Examinations Council of Zambia Pension Trust Scheme Registered Trustees & Another v Tecla Investments Limited (Appeal 127 of 2015) [2018] ZMSC 313 (19 September 2018)

SELECTED JUDGEMENT NO . 39 OF 2018 r THE UPREME H LOE AT LU AKA ( ·vi] J4risd-ctionJ URT · - z· M 1 · BETW ·E ; P 1381 PP~AL .127/2015 Z/8/0;,J3/ 012 THE iRU'~T~E C II F ZA B1A PE , J TRU T CHEM• ,I '.' II PP~LLI NT 1 v~. rME T LI Mr'fE D R . PU : =am ilim . CJ Wood and Kaame:1,. Julv , a 1 and 19 1 , p m _ 0 l - . Fnt th Appeilants~ 'I M Z. Mwand n a : r l : Re pondent: ,_ nd Compa:n. M:rs. 0. C ·1in a o· R. 1ch Id d ocate JUDGMENT I A,OM. · eli d tl - udgm,en oft .e ou I. Y.abu Nyansnlan.d Garage Limited ,19 16 '7) · Afric an Law R eJJ·o:rts Malawi) 2. Su.m1cdl v Ra S. 11"a 5· N R. L .. R. 345 azoka , rut otbe , v Mwanawasa and others (2005), Z. R . 138 • ,, P. 1382 4 . Doctor J . W. Billingsley v J. A. Milndi.(1982) Z. R . 11. 5. Jasuber R. Naik and Naik Motors v ~ness Chama (19851 Z. R . 227 6. Holµies 1,td v Buildwell Construction Company Ltd (1973) t ,R. 97 7. Krige and another v Christian Cotlncil of Za mbia (1975) Z. R. 162 8 . Makanya Tobacco Company Limited " J & B Es t a tes Lim ited - SCZ Appeal No. 42 of 2012 Legislation refexred to: 1. Lands and Deeds Registry Act, Cap 185, s ections. 4 , 5 ·and 6 2 . Land (Perpetual Succession) Act , Cap 1,86 3. l,andlord and Tenant (Business PTemises) Act, Cap 193, s ection 2 8 4 , High Court R.ules, Cap 27, Order- 30(11) Worlts. referred to: 1 . Manual of the J:,a-«> of Real Property, E. R. Megarry, s ch Edition by Baller, page 32 0 . · -2. Commercial Law in Zambia; Cases and Materials, MUJ11ba Mafila , page 73 1'his is yet another 1na.lter where we haw\ been called upon, l(') determine 1f a lease .ag1'eeinen1 or agrei.:mcnt for lease for a period or over one ·year, whic h was not regjs1.ered as required by section 4 of the Lands and Deeds Registry Act, Cap 18S of the Laws of Zambia is valid o r nu.11 a;,d void. 'J'he facts th€1 t gave rise 10 1.he <lisp~U._. emanated from a lease: agreement t.hat was execut(;d Jn respect of Stt1nd 3878, Olyrupi.1 Park, Lusak 6t on l I ui May, 2006 by the Trustees oi' th e Exa.mint\lioris Council of Zambia Pension 'finlst Scht:me and the re~po .. 1dt.'n.t. The- lease \. Vhic h was to rwn fn>tti 01.:c1.1palion date was. .• n P . 13 8 3 to subsist for five years and provided for a 1nonlhly rent of K 13,500. UO (rebased), The ha bend um dause of the lease dkl 1101 disclose the actual commencement date bul th~ occupation date was I" March, 2007 and the respondent regularl.y seLLled the r~ntals through monthly instalments from that date. 'The appellants were to complete renovation of U,e premises in tt.'ru1s of clause 2(u) of the lease agreement befor.e tht' respondent <.:uulJ occupy Lhe premises. However, on an understanding betWcen the pru·ties and pursuant to c lause .2(s), U1e res-pendent took physical possession of the property in or abotJt Augusl or ScpLember, 2006 in order to carry ouL all external and any CXlra works agreed with the landlord within the· first year or occupiation, The works so carried out, were to be receipted, quant.:ificd and presenlcd tr, t.he l1,111dlord w ith receipts. 1'he arnounl so quantifir:d was to form part of the rent and was lo be 1•ecovc1•cd in equal instabnents afte r the first year of occupation. On the same d<1te, 11 11• May. 2006 I.he respondt'nL wanted tu register the lease but the attempr failed beca,use the certificatt: or title for the subject property was in tl1e individual names of th~ • • P .1384 Trustees of the Examinations Council of Zarnbit1 Pension TrusL Scheme, whereas the lease was in the naine of the 'l'rustees of the Examinations Council of Zambia Pensions Trust Scheme. That notwithstanding, an cndorsemcnl was made in lh1• memorials of the cerli.fic~te of title showing that the tenancy agreement was registered. However, the respondenl conceded that this endorsen1ent was ma(ie in error a ntl U,at Lhe lease agreement was not re.gistered as required by law On 41h January, 2007 prior to the occ1.1pation d,Hc, tbc.: