Robinson Manase v A.M.S Ltd (SCZ Appeal 43 of 2001) [2001] ZMSC 110 (12 September 2001)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 43 OF 2001 HOLDEN AT KABWE AND LUSAKA. (Civil Jurisdiction) ROBINSON MANASE AND A. M. S. LIMITED APPELLANT RESPONDENT Coram: Ngulube, CJ., Sakala and Chaila JJS 7th August and 12th September, 2001 For the Appellant, In Person. For the Respondent, Mr. M. Kawesha of Kawesha and Company. Sakala, JS., delivered the Judgment of the Court. J UDGMENT This is an appeal against a judgment of the High Court dismissing the appellant’s application for a new tenancy. The court ordered that the respondent do recover vacant possession of the premises, at Stand No. 73/74 Katebe/Chilufya Road. The order was stayed for three months from the date of the judgment. The short facts of the case are that the appellant is a businessman by occupation. He owns Kabwe Star Butchery at Stand No. 73/74 Katebe/Chilufya Road. Kabwe. He has been the respondent’s tenant since 1984. During this period, the tenancy agreement between the parties had been revised from time to time. It was common cause that on the 3rd of August 1995, the respondent landlord gave notice to terminate the tenancy of the business premises. In the notice, the respondent landlord indicated that they would oppose an application to court under the Act for the grant of a new tenancy on the ground that the appellant had persistently delayed in payment of rent and that the landlord, the respondent, wanted to occupy the building themselves. It was also common cause that in 1996, the appellant had made an application for a grant of a new tenancy in causes number 96/HB/103 and 1996/HB/104 in response to the landlord’s notice to terminate the tenancy. While the : J2 : proceedings were pending in court, the parties entered into a revised tenancy agreement which was couched as follows:- REVISED TENANCY AGREEMENT BETWEEN AMS LIMITED, LANDLORD AND KABWE STAR BUTCHERY, TENANT STAND NO. 73/74 KATEBE/CHILUFYA ROAD. IT IS HEREBY AGREED that the previous Tenancy Agreement he revised as follows:- PREMISES: TERM: EFFECTIVE DATE: F‘ January, 1998. RENT: Main and Coldrooni Premises 2 years fixed; renewable only by the consent of both parties. K300,000per month payable in Advance, AND; THAT the matters now before the Court ie 1996/HB/I03 and 1996 HB/104 be withdrawn forthwith. Signed by the Tenant KABWE STAR BUTCHERY Signed by the Landlord AMS LIMITED DATE 30th January, 1998 DATE 3(fk January. 1998. Despite the agreed fixed term of two years in the revised tenancy, on the 8th of November, 1999, the appellant made a request for a new tenancy of the same business premises. The landlord did not respond to the appellant’s request. On 24lh January 2000, the appellant, by an originating notice of motion applied for a new tenancy under the provisions of Section 4(1) of the Landlord and Tenant (Business Premises) Act Cap 193. The application was supported by an affidavit. There was also an affidavit in opposition. At trial, the appellant confirmed that the last tenancy agreement he made with the respondent was the one dated 30th January 1998. He complained that he was not given proper notice to quit nor grounds of opposition to his request for a new tenancy. : J3 : The respondent too, testified to the effect that he gave notice to terminate the tenancy in 1995 when the appellant attempted to renew the old tenancy. According to the evidence on behalf of the respondent, the notice had not been withdrawn but on the expiry of the notice in 1996 the appellant applied for a new tenancy under cause number 96/HB/103. This cause was not heard. The learned trial judge considered the evidence. He identified the first issue to be resolved as being whether the appellant was entitled to apply for a new tenancy. The court examined the agreement entered into between the parties on 30th January 1998. The court found that no new tenancy had been granted by the court and that what was before it for consideration was the two year tenancy. The court noted that this tenancy expired on 31sl December 1999 unless continued by Section 4(1) of the Landlord and Tenant (Business Premises) Act. The court considered whether the two year tenancy as agreed by the parties was protected by the Act so as to entitle the appellant to apply for a new tenancy. After examining Section 9, Cap 193 and Section 28 of the English Landlord and Tenant Act 1954, the court found that the revised tenancy agreement contained terms and specified the dates from which the agreement was effective and when it was to expire. The court held that the revised tenancy agreement fell under Section 9 of the Act and therefore not a protected tenancy under Section 4(1). The court concluded that the appellant was not entitled to apply to court for a new tenancy as it had not been continued by Section 4(1). The application failed. The appellant who appeared in person, relied on very detailed written heads of argument based on eleven grounds of appeal. The grounds and the arguments on all the grounds centred on the trial judge’s finding that, despite the appellant having been a tenant of the respondent since 1984, trading as a Butchery, the revised tenancy agreement was a tenancy to which the Landlord and Tenancy (Business Premises) Act, Cap 193 did not apply. All the submissions and the arguments were premised on the procedures and the requirements of a tenancy protected by the Act in relation to renewal of tenancy, notice to terminate and grounds for opposing a new tenancy. Thus, the appellant argued that the court misdirected itself by holding that the revised tenancy fell under section 9 of the Act, that is that it is not a tenancy to : J4 : which the provisions of the Landlord and Tenant (Business Premises) Act applied. The contention on behalf of the appellant was that the revised Tenancy Agreement provided for an option to renew and therefore not intended to prevent a tenant from making an application to court on request to the landlord under the Act for a new tenancy. On behalf of the respondents, Mr. Kabesha supported all the findings of the learned trial judge, pointing out that the court was on firm ground when it held that the tenancy agreement fell squarely under Section 9 of Cap 193, that is that it was not a protected tenancy. He submitted that the parties agreed on the termination date and therefore the tenancy terminated on the agreed date. It was further argued that although the revised tenancy was for a period of two years with an option to renew, it also stipulated that the renewal would only be with the consent of both parties, and that the respondent did not consent to any renewal. Mr. Kabesha urged the court to dismiss the appeal with costs. We have carefully examined the record of appeal and the spirited learned submissions by the appellant in person and those on behalf of the respondent. We are satisfied that before the trial court there was only the revised tenancy agreement with a specific term of “2 years fixed, renewable only by consent of both parties”. There was an effective date of 1st January, 1998, There was no evidence that the respondent consented to the renewal. Section 9 of the Landlord and Tenant (Business Premises) Act reads:- “ Where the Landlord and tenant agree upon the grant to the tenant of a future tenancy of the holding, or of the holding with other land or premises on terms and from a date specified in the agreement, the current tenancy shall continue until that date but no longer, and shall not he a tenancy to which the provisions of this Act apply. ” The learned trial judge compared this Section with Section 28 of the English Landlord and Tenant Act, 1954 couched in similar language. The court concluded that the Revised Tenancy Agreement fell squarely under Section 9 of the Act and held that it was not a protected tenancy. It came to an end on 31st December, 1999 and was not continued by Section 4(1) of the Act which makes provision for continuation of tenancies to which the Act applies and to grant of new tenancies. : J5 : We fully agree with all these findings. All the arguments by the appellant based on a protected tenancy had no relevancy to the tenancy before the trial court. This appeal is dismissed with costs to be taxed in default of agreement. M. M. S. W. Ngulube, CHIEF JUSTICE. E. L. Sakala, SUPREME COURT JUDGE. M. S. Chaila, SUPREME COURT JUDGE,