The Official Receiver(Suing as Receiver and Manager of Mansa Batteries Ltd (In Receivership) v Evans Miyambo (2021/HP/1225) [2022] ZMHC 102 (30 March 2022)

J1 x"' couRr OF lAMe INTHEHIGHCOURTOFZAMB ~~ 2021/HP/1225 AT THE PRINCIPAL REGISTR HOLDEN AT LUSAKA (Civil Ju risdiction) - r1r j • l. '- - er . ~ . -- - -·- : 1 . -~-- RE:GISTRY /jfJ"~ RULE --.. ...... .- f OF THE LAWS OF ZAMBIA p,_'t-1>-· L T RULES, CHAPTER 206 PROPERTIES, NAMELY HOUSES NO 148/16, 84/ 16, AND 27 / 18 ALL OF PLOT 831 BELONGING TO MANSA BATTERIES LIMITED (IN RECEIVERSHIP) IN THE MATTER OF: AND IN THE MATTER OF: AND IN THE MATTER OF: AN ORDER OF EVICTION FROM HOUSES 148/ 16, 84/ 16, AND 27 / 18 ALL OF PLOT 831 AND IN THE MATTER OF: BETWEEN: THE SITTING TENANTS NAMELY EVANS MIYAMBO, AND CHISHALA SAMSON KALUMBA SITALUMEZI SOPE THE OFFICIAL RECEIVER (Suing as Receiver and Manager of Mansa Batteries Ltd (In Receivership) APPLICANT AND EVANS MIY AMBO SITALIMEZI SOPE CHISHALA SAMSON KALUMBA 1st RESPONDENT 2 n d RESPONDENT 3rd RESPONDENT BEFORE HON MRS JUSTICES. KAUNDA NEWA THIS 30th DAY OF MARCH, For the Applicant For the Respondents : Ms Sharon Kasoma Nguni, Senior Legal Officer Ms E Chungu and Mrs C. B. Kainga, Legal Aid Counsel, LAB JUDGMENT J2 LEGISLATION REFERRED TO: 1. The Rent Act, Chapter 206 of the Laws of Zambi a. 1. INTRODUCTION 1.1 Suing by Originating Notice of Motion, which was filed on 8 th October, 202 1, the Applicant seeks; 1. An Order for the payment of rental arrears in respect of the premises known as House No, 148/ 16, 84/ 16 and 27/ 18 Mansa. n. An Order that the Respondents herein yield vacant possession of the houses No, 148/ 16, 84/ 16 and 27/ 18 Mansa. m. Costs to be borne by each party. w. Any other relief that the Court may deem fit. 1.2 The Originating Notice of Motion is supported by an affidavit, as well as list of authorities and Skeleton Arguments, and is opposed by an affidavit in opposition. 2 . AFFIDAVIT IN SUPPORT OF THE ORIGINATING NOTICE OF MOTION 2.1 The affidavit filed in support of the Originating Notice of Motion is deposed to by Natasha N san ta Kalimukwa, the Official Receiver of Mansa Batteries (in receivership), who deposes that Mansa Batteries Limited was placed under receivership 1n 1995, when the Zambia National Commercial Bank (ZANACO) foreclosed on its assets for J3 non-payment of a loan. It is averred that the Applicant was appointed Receiver of Mansa Batteries (in receivership), and its terms of reference were inter alia, to realise the sale of the assets at market value, and apply the proceeds towards payment of all Creditors including employees. 2.2 The Official Receiver states that Mansa Batteries owned a total of 192 housing units, out of which 127 were occupied by former employees, while 65 were occupied by non Mansa Batteries employees, as some employees opted to be getting housing allowance, rather than be accommodated by the Company. It is also the Official Receiver's averment that when the process of disposing of the assets of Mansa Batteries commenced, offers were made to the sitting tenants of the 65 houses in February, 2019, and some tenants began paying for the properties at different intervals, while some did not make any efforts to make payment. 2. 3 It is stated that the Official Receiver had been extending time to afford the sitting tenants an opportunity to purchase the houses, and to that effect, offers were made in October, 2019, July, 2019 and April, 2019, as shown on the letters exhibited as 'NNKl' collectively. That along the way, the 1st, 2nd and 3rd Respondents paid ZMW2, 000.00, ZMWl 9, 000.00 and ZMW25, 000.00 respectively towards the purchase of the houses, but that was not enough to purchase the said properties. J4 2.4 Thus, on 23rd March, 2021, the Applicant issued the notices exhibited as 'NNK3' to the Respondents, giving them One (1) months' notice to vacate the houses, as a decision h ad been made to off er the said houses to the pu b lic. It is further, averred that the houses in question were a dvertised by the a dvert exhibited as 'NNK4 ', to the public on 9 th August, 2021, and the Applicant received offers from the said public, some of whom had even paid for the houses. 