Trustees or the Examinations Council of Zambia Pension T1•usl Schen1c were registered as a body corpor ate under !'he aan1e of t.hc Examinations Council of Zambia Pension Tl'ust Scheme Registered 'I'rustees ( l qt a ppellants) in accotdancc wit.h tbe Land (Perpetual Succession) Act, Cap 186 of the Laws of Za mbia. ShortlJt after, the Trustees, through the appointed Fund Manager of the Pension Trust. Sch eme , Professional Life Assurance Linlitec'.1 soug ht. and obtained professional ad vioc from a Vt\luat.iun surveyor, R. M. P\.1m beshi ai.1d Company, who advised in a report datec;l 2511, Apr il, 2007 thal the fajr open market value of t he land •• P.1385 .and the un-exhaust.ed improvements on the properly would IJ1: in tl,e region of 1<2,500,000.00 (·rebased) and the t!Stimated rental vijlue wa,s K30,000.00 per month. Following an advertisement for expression of interl"st plactd in tbc Post Newspaper by the appel.lanls, inviting 1nembers of the public 1.o participate in pre-quaJi!lcation r.o lcuse and manage the· subject premises, the respondent, 011 lOlh September, 2007 placed a caveat on the property lo restrait1 the respondent Crom leasing the premises Lo any bidders prior to expiration of the fivt: year te.rtn. The caveat a.lso had the e ffect of forbidding regisb·atinn 1-,r ar1y transaction against the said prupen.v. The transfer of the properly into the name of the l·'' appellan1:5 had not been done at tht: lune. By Letter dated 5Lll August, 2008 Professional Life Assurauce, on the instructjon of the Trustees of the Examinat.ions Cnuneil of Zambia Pension Trust Fund, mfo;111cd lhe respondc.:nt 1.hat the rent for the property had been adjusted upwards from Kl3,500.0Q to {{30,000.00 with effect from 1-"' September. 2008. On 29,11 September, 2008 lh e appellants' advoc~1tes wrote to lht! respon dent,'s advocates requc.:sting U1eir cljenl V> remove the ' ' lfj P. 138b caveat so that. ihc I ransfer 1:ou ld b e com p le led wit hth. H further delay. 1'here being no response, they made a follov.•-up by le twr dated 141h October. 2008 asking the responden\ 's advocates if lhey had instruc tions t,o accept :service of process regiclrding I Int' rcn1ovu l of th ~ caveat. lnstead , on 17'" Octobe r, 2008 thi; 1·espondent iss1.o.:tl m:iginaan g summons :;e-ckil'lg the following l'elicf:;: i. 11. iii A declaration that there exists a leg;i.1 lease for a te-rm of years certain in terms of the written tenancy agreement dated the l l'h of May, 2006 and entered into by the respondent and the appellants; ,4n order, on the basis c,1' the declaration above tbat the appellants duly perfect the tenancy by registering the same with tb.e Registrar of Lands and Deeds as per legai requirement; and A further order followine the declaration under (ii above that any increase in rentals as r~lates to Stand 3878, Lu.saka ls· Uiegal unless made in cottformlt;y with Ute Landlord and Tenant (Business Premises) Act. On .28'" October, 2008 following the corrimencemenl or the matter, the respondent.1S advocates. 'in respOl'l!$t! lo the le tt1a:r pf 29u, September, 2008 withdi•ew tbe eaveat. After conside1·ing Lh e a ffidavll evidence and sul>missions by the parties , the learned Lrial j'\Jdge found. tha t tbe Board o f'l't L1slces was agent of the Examination$ Countil o f Zambia and tha t th e l'ormer interi<led to cxecllte o1.nd chd execute a lease signed by tw(l • I I P 1387 representatives o f the Board of 'fl·ustees and two i·eprescntatives of the- respondeni. The· j udge also took the view that whether registered or 1'1ot, 1 he Pension Fund was to be represented by the 13oard ot Tn,1steel>; that the Registrar of Lapds by entering in the Jnemorials of lhe certificate of title and stmnping the lease acted in prag111al'.il.! J'ashion, a15 he was satisfied that minds had mt'\ ltJ c::xec 1.1t<l' the Je13se· except. the~ Pension P\.1nd had not .vet been !'egistered.; and that both patties intended to comply w.ith the law. He referred to paragraph 24 of the affidavit in opposition where the deponent recognised that despite the tenancy agreement not