his rulings by requiring that even for a dwelling - J3 - house, which falls under the Rent Act, the landlord, must give notice in the form prescribed by the Landlord and Tenant (Business Premises) Act. The appellant has relied on four grounds, which have been ably argued in the heads of argument filed on behalf of the appellant. The appellant’s counsel has relied on these written heads of argument filed in May, 1999. The counsel has argued briefly before us that the main point running through the grounds is what amounts to notice to quit under the Rent Act. The other argument was on the lease agreement. The counsel prayed to the court to make the respondent pay rent as provided for in the Lease Agreement and thereafter at a rate to be assessed by the valuation report. They prefer Government Valuation Department to do the valuation. The learned counsel for the respondent relied on their heads of argument of 17th May, 1999. He however emphasized on three points. He has further conceded that there were oral arguments and he urged us to dismiss the appeal. We have considered the submissions, which are very detailed and well researched, and we thank both counsel for these submissions. We have further considered the evidence on lease agreement on record. We are however, surprised that when the learned trial Judge made his first ruling, he came to the conclusion that the minor had no capacity to enter into a contract. If the contract was invalidated and possessed a lack of capacity, why did the Judge then not order possession of the property? We are wondering how the Judge could allow the respondent to continue being in possession of the property when there was no valid agreement. The issue of necessaries was not pursued in the subsequent arguments or proceedings. - J4 - The facts show that the house in question came under Rent Act, not under the Landlord and Tenant (Business Premises) Act. The facts clearly show that the respondent did not given notices to quit and summons was issued. In all fairness and in the interest of justice, the appellant had substantially conformed to the provisions of Rent Act and the learned trial Judge should have ordered possession of the premises. This appeal is therefore allowed. We order vacant possession of the premises. We further order that the appellant pays rent as provided for in the Lease Agreement and thereafter at a rate to be assessed by the Valuation Department of the Government of the Republic of Zambia. There will be interest on the amount based on short-term deposit. The appeal is allowed with costs to be taxed in the event of default. B. K.. BWEUPE DEPUTY CHIEF JSUTICE M. S. CHAILA D. K. CHIRWA SUPREME COURT JUDGE SUPREME COURT JUDGE