2 .5 The Official Receiver deposes that the One (1) months' notice that was given to the Respondents in March, 2021 has elapsed, but they are still in occupation of the houses. 3. LIST OF AUTHORITIES AND SKELETON ARGUMENTS IN SUPPORT OF THE ORIGINATING NOTICE OF MOTION 3. 1 The list of authorities and Skeleton Arguments refer to Rule 3 of the Rent Rules under the Rent Act, Chapter 206 of the Laws of Zambia, as providing that a complaint or application under the Act shall be commenced by Originating Notice of Motion, and that the evidence may be by affidavit or viva voce. 3 .2 Also referred to, is Section 13 (1) (a) and (fl of the said Rent Act, stating it provides that no Order for the recovery of premises shall be made unless there is some rent lawfully due from the tenant, which has not been paid. Further, Section 4 (e) sets out the powers of the Court JS pursuant to Section 13 of the Act, which include making an order for recovery of premises and rental arrears. 4. AFFIDAVIT IN OPPOSITION 4.1 In an affidavit in opposition deposed to by the 1s t and 2nd Respondents, as well as Mary Maipambe, a widow to the 3rd Respondent, which was filed on 3 rd March, 2022, they aver that they are desirous of completing the balances remaining towards the purchase of the houses that were offered to them to buy. It is stated that the 1st Respondent is a teacher working in the Ministry of Education, as shown on the pay slips exhibited as 'EM, SS and MMl '. 4.2 The affidavit states that the 1st Respondent wrote to the Applicant suggesting a payment plan regarding the outstanding balance, as shown on exhibits 'EM , SS and MM2', but it was rejected. It is further deposed that the 1st Respondent is desirous of paying the outstanding balance of ZMW54, 905.00 by putting up a facility of direct deduction from his account on his pay slip in the sum of ZMW2, 000.00 a month, and that he is willing to pay more than the ZMW2, 000.00 from the business that he does, according to how the business fairs. 3.3 The deponents of the affidavit also aver that the 2 nd Defendant intends to pay the outstanding balance of ZMW54, 890.00 by monthly instalments of ZMWl, 000.00 stating that she is a businesswoman who trades in various J6 goods, and she has already committed herself by paying ZMWl 9, 000.00. 3.4 The widow to the 3 rd Respondent, states that the 3 rd Respondent was a teacher, who was working for the Ministry of Education, as shown on the pay slips exhibited as 'EM, SS, MM3'. She deposes that she is desirous of settling the balance of ZMW32, 885.00 by putting up a facility of direct deduction from her account on her pay slip, in the sum of ZMW2, 000.00, and that in addition, she will be topping up ZMWl, 200.00 from the business that she runs. 3.5 The further averment is that, as evidenced on exhibit 'EM , SS, MM4', the bank deposit slip, the 1st Respondent paid ZMW4, 000.00 to the Applicant, bringing the total paid to ZMW8, 000.00, and whilst agreeing that the Respondents are owing rentals, they aver that the reasons for non payment of the same, is due to the fact that the person who was responsible for collecting the rentals stopped doing so, and the Respondents feared to continue remitting the rentals to the Applicant, due to uncertainty. 3.6 It is deposed that the Respondents are in occupation of the houses as they paid towards the purchase of the said houses. J7 4. AFFIDAVIT IN REPLY 4.1 On 10th March, 2022, the Applicant filed an affidavit in reply, which is sworn by Prudence Chisanga Hamungani, a Principal Legal Officer in the Applicant's employ. The gist of that affidavit, is that it is not practical to engage in discussions with the Respondents at this stage, as the Applicant has already sold the houses to third parties. Whilst stating that the assertion that the 1st Respondent is a teacher by profession, who is employed by the Ministry of Education is within his peculiar knowledge, the deponent avers that the 1st Respondent's payment plan proposal was rejected for being unreasonable and prejudicial to the Creditors of Mansa Batteries (In receivership). 