being registered. there was sorne· form of landlord and tenant. relationship bei-wecn the patties. The judge further found that the delay in registering th t: lease was caused by tl~e Trustees' delay io regis te ring the Pcnsi1)11 Fund and that. therefore, the a ppellants could not benefit from thd i- own transgression or mistake. ln the learned judge's view, the Boa.rd of Tr11stees did not disclose t.hat tht'y WCl"e acting ns age nts for th e examinations Council uf Zambia Pension Trust Scheme, so this was " w1disclosed agency'' which entitied the .respondent to sue either. P. 13 88 In that regard, tl1e judge cited a book by Mumba MaHla lltled, Commercial Law in Zambia: Cases and Materials, where the case of Yabu v Nyasaland Garage Limited1 is quoted -at page 73. wherein Cratn J . em phasised that point. According to the judge, since the Board of T'n1stees was actmg for the Pension Fun.d , lhe latter was liable and so. he hekl there was a contrl-lct il, form of-a lease, for ilV<:: years at "K 13 1500. 00 s1gned by both sides a_nd accep~d by tbe Registrar of Lands r re deemed the lease to have commenced on l l '" May, 2006 1:u1ci terminated on 11 111 May, 2011. He also held that va1ia1.ion c,f the rent from 1(13.500.00 to K30,000.00 pe r month was null mict void as it was not. consensual, and fu1•ther ordel'ed that the respondent be credited with the money of about J{lOOm it expended on renovations., Unhappy with the decision the appellants fl lt:d lhis appC'al advancing seven grounds namely: 1 , The learned Judge erred in law wben tie failed to take into consideration the legal implication of a lease or wbal appeal's to be a lease which has no commencement date and/or is or was incoJnplete. 2. The learned Judge erred in Jaw when he failed to take into conside.-ation, the legal implications of the n.on-n:gistration of a lease or an agreeinent purporting to be a lease for over one ye:u. J9 P. 1389 3. The learned Judge erred in law and fact when he held inter alia that " .. . The five-year lease will be deemed to have co mmenced o n l t ~n May, 2006 and terminated on the I l 'h of May, 2011. 4 . The learned Judge e rred in law when h e held or co_ncluded t hat "The variation of the rent from Kl 3 15 00 to K30,000.00 (rebased) per month was uull and void as it was not consensual but unilateral. 5. Further iind/or alternatively, the 1earned Judge mis directed himself when he failed to a ddress his tnind to the provisions of Section 28 of the Landlord and Tenant (Business Pre m ises} Act which provide for the manner in which rent may be d.etermined in res pec t of tenancies for busin ess premises commencing on or after 1 *' January, 1972, U and wnen a tenant is aggrieved by the rent proposed by the landlord. 6 . The lea rned Judge misdirected himself W'hen he held or concluded that " . .. The applicant be credited wit)l the m oney be expended oo the renovations .... " and/or when he granted the respo_ndent reliefs t__bat were .not plea ded or asked for. 7. The learned Judge misdirected himself when he failed to take cogniza nce of t he fact that at the. time judgtnent was delive re d, some of the responden t's claims h ad . become academic or nugatory. In support or the appeal. counsel fi led heads of argumer,t .on Which they relied. Tbey also endea'1oUrt:<l to clarify issues of conce r11 co the court. Due to l'he pusi1 k1 n we· have· takt·n on the lca!:i1: agreemen t., we find' it 11nrieces:saty to discuss the argun1ents n~lating to grotu1d 1 as U1i$ \\lou ld be R mere academw exercise \iVe shall proceed to bridly deal with the argtun c nts relating t<> the res t of the grounds, The gist of the argu men\s In ground 2 1s that sinct the pw·po1·ted tenancy aigreemenl for a period of five • P. 1390 yc::ars was not registered in accordaJ~Cc with section 4 of the Lands and Deeds Registry Act, in terms section 6 of the said Act, the lease was void for all intents and purposes. To fortify this argurncnt counsel cited the case of Sundi v Ravalia:1 Jin ground ·3, counsel submitted that the issue before the trinl <.:1iu~t was