Xpress Food Limited v Huajiang Investments Limited and Anor (2023 /HP/ 0850) [2023] ZMHC 91 (12 July 2023)

• Rl IN THE HIGH COURT OF ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil ._rurisdicnon) 2023 /HP/ 0850 PLAINTIFF 1st DEFENDANT 2nd DEFENDANT BEFORE HO~ MRS JUSTICES. KAUNDA IN CHAMBERS THIS 12thDAY OF JULY~2023 For the Plainriff For the Defendari,ts : Mr. Jar'les Temoo, Messrs Makebi Z~~ s : Ms. K. Mwewa, IVlessrs Lennard Lane Partners RULING CASES REFERRED TO: 1. Ventriglia v Ventriglia 2. Chikuta v Chipata Rural Council 1974 ZR 241 3. Apollo Refrigeration Services Co. Ltd v Farmers House Ltd 1985 ZR 4. Lily Drake v M. B. L. Mahtani And Professional Services Limited 1985 ZR 236 5. Ntasuwilanga Enterprises Limited v Mushe Milling 201O/HP/0564(unreported) 6. Beatrice Mulako Mukinga v Amber Loiuse Guest House, Milan Trbovic v Attorney General 2/8/237/2010 7. Bishop John Mambo & 345 others v Francis Kasonde & 3 others 2013/HP/1006 8 . Corpus Legal Practitioners v Mwanandani Holdings Limited SCZ No 50 of2014 ;.,EGISLATION REFERRED TO: 1. The Rules of the Supreme Court of England, 1999 Edition 2 . The Landlord and Tenant (Business Premises) Act, Chapter 193 of the Zambia R2 1. INTRODUCTION 1.1 This Ruling is on preliminary issues that were raised by the Defe ndants, Hua Jia.1g Investments Limited and KJ Properties Limited pursuant to Order 14A and Order 33 Rule (3) of the Rules of the Supreme Court of England, 1999 Edition. The application seeks the determination of tl:.e folloVving questions: L T.lilhether :he Plaintiff was in Order to :ssue originating process by way of Writ of Summons on a matter that borders on the Landlord and T eri.,ant (Business Premises,. Act, Chapter 193 of the La"J.,S of Zambia. 11. That if the answer is answered in the affirmative, then the saici action be dismissed with costs to the Defendant, but if :he question is ar.swered in favour of trie Plain:iff, then the Court should proceed to set down the matte r for trial. 1.2 The application is supported by an aff:davit and Skeleton Arguments and a List of Authorities. Xpress Food Limited in op:;:,osition to the application, file d an affidavit in opposition and Skeleton Arguments in oppositionon 13th June , 2023. /-_n affidavit in reply and Ske~eton Arguments in reply were file d on 14th June, 2023. 2. BACKGROUND 2.1 Seekir:.g to enforce its' right under a lease agreement which was execute d on 1st July, 2022, Xpress Food Limited commenced this action on 16th May: 2023, by Writ of R3 Summons acc-:::impanied by a statemen: of claim and the ether requisite documents claiming: r. An Order and ci.eclaration that Xpress Food Limited was and is a lawful protected tenc_nz of the demised corrunercial property and premises sti:uated at Stand No 4718 Comer of Haile Selassie Aven:te/Tukuluho Road Lo-,,_gacres Lusaka for the dura.:ion of the lease and is entitled to quiet enjoyment, occupation, possession and use of the said demised property and premises. i i.. An Order and declaration that the purported Notice to vacate the said demised Commercial property and premises was and is a nullity, illegcl, riul! and void ab initio anc. of no consequence or effec1: i...1harsoever. iii. An Order of injunction restraining Hua Jiang Investments Limited and KJ Proper.ies whether by themselves or servants, agents, enployees or whomsoever, from ejecting or evicting Xpress Food Limited from the commercial proper:y c.nd premises situate along Haile Selassie Road Lori.,. Jacres Lusaka in the Lusc)ca Prouznce of the Republic of Zambia, and also from harassing, intimidating, victimizing and interferir.,g in any way howsoever u.rith Xpress Food Limited,s smooth business operations 2nd peaceful quiet enjoyment, occupation, posses sion e,nd use of the said property ar.,d premises until af-er the final hearing and determination of the main matter by the Court. ( R4 iv. F:.1,rther or in the alternative, an Greer and payment by Iiua Jiang Investments Limited 2nd KJ Properties L~mited ~he true market value 'Jj the structural developments erected by Xpress Food Limited on the demised commercial property and preMises to be assessed. i:. Costs. vi. Any other relief that the Court may deem.fit. 2.2 Hu2.. Jiang Investments Limited and KJ ?roperties Limited entered 2..ppea:-ance and filed their defence and the other doc..1ments on 31 st May, 2023. 