Goldview Hotel Limited v Speedpay Limited (Appeal No. 186/2021) [2023] ZMCA 297 (8 December 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) Appeal No. 186/2021 BETWEEN: APPELLANT SPEEDPAY LIMITED RESPONDENT CORAM: Chashi, On 19th September JJA Muzenga and Patel, 2023 and 8th December 2023. For the Appellant: & Mr. K. Daka, Messrs Christopher Mr. S. Bwalya (Jnr) Russel Cook & Co For the Respondent: No appearance JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Appollo Refrigeration Services Company Limited v. Farmers' House Limited (1985) ZR 182 2. Ulubembe Investments, AMB F. Kapoka & Navnit Patel v. Lethabo Primary School -CAZ Appeal No. 171 of 2019 J2 Legislation referred to: 1. The Rules of the Supreme 2. The Landlord Court (White Book) 1999 Edition. Act, Chapter Premises) and Tenant (Business 193 of the Laws of Zambia. 3. The High Court Rules, Chapter 27 of the Laws of Zambia. 1.0 INTRODUCTION 1.1 This is an appeal against a Ruling dated 30th March 2021 delivered by Lady Justice P. K. Yangailo, cause was in which the appellant's dismissed on account of wrong mode of commencement. 2.0 BACKGROUND 2.1 The background to this appeal is that the appellant (plaintiff in the court below) sued the respondent ( defendant in the court below) by way of writ of summons claiming for rental arrears owing and payable in the sum of USD20,000.00 up to 11th June 2019 and notice pay in the sum of USD2,000.00 notice for one month's to vacate the property plus interest on the sums due, among other attendant reliefs. 2.2 The respondent entered conditional appearance but never made any application until close to 3 months later when the Deputy Registrar in default entered judgment of appearance and defence. J3 2.3 The respondent then filed an application to set aside the judgment in default before the Deputy Registrar, which application was declined. The respondent thus appealed to the Judge in Chambers, who allowed the appeal and set aside the judgment in default. The Judge further allowed the respondent to file their requisite of application in respect the conditional appearance, from 10th December 2020 the date of the said Ruling on appeal. 2.4 On 21st December 2020, the respondent filed an application to determine the cause on a point of law pursuant to Order 14A of the Rules of the Supreme Court (White Book) 1999 Edition, which application the Judge declined. 3.0 DECISION OF THE COURT BELOW 3.1 The court below then went on to consider the applications by the appellant to dismiss the respondent's application to determine the cause on a point of law and for entry of judgment in default of appearance and defence. 3.2 The Judge found the first application to be otiose as she had already dismissed it. The court below did not consider the second application on account that she was of the considered view that the matter/cause J4 was wrongly commenced by way of Writ of Summons when it should have been commenced by way of Originating Notice of Motion. Reliance of this verdict was placed on what the trial court called Rule 3 of the Landlord and Tenant (Business Premises) Act, Chapter 193 of the Laws of Zambia (the Act). 3.3 The cause was thus dismissed on this score. 4.0 GROUNDS OF APPEAL 4.1 Unsettled by the dismissal of the cause, the appellant appealed to this Court fronting two grounds of appeal couched as follows: (i) The honourable court below erred in law in dismissing action the appellant's of the action commencement wrong at law. on the basis that the mode of was by the appellant (ii) The honourable that the appellant's holding judgment on the basis that the mode of commencement action by court below erred in law and fact in application for entry of and defence failed of the the appellant of appearance was wrong at law. in default 5.0 THE APPELLANT'S ARGUMENTS 5.1 The grounds were argued together and the gist of the argument was that the mode of commencement was correct as the Landlord and Tenant (Business Premises) Act (the Act) did not specifically JS provide for the mode of commencement for the recovery of rental arrears and notice pay. 5.2 It was argued that since there is no specific mode of commencement, Order 6 of the High Court Rules kicked in. Reliance was placed on the cases of Appollo Refrigeration Services Company Limited v. Farmers' House Limited 1 and our decision in the case of Ulubembe Investments, AMB F. Kapoka & Navnit Patel v. Lethabo Primary School2 among other cases. 6.0 THE HEARING 6.1 At the hearing of the appeal, learned counsel for the appellant placed reliance on the filed arguments. The respondent was not present, neither did they file any opposition. 7.0 DECISION OF THE COURT 7.1 We have carefully considered the record of appeal and the arguments in support of the appeal. 7 .2 The learned court below dismissed the appellant's cause on account that it was wrongly commenced, by way of Writ of Summons instead of Originating Notice of Motion. It is trite that Rule 3 of the Landlord and Tenant (Business Premises) Rules, provides in mandatory J6 terms, the mode of commencement of matters under the Act, as being by way of Originating Notice of Motion. However, the learned court below should have gone further to examine the Act in order to determine whether the appellant's cause fell under the specified categories for which Rule 3 applies. The matters to which Rule 3 is subject are matters such as the determination of rent, applications for a new tenancy and other related matters. 7.3 The appellant commenced its cause seeking payment of rent arrears and notice pay. These claims are not covered under the Act. The practice therefore is that for those claims not covered by the Act, Order 6 of the High Court Rules kicks in, which requires that all matters must be commenced by way of Writ of Summons. 7.4 In the Appollo Refrigeration Services Company Limited case supra, the Apex Court held inter a/ia that: for a landlord's notice of motion was not the proper claim for possession of business "An originating process premises an originating notice Tenant {Business Sections. various not so specified writ in accordance since all the applications which can be made by of motion under the Landlord and in the Act are specified for possession was action by be commenced Premises) A Landlord's and should therefore with Order 6 of the High Court Rules." J7 7.5 We recently reechoed the aforementioned position in the Lethabo Primary School case supra/ that all matters must be commenced by way of Writ of Summons unless a Statute provides for a specific mode of commencement. 7.6 We agree with learned counsel for the appellant that the learned court below fell into grave error when it dismissed the cause. We hold the view that the matter was properly commenced and was properly before the court below. Had the learned court below properly directed herself, she would not have dismissed the cause. We find merit in the appeal and we allow it. 8.0 CONCLUSION 8.1 Having allowed the appeal, we set aside the Ruling of the court below dismissing the appeal. 8.2 We refer the matter back to th Judge. 8.3 Costs to abide the outcome oft atter in the court below. J. Cha i COURT OF A EAL JUDGE K. Muzenga COURT OF APPEAL JUDGE A. N. Patel, COURT OF APPEAL JUDGE SC