whether there exis ted a legal leas ~ [or a term o f years ce11\ain between the par1 ies regarding the wrict1a11 tenancy agreement. That the learned judge deemed thaJ I.he lease for five years had commenced on 1 l •h May, 2 006 ~nd term.i.na led un l J 1 " or M0y , '!01 .1. The kernel of lhe argUm@nts is that an i.11vi:llid lease ag1'cement cannot be d eemed to have commenced on a certain dtttc< or terminated on any given date. It was argueq lhat if a tease· agreement is for a period in excess of one yea r and ts not 1•egistered as required by la w. then a pe riodic tenancy is d eemed to be in existence and the nature or dura tivH of the tenancy will be d e tt'1·m.rned by the manne r in which the reut is dem-anded and accepted with reference lo a specific period To buttress this point, counsel cited Megarry•s Manual of the Law of JI[ P ,1391 Real -Property, 5 t h edition a t page 320 whare the learned aULhor explains how a periodic tenancy can be created. In support of grounds 4 and 5, which were argued l@gether. <.:ounsC'l for the appellartts submiLted that ont! c,f tbc issu.es in controversy between the parties was whether' tJ·1c increase oi l ht· rent by the appellants was properly done. He s ubmitted that tl is trite that in a landlo1•d al:'ld tcnan, relationship, tlte 1•cnt is normally fixed by the landlord and it 1s up to 1 he lenant to decide whether lo accept or reject 1·he landlord's proposed 1:enl but rJ1e Landlord and Tenant (Business Premises} Act, Cap 193 of the Laws of Zambia p1,ovides a mechanism for dctcrminjng re n t i.f a tenant is «ggriev1~d bythe ren t fuced or demanded by a land lord .. l1l U1at rcgnrrl, ht> cited section 28(1) of the said Act which p1:ovides th13t! "111 Notwithstanding anything to the contrary contained in this Act or any other written law or in any tease , a tenant whose tenancy commences on or after the I•• January, 1972, and to which tenancy this Act applies, may, withjn three mo.nths from the com.mencement of tenancy thereof (if he is aggrieved by the rent payable thereunder), apply to t.l:le court for determination of rent.; and, c11ubject to the provisions of subsection (~t, the court shall determine the rent which shall be substituted 1'oJ" the rent agreed to be paid under the tenancy.'' (Emphasis supplied) p 1 ~92 CoUDsel contended that since· the responclent did not make.: an application for the determination or the rent under this prov.tsion. the rent incr ease complained. of was and is la\.vfuJ .. Concerning ground 6. the core of the iu·guments by the appellants . is that the trial judge granted the respondent a relief on its own motion, which was never asked for in the 01iginating Summons. Reference was made to Lhe case of Mazoka and others v Mwanawasa and others~ which dt>.alt with the issue of the f1.u1c~ion of p leadings and the case of Doctor J . W. Billingsley v J . A. Mundi4 where this Co1.1rt emphasised tbat Ltnless the parties hflve specifically or c learly applied fo1· a consent juctgmen~, the court should only deal with a partic ular application before it. As to ground 7. counsel argued thal the proceedings commenced 'in October, 2008 and judgment was dcli11ered 111 February, 20 12 and that claims (i) and (ii) had become academic 0r nugatory because of the passage of tin11;:. Further, that since the judge made a pronouncement which could nut and will not be implemented. effected or enforced, the parlies rnost probably a1°e al • U3 P.1393 a loss as t.o what was or i$ the resolution or th1: ma1:ters in con troversy between the1n, particularly claim (i). Counsel contended that courts of law should 110 1 n?lakc decis'ions tha t are not cap able of being implemented, cffeC'tt:d or enforced or which a re superfluous. Thal ha d the judge taken cognizance of the fact that claims (i) and (ii) had become academic or nugatory because of lhe passage of litnt:, most probably, he would have made a pronouncement/s thal were capable of being implemented, enforced or effected. or co1nc to the inevitable conclu~ion that there was nv need for him lo have considered the two