4.2 The deponent also deposes, with regard to the averments by the 2nd Respondent and the 3 rd Respondent's widow on proposals to pay their outstanding balances, that the Applicant has been patient by extending the sale to members of the public, so that the Respondents could be accorded an opportunity to purchase the said houses. She states that even though notices to vacate the houses were given to the Respondents in March, 2021, the properties were only advertised in August, 2021, and the proceedings to evict the Respondents were only instituted in October, 2021. 4.3 Thus, the Respondents had Seven (7) months within which to redeem the propertie s through reasonable proposals, J8 after having h ad time from February, 20 19 to start making the periodical payments, as proposed in the affidavit in opposition, which by now would have met the purchase price for the houses. The a verments relating to the 1s t Respondent h aving paid ZMW6, 000.00 in January, 2022, towards the purchase of the house is said to be within his peculiar knowledge. 4.4 The deponent denies that the person who was collecting rentals stopped doing so, stating that the Applicant has an account with ZANACO, which still operates to date, and it is the account where payments to Mansa Batteries are remitted, including the payments that the Respondents made towards purchase of the houses. The deponent states that payment of rentals is a statutory obligation. 5. SUBMISSIONS AT THE HEARING 5.1 Counsel for the Applicant, r elied on the affidavit filed in support of the Originating Notice of Motion, as well as the Skeleton Arguments and list of authorities, and the affidavit in reply dated 10th March, 2022. She stated that they were a live to the fact that under the Rent Act, a landlord is not entitled to the recovery of possession of any premises except by an Order of the Court. 5 .2 In response, Counsel for the Respondents stated that they relied on the affidavit in opposition, and submitted that the Respondents sought the Court's indulgence to be given J9 time to pay the outstanding balances, as they had made part payment towards purchase of the houses, and they had expressed willingness and commitment to complete the payments. Counsel admitted that a landlord can recover possession of premises with an Order of the Court, and reiterated that the Respondents be given time to pay. 5.3 The reply was that the Respondents had failed to lead any evidence to show that they had been paying the rentals consistently in line with the law. Thus, their willingness to pay the outstanding rentals and the balances of the purchase prices was immaterial, as this is not an application for the recovery of rental arrears. Counsel went on to submit that the Respondents, by their own admission in paragraphs 18 and 19 of the affidavit in opposition, had not been paying rentals, which was a clear abrogation of their rights as tenants, and justified the Applicant in seeking an Order for recovery of possession of the premises. 5.4 It was also stated that as shown in paragraph 10 of the affidavit in reply, the Applicant gave the Respondents one months' notice to vacate the houses, but that the actual notice was Seven (7) months, which was enough time. Thus, granting the application, would not prejudice the Respondents in any way, and the prayer was that the application be granted in the interests of justice, especially that the properties had since been sold to third parties who JlO were desirous of being given vacant possession of the said houses. 6. DECISION OF THIS COURT 6. 1 I have consid ered the matter. It has been brought pursuant to Rule 3 of the Rent Rules u nder the Rent Act, Chapter 206 of the Laws of Zambia, which provides as follows; "3. A complaint or application to the Court under the Act shall be commenced by an originating notice of motion. Evidence in support thereof may be on affidavit or viva voce". 6.2 From the affidavit filed in support of the Originating Notice of Motion, it can be seen th at th e basis of taking it out, is that the Applicant seeks recovery of the houses in issue, as the Respondents have not been paying rent, and they have not paid the purchase prices for the houses in full. The Respondents do not dispu te this, and with regard to the non-payment of rentals, they have attributed to this to an allegation that the person who was collecting rent stopped doing so, and they did not continue paying, due to u ncertainty that was prevailing. 