Rex Zephaniah Ngoma v Thomas Thewo (SCZ Appeal 18 of 2003) [2003] ZMSC 82 (27 October 2003)

IN THE SUPREME COURT OF ZAMBIA (cid:9) SCZ APPEAL No. 18 of 2003 HOLDEN AT NDOLA AND LUSAKA (CIVIL JURISDICTION) REX ZEPHANIAH NGOMA (cid:9) APPELLANT AND THOMSON THEWO (cid:9) (RECEIVER MANAGER OF CONTRACT HAULAGE LIMITED) RESPONDENT COFtAM: (cid:9) Sakala, (cid:9) 4th June and 27th October, 2003. Chibesakunda and Chitengi, 335 For the Appellant: (cid:9) In Person. For the Respondent: Mr. F. H. M. Hamakando of Batoka Chambers, Lusaka. Sakala, (cid:9) delivered the Judgment of the Court. JUDGMENT On the 4th of June, 2003, when we heard this appeal, we announced our decision that the appeal is allowed and that reasons would be given later in a written judgment. At the same time, we directed that the main action must proceed to trial -without any further delay. We ordered costs to be in the cause. We now give the reasons for our decision. For convenience, we shall refer to the Appellant as the Plaintiff and the Respondent as the Defendant which they were in the court below. This is an appeal against a decision of the High Court dismissing the Plaintiff's application for an inter parte injunction and discharging an exparte injunction order earlier granted to the Plaintiff. The relevant facts of the case are that the Plaintiff was an employee of Mukuba Hotel, who were tenants of house No. 19 Liteta Drive in Ndola: The house belonged to the Defendant. The Plaintiff occupied the house by virtue of his employment. It was common cause that the tenancy agreement existed between Mukuba Hotel and the Defendant. It is also common cause that when the tenancy agreement expired, the Plaintiff entered into verbal discussions with the Defendant's officials, which discussions touched on the issue of the Plaintiff renting the house or in the alternative buying it. It is not in dispute that the Plaintiff continued occupying the house even at the expiry of the tenancy agreement between Mukuba Hotel, his employers and the Defendant. There was evidence that subsequently, the Defendant offered the house to a third party and requested the Plaintiff to move out of the house. The Plaintiff took out a writ of summons against the Defendant claiming for a declaration that he was the lawful tenant of the house in issue and asking for an order and a declaration that he is entitled to purchase the same. In the same writ the Plaintiff asked for an interlocutory injunction to restrain the Defendant, its agents or servants from leasing out the premises pending the court action. The court granted the Plaintiff an experte order which was discharged upon the hearing of the interparte summons. The learned trial Judge considered the facts not in dispute. He noted that what was in dispute was whether there was a verbal offer to allow the Plaintiff to occupy the house as a tenant. According to the trial Judge, the issue raised in the application for an interlocutory injunction did not suggest any irreparable injury if the injunction was not granted. He, thus, disallowed the application and discharged the exparte order. Hence, the appeal to this court. The Plaintiff filed a memorandum of appeal containing six grounds. Both the Plaintiff and Counsel for the Defendant have filed written heads of argument based on the six grounds of appeal. They informed the court that they relied on the written heads of argument. They made no oral submissions. We have examined the grounds of appeal. On account of the view we take of this appeal, we find it unnecessary to delve into those grounds. Suffice it to mention that on the facts not in dispute, the Plaintiff was not an illegal tenant or a trespasser. He occupied the house by virtue of his employment at the time when there was a valid tenancy agreement between the Plaintiff's employer and • • • the Defendant . At the expiry of that tenancy agreement, the Plaintiff legally continued occupying that house. For purposes of determining whether he is entitled to purchase the house and whether he had entered into any verbal agreement with the Defendant, it was necessary to maintain the status quo by allowing the Plaintiff to continue staying in that house. For that reason, we allowed the appeal. E. L. Sakala CHIEF JUSTICE L. P. Chibesakunda SUPREME COURT JUDGE P. Chitengi SUPREME COURT JUDGE 4