claims and that the only c.laim that fell to be cunside-i-ecl was claim (iii}. We were u rged to allow the appeal with costs. In response, counsel for the respondent argued grounds 1 and .3 together. f-l owever, our peru:;;al of the a rguments shows U1al they relate in th e nu1in to ground l. Again, we shal l 110t deal v.itli tho arguments as this is irr elevant to the resolution of 1hl~ appeal. In response to ground 2, it was conceded again that the endorsement in the memoria ls of the certifica~e of title was n1adr i.n e rror and that the lease agreem ent was nol registered. P, 1394 However, it was argued that lack of registratiol'l docs J1ol invalidate the lease or take away any protection rhst is due to the respondent.. The case of Jasuber R. Naik and Naik Motors v Agness Obama" was relied on as aulhority, where 1t was argued . we held tha{ where a Landlord is reqQired by law to procure soine authorization, he is obliged to do so and if he does not, -it shall be r.he landlord to suffer from a11y illegality arising from the failure On t.h 1s authority, it was argued that despite non-registration , ll1<" terms of the lease musL be enforceable against lhe appellants. Concerning ground 4 , refen:nce was made tu Lhc case of Holmes Limited v Buildwell Construction Company Limited,6 where it ,vas observed that where the parties have embodied the terms of the contract in a written document. e.xtrinsic evidence'· is not generally admissible to add to, vary , subtract from o r cortlradict the terms of the written contract Ln short, counsel supported the finding by the learned judge that the va.riatioi'l of the rl'nt from 1(13,500.00 to K30,000.00 was not consensual. In response to ground 5, the respondent reJected Lhc appellants• conlention thnl the judge did not address his mind LO l l5 P.1395 section 28 of the Landlord and Tenant (Business Premises) Act. lt was argued thal one of the reliefs that the responden t sought was a declara(jon that the increl;lse in rent was illega l and not i.n conformity with the Acl and that it was from this prc:mise that tbe OOl~n determined that lhe renl paya ble ¥Tas K 13,500 .00. It was also a rgued that the rcquirernent that a parcy ask s tJ,e cout'I to determine rent payable is e lecl,ive in n ature and n ol mandatory; that U1e r equire roenl that t11e application be made within tJ1ree months is also nor manda tory as t he Act itse lf Ltses the wot'cl 'n1ay' as opposed to 'shall'; and thal whet is mandatory, is on ce· the application for the dete!'trri.nation of re nt is made. 1he cou rl is mandated to make a d ctermlnation of the rent paya b le. [n response to ground 6. it was contended lhat the cou rt m flY make any orcier which it deems necessa ry fur doing justice ond ii had tbe jw·isdiction and au thority to make the order complained ot. The response to grou11d 7 was that U1e duty of tJ1e trial judge is ro determine th e issues in controversy b etween tht: parties: ond thC' argument that the judge should f1ave e lected not to dete rmm\.! • )Hi P. 1396 claims (i) and (U) because of the passage of timt: in rh~ delivery of j udgment is misconceived . We we-re urged to dismiss the appeal. We have cot1sidered the record of appeal and ru·guments by counsel. There are fotii- legal issues raised by this appt:al: (a) was the lease agreement execu ted by the parties valid? (b) 1f not , what was the 11atu.re of the- relationship thal existed between the pr1rties? (c) Based on tl1Is relationship. were t he appellants enlil\ed to increase the rent? (d) If so. how wus lhe resp011tlct'lt supposed to rhalltingc the rent change? As we have said before, we shall uot deal with ground I • Grounds 2 and. 3 a rc n1lnted ilfl.d concern t.hc firs t issue of the validity or other wise of the lease und shall be dealt with as one. H is agreed thal the lease agreement was not. n:gist.ered as required by s.ection 4( 1) of tJ1c Lands and Deeds Registry Act. There w..1 1 l ue no dispute eilher tl,at section 6 of lhe Act pl'ovides Jor the consequences of failure to register any document IJ:1at is required to