Slainte Supermarket v Muyuni and Partners (Appeal 73 of 2005) [2008] ZMSC 134 (20 June 2008)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (CIVIL JURISDICTION) Appeal No, 73/2005 IN THE MATTER BETWEEN: SLAINTE SUPERMARKET APPELLANT AND MUYUNI AND PARTNERS RESPONDENT Coram: Lewanika, DCJ, Mumba, Mushabati, JJS, 19th September 2006 and 20th June 2008 For the Appellant Mr F. S, Kongwa of Messrs Kongwa & Co. For the Respondent Mr H. A. Chizu of Messrs I. C. Ng’onga & Co. JUDGMENT Mumba, JS, delivered the Judgment of the court. At the hearing of the appeal, the late Deputy Chief Justice, Mr Justice D. M. Lewanika was a member of the panel but he passed on before the judgment was ready for delivery. This judgment is, therefore, a judgment of the majority of the panel that heard the appeal. -J2- In this appeal, we shall continue to refer to the plaintiff and the defendant as the plaintiff and the defendant respectively, as this is what they were in the court below. This is an appeal against the Judgment of the High Court of 11th May 2004 whereby the plaintiff’s claim for specific performance, damages for loss of business and loss of perishable stuff was dismissed. The plaintiff entered into a 10-year lease agreement for the shop which was running as Slainte Supermarket in 1992. Rent was paid in advance but operations of the supermarket started in June 1993. The evidence, on record, shows that the lease agreement by the plaintiff was entered into with Muyuni Consulting Engineers Limited whereas the receipts for rent were issued by Muyuni and Partners. However, the trial went on against the defendant, Muyuni and Partners. A fter the plaintiff started operating the supermarket which fell into arrears with rent, the parties agreed to vary the mode of paying rent to allow the plaintiff to pay in instalments. The currency -J3- for payment of rent was also changed and was to be paid in US dollar equivalent so that the amount of rent, from time to time, would vary according to the exchange rate for the US dollar in kwacha equivalent. Sometime in March 1995, the plaintiff was three months in arrears and received a reminder for the same. After failing to pay the rent timely or as agreed, a notice to cancel the lease agreement, on account of failure to pay rent as agreed, was issued to the plaintiff. Therefore, there was re-entry of the premises whereby the locks were changed to stop the plaintiff accessing the supermarket. At the time of re-entiy there was a balance of K258,000=00 rentals due and owing. According to Clause 5(a) of the Lease Agreement, the landlord was at liberty to repudiate the lease agreement where there was breach in rental payments. The evidence shows that the landlord had written to the plaintiff on two occasions asking the plaintiff to remove the goods from the shop. There is also evidence that a Mr Charles Mutemwa, one of the signatories to the lease agreement and a representative or agent of the plaintiff did -J4- remove some of the goods from the shop. Some of the goods removed by Mr Charles Mutemwa were two fridges and two deep freezers and other items. It was also a term of the lease agreement under Clause 5(a) that the landlord could re-enter the leased premises upon failure to pay rent for 21 days. The evidence shows that re-entry was effected two months after the date due. During the proceedings evidence was given by PW1, Lillian Nobu Situmbeko, on behalf of the plaintiff, which shows that the plaintiff had difficulties keeping up to the lease agreement on rent payments. Besides the agreement to pay rent in instalments, no other changes were agreed upon to accommodate the plaintiffs difficulties. The learned trial Judge found that there was a breach of a vital term to the lease agreement, that is, payment of rent on the dates due. He found that the landlord was entitled to re­ enter the premises as per Clause 5(a) of the terms of the lease agreement. The learned trial Judge also found that sufficient -J5- notice was given to the plaintiff before re-entry was effected and that the plaintiff had an opportunity to remove the goods from the shop as Mr Charles Mutemwa was able to remove some goods from the shop. The claim for loss of business or damages for perishables could not succeed because the plaintiff was in breach but was at the same time given an opportunity to collect goods from the shop. On misjoinder of parties, the learned trial Judge found that even if the action was against the correct landlord, that is, Muyuni Consulting Engineers Limited, it would still have failed on merit. He finally decided that the relief of specific performance could not be available to a party in default. The plaintiff filed three grounds of appeal:- The first ground of appeal was that the learned Judge erred in law and in fact in holding that there was a misjoinder of the defendant. -J6- The second ground of appeal was that the learned Judge erred in law and in fact in holding that the plaintiff was in arrears of rent and justified in law the closure of the business premises and locking out the plaintiff from the premises. The third ground of appeal was that the learned Judge erred in law and in fact in holding that the plaintiff suffered no damage resulting from the unilateral closure on the ground that the plaintiff had the opportunity to remove the goods from the shop. The parties filed written heads of argument which were augmented by oral submissions. In light of the view we take of this appeal, we do not find it necessary to re-enact the submissions which are on record except to say that we have fully considered them. We have also considered the authorities cited, the judgment appealed against together with the evidence on record. -J7- On misjoinder of the parties, even though the learned trial Judge did not proceed to have the pleadings amended so that Muyuni Consulting Engineers would be a party as defendant in the court below, the Rules of the High Court do allow for such amendment whereby the correct party can be placed on record. However, though this was not done the merits of the case were wanting in that the evidence shows that there was a clear breach of one of the conditions of the lease agreement which was conceded by the plaintiff. The evidence also shows that after the lock up on the premises, an opportunity to remove the goods was afforded to the plaintiff and some goods were actually removed. The lease agreement clearly failed on account of default on the part of the plaintiff. There was no explanation why the rest of the goods, if any, were not removed after Mr Charles Mutemwa had removed some goods from the supermarket. Loss of such goods cannot be imputed on the landlord. Clearly, there was no basis in law for this action. The learned trial Judge cannot be faulted on any of the issues decided upon. -J8- The appeal has no merit and it is hereby dismissed. Costs to the defendant in default of agreement to be taxed. D. M. LEWAMIKA DEPUTY CHIEF JUSTICE F. N. M. MUMBA SUPREME COURT JUDGE C. S. MUSHABATI ' SUPREME COURT JUDGE