3. AFFIDAVIT IN SUPPORT 3.1 ~1::e affidavit ir: support of the applicaticr:, : s deposed to by Fra .... 1.k Mukuka, a property Manager : or Hua Jiang Ir:vestme:1.ts Limited. He avers that 2..mong the reliefs sought by Xp:-ess Food Limited, is that it is the lawful te:1.ant of a portion of the demised corr.mercial premises, which is situa-:e at Stand No 4 718 Longac:res. It is further c:eposed that Xpress Food Limited also clai:ns that the ;iurported No-:ice to vacate the demised property is a ::1.uJity, illegal, null and void, and of no lega.. consequence. 3.2 T:-ie ccntention is that the issues in dispute in this matter centre on a lease agreement that was executed by the ;iarties. Francis Mukuka accordingly avers that he has :Jeen advised by his advocates, that the issues in :::or:.ter:.tion border on the enforcement o:: the Landlord and Tenant (Business Premises) Act, Chapter 193 of the RS Laws of Zambia. Thus, the matter sh::,uld have been ::c:r.menced by Originating Notice of Motion. 4. SKELETON ARGUMENTS IN SUPPORT 4.1 The reliefs claimed by Xpress Food Limited are tabulated, 2nc. the law that has been relied on, in making the appiication is cited. The argument is further that Order VI of the High Court Rules, Chapter 27 of the Laws of Zambia, provi::les that a ll matters must be commenced by ':lri-:: of Summc,ns unless otherwise provided for by law. It is alsc argued that Section 26 (a) of the Landlord and Tenant (Business Premises) Act sta-::es that the Chief J ustice may by Statutory Instrument make rules, for among other issues, tl:at provide for matters of procedure i;,.::1c:.er the Act. 4.2 Th e argument 1s that Statutory Instrument No 31 of 1973 Act No 13 of 1994 which \v-as promulgated by the Ch:.ef Justice i::1 Section 3 states that: "3. An application made to the Court under the Act shall be commenced by an originating notice of motion. Evidence in support thereof may be on affidavit or, where an affidavit is not required by these Rules, viva voce." 4.3 The argument is that the law having made provision that ma: ters falling within the ambit of the Landlord and Tenant (Business Premises Act) Chapter 193 of the Laws of Zambia, can only be commer:ceci by way of Ocginating Notice of Motion, enta ils that tl:is action having been comme::1ced by Writ of Summons, should be R6 c.is□issed. The authority cited in s upport) is the case of Ventriglia v Ventriglia(1J, stating that the Supreme Court i::1 that matter, h eld that anything done outside the law arncun ts to no:hing. 5. AFFIDAVIT IN OPPOSITION 5.1 Ismail Pandor, a director 1n Xpress Fo8d Limited, in opposition, deposes that the iss1:es ir: dispute in this matter are highly contentious, as t::"iable issues h ave been ra.ised, which can only be determined b y a f-1ll trial in Open Co1:rt. 5.2 Tt.1:s, he h as been advised by his advccates, that the correct mode 8f comm encem ent of the pr:iceedings is by 'Nri: of Summons. 6. SKELETON ARGUMENTS IN OPPOSITION 6.1 I: is a rgued that contrary to the assertions that have been r::ade by Hua Jiang Investments Limited and KJ Properties L::.rr:.ited, t h at the matter should have bee::1 co:nmenced by Originating Notice of Motion, t h e correct mode is by Writ of Summons. Xpr ess Food Limited in that regard, argues that it is essentia lly challenging the pu:-ported notice t o vacate tha:: was given by Hua Jiang Investm e::1ts Limited and KJ Properties Limited through the lett ers dated 22nd Nm-ember, 2022 and 3 1st January, 2022. 