be registered 1. Hldc r section 4 . Such cloe1.,1mcnl shall lit: uull und void. In Krige and another v Christian Council of Zambia7 en~-1 Makanya Tobacco Company Limited v J & B Estates Limitedij .. P. 1397 we dea lt with the same issues and we held thal the e ffect of non registration of a document that is required to be registered is l'h at it is void for a ll purposes whatsoever. This is \. Veil settled law, Therefore, the subject lease agreement was void for l,,ck of registration . n.otwithstanding (.hat the minds of the parties me t to execute t.he lease or the parties had lntended to com ply ,with the law when they signed the lease. Without registralion 1 which was c:1 cond ition precedent to its validity, t,he judge oughl nol have deem.ed lhe lease to have commen ced on I I ui of May, 2006 and terminated on l l Lh of May, 2 01 1 or granted any of the remedies sought by lhe rcspond ent which we re- anchored on the validity oi the lease. fi''urthermore. we disagree with Lhe conclusion by t he judgt: that 1he delay 111 registering the lease was caused by the Trustee-s· delay 1n registering the Pension Fund ru1d that U1crcfon:, the appeila11ts could noL benefit froni lht!ir own tra nsgress1on or mistake, We ate also not convinced that the:: Board of Trustees did not d isclose lhat Lbey were a cting as agents for lh!:" e:xaminations Council of Zambia Pension 'rrust Sch e me, tW'ld tha1 this was '' undlsclosed agency'. • P. l 3Y8 The case of Jasuber R. Na1k and Naik Motors v Agness Chama5 relied cm b,v the respondent is not helpful since it dealt with failure by the landlord to obtain Presidential consent to lease under the Land (Conversion of Tilles) Act and E!.pplicaUon uy the teuant for the granting of new tenancy of business premises. fn contrast. this case con cerns non-registration of 1:1 lease" As disclosed u~ paragrapli 16 of it.s affidavi, in support of origi11a.1i-ng summons, 1.hc re.spondent was aware at the limo of execution of the lease lhat the Trust Scheme was not registert-d and 1 h..it tl1e 1H•r1ilicate of title would bt:! rectified as soon as the: Trusl Scheme wc1s registered. The 1'rl..1st Scheme was registered as ct body corporate on 4,h January. 2007 prior tn the occupation tl.ate It is not clear from the reco rd, wh)' the lease wa:$ not registered , Perhaps, ll had somethi ng to do with the intended increose of the rent and the Fad that the huge cosl of converting a dwelling house into a lodge was 11ot anti(;'ipated by the appella.nls. v\lha tever may be said about the: lease, the uuth is that since it was \10id for lack of registt'ation, 'it cou lcl 1101 be enfo1·ced or relied upon .. _, . • • P. J 39g 'This brings u::; to the second issue of the kind of tcn1;u1cy 1hn1 existed between the parties. Again t.his is well sett led. In Krige and an.other v Christian Council of Zambia we found thaL a tenancy al will was created by the possession of the premises and wheu the applicant pair! rent and re nt was accepted by the l .. 1 11cspond1:nt, o pe1iodic tenancy from y ear to year was created. In Makanya Tobacco Company Limited v J & B Estates Limited'. we sa1d that if the te11ant took poss~sion with the landlord's consent, and rent was paid a n<. I 11ccepted 1 by presui-nption of law a monthly or yearly periodic \t:nancy arises. m dependentl.v of the lease and that, any daitn in a cow·t nr law, either by 1.he landlord or tenant would depend not on t he· lease bur upon lhe lenant's possession and the payment and accepta 1,cc of rent. On the basis of all the foregoing. w0 fully agree \,r1th Lhe appellants that there existed a 1nonthly tei~ancy b etween the parties. as a result of tr1e occupalion of the prcrnises by the respondent ~u1d the payment of monthly rent or Kl 3,500.00 'YVhicl1 was accepted by the appellants. We emphasise that this period •• P. 1400 tenancy existed by operation of law independently of thi? void least: agreement. Therefore, grounds 2 and 3 have me,iL and succeed. We come now to groW1d 4 and t.he qu<::stion whether tbc appellants were estopped from il'lcreasing the ,non! hly rent.. The view we take is that since the respondent's claim that 1lie upward rl!n1 adjustment was illegal was. anchored on the validity of the lease agreement. and the lease being void, we do 110(. see anythiog that could stop the appellants from adjusting 1he rnonthly rent to reflect the assessed rental value of the property. The record shows thal t.he property was purchased a t Kl ;070,000 .