6.3 As regards the payment of the purchase price of the houses th at the Respondents were offered to buy by the Applicant, they state that have made payments towards the same, and are desirous of completing the payments in instalments. The Applicant contends that the averments by the Jll Respondents relating to their failure to pay rent cannot stand as the Applicant has an account at ZANACO in which payments are made, including those for purchase of the houses . 6.4 Exhibit 'NNKl' to the affidavit in support of the Originating Summons are letters of offer that were given to the Respondents on 17th April, offering them to buy the houses that they occupied as sitting tenants. The letters of offer had a time frame of Six (6) months within which to complete payment, failure to which the offers would lapse. The letters of offer also stated that any rental arrears on the houses had to be paid within the said Six (6) months, during which the purchase prices were to be paid in full. 6. 5 The affidavits filed 1n this matter reveal that the Respondents did not complete the payment for the houses as stated in the offer letters, and on 3rd March, 2021, the Applicant wrote notices to the Respondents to vacate the houses, within One (1) month of receipt of the letters, which are exhibited as 'NNK3' to the affidavit in support of the Originating Notice of Motion, for failure to pay the purchase prices for the houses in full. 6.6 It is trite that under Section 13 (1) of the Rent Act, Chapter 206 of the Laws of Zambia, a landlord can only recover possession of premises where there is rent lawfully due to be paid. It states that; J12 "13. (1) No order for the recovery of possession of any premises or for the ejectment of a tenant therefrom shall be made unless- (a)some rent lawfully due from the tenant has not been paid, or some other obligation of the tenancy (whether under a contract of tenancy or under this Act) so far as the same is consistent with the provisions of this Act, has been broken or not performed; or" 6. 7 Exhibit 'NNK3' to the Originating Notice of Motion shows that as at 31 st March, 2021, the 1st Respondent owed rentals in the amount of K9, 450.00 , while the 2 nd Respondent owed Kl 1, 040 .00, and the 3 rd Respondent owed K8, 280.00, in unpaid rentals. The Respondents in the affidavit in opposition do not dispute this. Therefore, clearly, the Respondents as tenants of the Applicant are owing in rentals, which are lawfully due to be paid. 6.8 Section 4 of the Rent Act states that; "4. The Court shall have power to do all things which it is required or empowered to do by or under the provisions of this Act, and in particular shall have power- J13 (i) an Order for the recovery of possession of premises, whether in the occupation of a tenant or of any other person; and (ii) an Order for the recovery of arrears of standard rent, mesne profits and a charge for services; ....... . (h) to permit the levy of distress for standard rent·" , 6. 9 Going by the above, the relief for possess10n of the premises, as well as payment of rental arrears are properly before this Court, the Respondents being tenants who are in arrears in terms of payment of rentals which are lawfully due. This is regardless of the fact that they have made payments towards the purchase of the houses, as those are contracts that they entered into separately with the Applicant as their landlord, outside the tenancy agreements, which had their own terms and conditions. 6.10 I therefore grant the Applicant the relief for possession of the houses after the expiration of Thirty (30) days from today. If the Respondents would not have vacated the houses by that time, the Applicant will be at liberty to issue Writs of Possession. The Applicants shall pay a ll outstanding rental arrears due and in default of payment, the Applicant shall be a t liberty to levy distress to recover the same. I • J14 6 .11 Each party shall bear their own costs, and leave to appeal is granted. DATED AT LUSAKA THIS 30th DAY OF MARCH, 2022 S. KAUNDA NEWA REPUBLIC OF 2 . HIGH COURT JUDGE HIGH COURT OI! ~~~~ A[3oMAR ~ ~ S. NEWA, J P. O . BOX 50067, LUSAKA