6.2 Th2..t i::1 response to t h e said notices, Xpress Food Limited :.nformed Hua Jiang Investments Limite:l cL'1.d KJ Properties Lin:.ited that it would not yield vacan : possession of th e :;:iremises, on ::he grounds inter alia, tt.2..t it is a protected tenant of th e property, as per the lease ag:-eerr:.ent tiat was R7 executed between the parties. The conten-::ion by Express Food Lirr:ited, is that t he purported notice to vacate was illegal, null and void ab initio and of no legal consequence or effect whatsoever or at all. 6.3 StiL in argument, Xpress Food Limited states that it is alive t c the provisicns of Ru le 3 of the Landlord and Tenant (Business Premises) Act Regulations, which provides that api:;lications -.inder the Act shall be commenced by Originating Kotice of Motion. F--1rthe:-, that the said r::rovision states that evidence in support thereof, may be by affidavit or viva voce. 6.4 Ho'-vever, it is :::ontended that a careful reading of that Act, specifies what applications mav be ~ommenced by Originating Nctice of Motion. The argumen-:: that the issues :.::1 dispute in this matter, do not fall within those whose :;i::-oceedings a:-e required to be com men-:ed by Originating :-Jotice of Motion. It is further argued that it is trit e, that -;;:;;here the reliefs sought are not specified under the Landlord and Tenant (Business Premises) Act, the mode c•= commencement is by Writ of Summons. 6.5 As authority, the case of Lily Drake v lVI. B. L. Mahtani and Professional Services Limitedf4J is ci _ed, arguing that -::he Supreme Court in that matter observed that: "We have compared the provisions of the Rent Act and its Rules with those of the Landlord and Tenant (Business Premises) Act Cap.440 which are in similar terms as to the making of applications by originating notice of motion. As R8 we pointed out in the case of Appollo Refrigeration Services Limited v Farmers House Umited (1) none of the applications mentioned in the Landlord and Tenant (Business Premises) Act provides for an application for possession. Consequently, a claim for possession of business premises must be commenced by Writ. In the Rent Act: however, sub-sections (6) and (7) of section 13 both refer to landlords obtaining orders for possession "under this section." The use of these latter words envisages applications for possession under section 13 despite the fact that at first sight the section appears to be a prohibition section and not an enabling section. In view of the fact that applications for possession are envisaged under that section Rule 3 relates to such applications. Consequently, as that rule provides for the commencement of applications by Originating Notice of Motion the exception to Order 6 Rule 1 applies and the matter is not to be started by Writ of Summons. We appreciate that these technicalities may not always be clear and for that reason it has always been the practice of this Court to allow amendment of proceedings which have been incorrectly commenced so long as no injustice is done to the parties. In this case no injustice will be done to the Appellant by allowing the R9 Respondents to amend their form of action to one of Originating Notice of Motion." 6.6 It is also argued that Hua Jiang Investments Limited and KJ ?roperties =:..,imited have made the application pLrsuant to Order 14A of the Rules of the Supreme Court of England, 1999 Edition. However, tha t Order provides tt.a : or:ly applications t:iat would determi:ie the matter with finality should be made pursuant to that Order. Tl:at this pos1tio::.1. was reiterated in the case of Ntasuwilanga Enterprises Limited v Mushe Milling(5J. 6. 7 ':'he contentior: is that in this case, the issues raisec:. in the apr:lica tion, would not result in the mat: er being disposed v.;.rit:.iout a full trial, as triable issues have been raised . The case of Beatrice Mu lako Mukinga v Amber Loi use Guest House, Milan Trbovic v Attorney General f6J is relied on as authority that buttressed that posit.en. Also cited as aut..'1.ority in : hat regard, is the case of Bishop John Mambo & 345 others v Francis Kasonde & 3 othersf7J. 7. AFFIDAVIT IN REPLY 7. 1 ?rcL.'1.cis Muku ka, a Property Manager avers that he has ·:Jee:1. advised ·-:Jy the advocates who are on record, that : here is nothi::g contentious about interpreting a tenancy a greement. He also states that he has beer: further advised ·:Jy his advocates, that this matter oug:it to have been -:ommenced by Originating Notice of Moti'. Jn. 8. SKELETON ARGUMENTS IN REPLY 8.1 =t :.s argued that Xpress Food Limitec. 