Wimpy Investments (Z) Ltd and Anor v Mwansa and Ors (SCZ Appeal 180 of 2000) [2001] ZMSC 124 (28 December 2001)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 180/2000 HOLDEN AT LUSAKA (Civil Jurisdiction) WIMPY INVESTMENTS (Z) LIMITED PETER LUKANTIKA rST APPELLANT 2nd APPELLANT AND MARTIN MWANSA MAXWELL KOMA LEMBA MULENGA JOSEPH KAOMA NATIONAL HOUSING AUTHORITY T' RESPONDENT 2nd RESPONDENT 3rd RESPONDENT 4,h RESPONDENT 5th RESPONDENT Coram: Sakala, Chirwa and Chibesakunda JJS 27th November and 28th December, 2001 For the Appellants: Mrs. L. Mushota of Mushota and Associates. For the Respondents: Mr. G. Muhango of Nyangulu and Company. Sakala, JS., delivered the Judgment of the Court. JUDGMENT : J2 : For convenience, we shall refer to the Appellants as the first and second Plaintiffs and to the Respondents as the first, second, third, fourth and fifth Defendants, which they were in the court below. This is an appeal against a Judgment of the High Court dismissing the Plaintiffs’ claims for wrongful eviction from the 5lh Defendant’s premises which they occupied as tenants; for the return of goods collected by the Defendants; or in the alternative, the value of the goods collected. The Plaintiffs also appealed against an order entering judgment in favour of the fifth Defendant in the sum of KI,675,000:00 as being rent arrears. The brief facts, as can be ascertained from the oral, documentary and affidavit evidence, are that the first Plaintiff entered into a tenancy agreement on 17th March, 1993, with the fifth Defendant to occupy house No. 266 - 01 Vubu Road, Emmasdale, Lusaka. The second Plaintiff, by virtue of being Chairman I Director of the first Plaintiff, was accommodated in this house. The evidence established that on 29th September, 1995, pursuant to an eviction order dated 26th September, 1995, the fifth Defendant through its employees namely the first, second third and fourth Defendants carried out an eviction order. There was also evidence that at the time of the eviction, the second Plaintiff was not at the premises but one, by name of Damaless Mukoloba, Sister-in-Law of the second Plaintiff, was present at the house when the Defendants confiscated the goods. It was common cause that Damaless signed for the goods collected by the Defendants. It was also common cause that few days later, the fifth Defendant returned to Damaless : J3 : goods collected from the second Plaintiffs house and that these goods were signed for. The Plaintiffs commenced an action by Especially Endorsed Writ claiming the return or the value of the goods. The evidence established that sometime in December, 1994, the fifth Defendant wrote the first Plaintiff a letter indicating that the first Plaintiff was in arrears in the sum of K800,000:00 and informed the first Plaintiff that in default to settle the arrears, the fifth Defendant will be left with no other option but to evict the Plaintiff without further recourse. Further evidence on behalf of the Defendants was that, from January 1995 to may, 1995, the first Plaintiff was pleading in writing, for more time within which to pay outstanding balance or rent. The second Plaintiff testified that he was not aware of this evidence. The second Plaintiff testified that he had not recovered his household goods collected by the Defendants. He contended that the eviction was illegal. He prayed that the court should order the return of his goods to him in the alternative that the Defendants should be ordered to pay KI7,734,000:00, being the value of the household goods collected. When cross examined, the second Plaintiff expressed complete ignorance of the Defendant’s letter of 19th December, 1994 advising the first Plaintiff s outstanding rental arrears. He expressed ignorance about the letters written by one Mr. J. Shawa, an employee of the first Plaintiff, pleading for more time within which to settle the rent arrears. According to the second Plaintiff, he was seeing those letters for the first time in court. He contended that Damaless, his Sister-In-Law, only collected from the fifth : J4 : Defendant her personal goods while his goods were not collected. The second Plaintiff also claimed K5 billion as compensation. He, however, admitted in cross-examination that he had not cleared the rent arrears due to the fifth Defendant. The learned trial judge considered the evidence on record and found that as far back as 19th December, 1994; the Plaintiffs owed the Defendant rental arrears to the tune of K800,000:00 The learned trial judge also found that the second Plaintiff’s denial of the letter from the fifth Defendant reminding them of the rental arrears as well as the letters from the first Plaintiff’s Financial Director pleading for more time within which to pay rent arrears was not truthful. The court noted that the provisions of Act No. 12 of 1994 empowered the fifth Defendant to levy distress without going to court for goods lying within their premises for rent arrears provided one month notice is given to the defaulting Defendant. The court observed that the eviction order of 26th September, 1995 showed that the Plaintiff was in arrears of rent amounting to KI,675,000:00. The court concluded that the fifth Defendant having issued a notice to the first Plaintiff by letter dated 19th December, 1994, there was no need for further notice to be issued to the Plaintiff for their default in paying rent which was due. The court dismissed the Plaintiff’s claims with costs. Hence this appeal before us. On behalf of the Plaintiff, Mrs. Mushota filed written heads of argument based on four grounds of appeal. These grounds are that the court erred when it held that the letter dated 19th December, 1994 constituted a valid notice of an eviction that took place on 29lh September, 1995 without warning, that the court erred in fact when it held that the Appellant owed KI,675,000:00 rental arrears as at 25th : J5 : September, 1995; that the court erred that the Plaintiffs had not been good paying tenants for six years; and that the court erred when it held that the goods seized by the Defendants were only those that belonged to Damaless Mukoloba which were subsequently returned to her. We heard various arguments in support of these grounds that according to the lease agreement, a defaulting Defendant had to be given 30 days notice before eviction; that the actual rentals in arrears had not been established; that the first Plaintiff had been a good paying tenant who faced a liquidity problem which did not entitle the Defendant to evict their employee without the requisite 30 days notice; and that the Plaintiffs’ goods had not been returned. In responding to all these arguments and submissions, Mr. Mhango also filed written heads of arguments. The gist of the submissions was that the fifth Defendant’s letter of 19th December, 1994 was adequate notice for eviction which took place on 29 September, 1995; that the amount owed was not denied; that il the tenancy agreement did not take into consideration the anticipated liquidity problem of the Plaintiff, that the seizing of the goods by the Defendant was in the presence of one Damaless Mukoloba described as Sister-In-Law of the second Plaintiff who signed for the goods collected and also signed for the goods returned. We have very carefully considered the judgment of the learned trial judge, the evidence on record and the submissions by both learned counsel. It is significant and pertinent to observe that Ms. Damaless Mukoloba, who would have been a very vital witness in relation to the goods seized and returned, was not called by : J6 : the Plaintiffs as a witness. It is also significant to observe that one by the name of J. Shawa, who would have been a vital witness for the Plaintiffs in relation to the documentary evidence on record about the notice of rentals in arrears and pleading for more time within which to pay the rental arrears, was also not called as the Plaintiffs’witness. Above all, the second Plaintiff who was not present at the time the goods were seized, and who was not present at the time the goods were returned to Ms. Damaless Mukoloba, pleaded total ignorance of the notice of arrears by the fifth Defendant and the plea for more time within which to pay the arrears by his own Financial Director. As we see it, the case on behalf of the Defendants stood unchallenged. The findings by the learned trial judge can not be faulted. In any event, the fact that the Plaintiffs were in arrears was not in dispute. This appeal is dismissed with costs to be taxed in default of agreement. E. L. Sakala, SUPREME COURT JUDGE. D. K. Chirwa, SUPREME COURT JUDGE. L.p. Chibesakunda SUPREME COURT JUDGE.