(rebased) and that the appellants spent l< I. ,409, 124.00 (1·ebased) on renovations. ln rejecting thjs amounl, the learned judge simply said he did nol agree that the appellants spent t<l,409,124.00 011 renovations when they bought the building al I<l,070,000.00. The judge glossed over the iss1.t<:' while crediting lhe respondel'lt with the mor1cy it spent on its part. Anyhow. rhe fact that the respondent also spent money on th~ renovations could not stop the appellants fn.lm increasing the· n: nt, particularly that there was a valuation report to support the • , . 11 I P. 140 I increase. We find !llcrit in ground 4 and set aside the finding 1.ha1 th~ Ltpward a djustmept of rent was illegal as it was not ~onsensual. In grm,tnd 5 , we agree wlth the respondent that section 28 of the Landlord and Tenant (Business Premises) Act is n ot frruncd tn mandatory terms because of the use o r Lh<.: wtJrd "n1ay". However) it could have been most appropriate to apply for det.erm.u1atil)n of' rent Lind er t.he Ac t (if it applied lo the tenancy), instead of issuing originating s ummons under Order 30( 11) of the High Court Rules1 Cap 27 :,isking for declaratory orders . It is Lrii-e tha1 originating summons rnAy be used to oomrnence an actjon where issut:s 1n disp\Jte between parties revt1lve around simple questions of construction of a statute or documents or quest.ions of pure law ,vhere it i s unlikely that substantial dispute of facts n1ay arise. We must also sla1-e that a declaratoa·y j u dg1nent is li1nitcd in its power, lt defines the legal rela1.ionship between parties and their 1igbts in the matter before the court but it docs 001 provide for any ordr.r which may bt'. enforced against the defendant . In this case, th e respondent did not clem<,nsrrate that Lh~ rnatter revolved entir ely on rhe construction of a statute o-r the '. t P. 1402 lease. F'u,ther, the bw·den_ was on the respondent to show non compliance by the appellants with specific provisions of the Act when it increased the rent. This was not done. Suffice to add that since the lease was void, it could not be re lied on to challenge the rental increase specially that the claim was linked to the first claim, which was flawed. We find merit in ground 5. Regarding ground 6, the respondent conceded that it did not c1ain1 for the money il expended on renovations and the 'intention of the parties was that the .monies were to be receipted. quantified and presented to the landlord with receipts and was to forn1 part of lhe rent. to be recovered in equaJ instalments after the first yc,u· ot' occupation. Despite that the lease agreement was void, tht: respondent remained in occupation uf t:he prop~ity for the cnti_rt: five year period of lhe void lease and there was no evidence that il did nol recover the 1noney from the rentaJs during that period. Moreover, the main claim having been for a d eclaratoi')' orclt'r, the ordet that the respondent bi; credited v.-ith the n1ot1cy it spent on renovations should not h.ave been made. Ground 6 too hos mcnl and succeeds. J, ~ '. I ( 1round 7 fat: h the l ar ,e i j udg,e- !'o ,a1fo ,t; n l 1 · cogru.zanc of th fi c that at he time j u dgment ,v d Ji\ ered som of th r, s.ponden s claims l , d becon1e1 ae, demk and nugato -. Whil th fie is som ai:gu , I h court had a dut I o · djudi a - on th claims befor il ' a · d . b ve., the respond n seel·ing de ·laratory judgm -n l 1 in olve an mad under cl i;rn (ti) :ror r gi tra i n . f tl _ 1 a Th · r fo tJti s g1·ound mu t olla:ps .. rn all ' app a1 sub tan ially succe ds . \V .11lr w it and a idf! le jud ent of th I C . MAMBILIMA CHIEF JUST CE hko SUPREME COURT JUDGE IU-~N-'& SUPREME COURT JUDGE