1n its' lengthy Skr::leton Arguments, concedes that the mode of RlO c:orr:mencemer:t of any actions under the Landlord and Tenant (Business Premises) Act Chapter 193 of the Laws of Zambia, is by way of Originating Notice of Motion. It is fu::-ther contented that Xpress Food Limited has argued t:.--ia-: the application cannot be dealt with 1.-:.nder Order 14A of the Rules of the Supreme Court of England, as there are triable iss1.:.es. 8.2 ~herefore, it is not possible for the Court t8 determine the prelim:.nary issues raised, without deter:r:.ining the merits anc.. demerits of the case. However, Hua . Lang Investments :::..,in:::.ited and KJ Properties Limited argue that the matter cught to have been commenced by Orig:.nating Notice of Ylotion, and that the issues that fall fo::- c..etermination are within the arr.bit of Sections 4 and 5 of the Landlord and Tenant (Business Premises) Act. 8.3 It is further E.rgued that the issues in :::o:1tention in this ma-:ter, border on the Court pronouncing i-:self on whether the Nctice of ':'ermination was done in conformity with the la w. In that regard, reference is made to t he first Two (2) claims in the Writ of Summons. Hua J:. E.ng Investments and KJ Prope:::-ties Limited go on to argue that the rest of -=he reliefs sought, are dependent on the success on the s--.iccess of the first Two (2) reliefs. 8.4 Thus, the cor:tention is that it can be d :.scerned that the acton is cen-:red on the Notice to Terminate and/ or to -.1acate the prcperty, which will be guided by the provisions of Section 4 and 5 of the Landlord and Tenant /Business Premises) Act. Further, t hat if this Court agrees Rll -Nit::-i Hua Jia__1g Investments and KJ Properties Limited, -::hen Section 26 (3) and (4) of the Landlord and Tenant (Business Premises) Act takes effect, as ~t prescribes how -::he Court is moved. 8.5 =t is also ar~ed that the case of Apollo Refrigeration v Farmers Housef3J does not aid Xpress Food Limited, as the -:ircumstances of that case are different from this case. ✓uoting the holding in that case, it is argued that the said -:ase guided that the Act prescribes the situations in which an Originating Notice of Motion can be -c..sed, and that a ::la:.m for possession is not one of them. 8.6 Hua Jia:ig Investments and KJ Proper::ies Limited argue th2.t they have not made any claim for possession of the prcperty in this matter, but rather, :..t is Xpress Food Limited that c0ntends that the notice to -::erminate is illegal, nu] anc: void. Therefore, reliance on the case of Apollo Refrigeration Services Co. Ltd v Farmers House Ltd (3J is misplaced. 8.7 The argumen-:: 1s further that Sections 4 and 5 of the Landlord and Tenant (Business Premises) Act provide :or the challenge of a notice oftermina tion. Therefore, the ::12.tter ought to have been commenced by Originating No-cice of Moti'."Jn. 8.8 As regards the submission by Xpress Food Limited placing rel:.ance on -::he case of Ntasuwilanga Enterprises v Mushe Milling(5J, that this matter ca:inot be determinec: pursuant to Order 14A of the Rules of the Supreme Court of England, it is stated that the decision in that R12 case, was by a Court of equal jurisdiction. T:ierefore, it is on:..y of pers1.:.asive value, and this Court may ignore the sa:.d decision. 8.9 The provisions of Order 14A of the Rules of the Supreme Caurt of England are reiterated, with the argument being t:iat the Order empowers the Court, at any stage of the :r::rJceedings -:o determine a question 8f law or the construction of a document. It is stated that 1n this a:r::plication, t."1.e Court is being called upon to determine a q1.:.est:on of law, relating to the mode of commencement of the action. 8.10 Tr:erefore, if this Court finds that the action was irregularly commer:ced, and that by constructicn of the document ca. Jed the norice of termination of the lease, it falls within the ambit of Sections 4 and 5 of the Landlord and Tenant (Business Premises) Act, it wi'l proceed to finally det ermine the whole case. 8. 1 ::._ Tr:us, it is contended that the submissio:i. that this Court 01.:.ght to look at the entire facts of the case in applying Order 14A of the Rules of the Supreme Court of England, is not only misconceived, bu-: a._7. attempt to make :he Court bejeve as they do. Conseq-.1e:i.tly, the case of Beatrice Mulako v Amber Louise Guest House and others equaL~1 does not aid Xpress Food L:.mited. 8.12 Tr:at th:.s is because, the Court in that m &.tter, held that a Statutory Instrument cannot override an Act of Parliament, ar:d the mat:::er was dismissed on accoun-:: of having been w:-ongly corr.menced. Then on appeal, it was held that R13 notwithstandir:g the mode of commencement, where there werr:; h ighly cor.tentious issues, which coulc. not be decided by affidavit evicence, the matter had to rroceed to trial. 8.13 H::>wever, in this case, Xpress Food Limited other than just a[eging that there are contentious matters, has not de□onstrated what those contentious :.ssues are. On the of.1.er hand, Hua Jiang Investments Limited and KJ Pro?erties Limited insist that there is r:otJ.--jng contentious abo--. J.t interpre-:::ing whether the notice to terminate was la-n:ully issuec. or not. 8.14 It is their posi-:::ion that the same borders on interpretation or -:onstructicn of the document, anc.. a decision being made as to w:iether it was tailored wit:iin the confines of t.:.-:e Act. Therefore, it is submitted that the ::>pposition lacks me:rit, and is c.evoid of any contentious issues. The Court is t:rn .. :s urged to dismiss the action, as it ought to have been ccrr:.menced by Originating Notice of Motion. 9. SUBMISSIONS AT THE HEARING SUBMISSIONS BY COUNSEL FOR HUA JIANG INVESTMENTS AND KJ PROPERTIES LIMITED 9.1 A: -::he hearing, Counsel for Hua Jiang I:1vestments Limited anc. KJ Properties Limited stated that they relied on the affidavit whicl:: was filed in support of the application, as 'NeL as tl::e Ske~eton Arguments in support. 9.2 In response, Counsel for Xpress Food Lir:-jted stated that they opposed the application, and placed reliance on the affidavit :..n opr:osition and List of Authorities and Skeleton R14 Arguments in opposition, which were c.ated 13th June, 2013. 9 .3 It was Counsel's submission in augmentation, that what the Court was being invited to do, by virtue of the 2..:;:ii:lication that had been made by Hua. Jiang Investments Lirr:ited and KJ Properties Limited, was t:::> determine the ma:ter with finality, on the premise of One { 1) of the reliefs that is being claimed, cannot be attainec. by moving the Court by the default mode of commenceme:it, being by Writ of Summons c..nd statement of claim. 9.4 The submissicn was that the Court would note that Six (6) :-eliefs ha.d been indorsed in the Writ of summons, and that ad:nittedly, the first relief claimed, is a relief -.:hat c:Juld be claimed by commencing the proceed:..ngs using an Originating Notice of Motion under the Landlord and Tenant (Business Premises) Act. :-Iowever, the view taken was that the rest of the reliefs were suitable -.:o be 2laimed under a -writ cf Summons. 9. 5 The ref ore, the question that arose is what does a Court that is faced with such a situation do? Counsel posed the question; does it proceed to dismiss t hat matter? He answered tha: question in the negative, su·:)m:..tting t hat no, t:ie Court does not proceed to dismiss : he m &..tter. He drew authoritv from the case of Corpus Legal Practitioners v 1Vlwanandani Holdings Limitedf8 J, stating tt.at the S1-:preme Court at page J16 of the J-t..::.dgment in that ::iatte::-, noted that while the procedure for ccmmencement cf proceedings for removal of a caveat w2.s by Originating n RlS S1.:.□mons, however, as that was not the cnly relief that was being claimed, the Order of the Judge directing amendment of f:1e -Nrit of Summons and statement Jf claim, to include an Order for tt.e removal of a caveat, was not improper. 9.6 Tl:erefore, appiying the rationale in that case to this :natter, tl:e s1.:.bmissicn was that this matter is properly before C::;1.:.rt, as the c-nly relief that is tenable under the Landlord and Tenant (Business Premises) Act is the first relief that is claimed, wrile the rest of the reliefs sought can only be clai_--ned under a Writ of Summons. Or:. that basis, it was pra~1ed that tr:e preliminary issue raised -x dismissed, as what Hua Jiang Investments Limited K. J Pr::>perties :=..,imited v.rere suggestir:.g was a multiplicity of actions. REPLY BY COUNSEL FOR HUA JIANG INVESTMENTS LIMITED AND KJ PROPERTIES LIMITED 9.7 T::-ie reply, was -::hat reliance was placed on the affidavit in repiy, and Skeleton Arguments in reply. 10. DECISION OF THIS COURT 10. 1 I have considered the preliminary issues that ha\·e been raised. They 1:-:ave been made pursuant to Order 14A and Order 33 Rule 3 of the Rules of the Supreme Court of England, 1999 Edition. Order 14A of the said Rules of the Supreme Court of England provides that: "(l)The Court may upon the application of a party or of its own motion determine any question of law or construction of any document arising in any cause or matter at any stage of R16 the proceedings where it appears to the Court that - (a) such question is suitable for determination without a full trial of the action, and (b) such determination will finally determine (subject only to any possible appeal) the entire cause or matter or any claim or issue therein. (2)Upon such determination the Court may dismiss the cause or matter or make such Order or Judgment as it thinks just." 10.2 Order 33 Rule 3 of the Rules of the Supreme Court of England, on :he other hand states that: "The Court may order any question or issue arising in a cause or matter, whether of fact or law or partly of fact and partly of law, and whether raised by the pleadings or otherwise, to be tried before, at or after the trial of the cause or matter, and may give directions as to the manner in which the question or issue shall be stated.:-, 10.3 I-:: -:ar: be seen from Order 14A cited aboT,1e, -::hat it can be i::1.voked at any stage of the proceedings to c.etermine any c;_uestion of law or the construction of any document, which en being determined, would determi::1.e the matter with [r:..ality. This is after notice of intention to defend has been gi"'>en, as pro\·ided in Order 14A/2/3. R17 10.4 -Nith r egard tc• Order 33 Rule 3 of the said Rules of the Supreme Court of England, that p rovision □ay be :..nvoked, to de-::ermine any question of law -::hat a rises by the ? leadings or o-::h erwise, before, at or after f:1.e trial. 10. 5 In -::his matter, the questions raised relate to whether this ma-::ter was correctly commenced by Wr:..t of Summons, as '.)pposed to Originating Notice of Motion pu:-suant to Rule 3 of the Landlord and Tenant (Business Premises) Regulations, the matter b eing centred on -::he notice to ter::i.inate t h e tenancy agreem en t which was issued. The cor:tention by Hua Jiang Investments =.,imited and KJ Prcperties Lir:iited, is that the questio:i 8f the notice to ter.:ninate the tenancy having b een la\vfully issued, falls TNithin the ambit of the Landlord and Tenant (Business Premises) Act, Chapter 193 of the Laws of Zambia. 10 .6 =n '.)pposing the application , Xpr ess Food Limited ce>ncedes -::h at the issues in contention centr e on the n otice of rer:nination of the tenancy. However, i-::s: position is that :.ontentious issu es have been raised, which can only be d.e-::ermined after a full trial. 10. 7 Re~iance has been placed on th e case of Lily Drake v M. B. L. Mahtani and Professional Services Limited 141 sta ting that i-:: was held in that matter, t::.at the Landlord and Tenant (Business Premises) Act, Chapter 193 of the Laws of Zambia, provides fo:- mat-::ers t:iat fall under the Act, whose proceedings should :Je commenced by Originating N8tice of Motion. R18 10.8 T:ie Landlord and Tenant (Business Premises) Act, Chapter 193 of the Laws of Zambia in :.ts' preamble states that: "An Act to provide security of tenure for tenants occupying property for business, professional and certain other purposes; to enable such tenants to obtain new tenancies in certain cases; and to provide for matters connected therewith and incidental thereto." 10.9 Tl:e preamble is very clear that the Act is to provide for securi-::.y of 1enure for tenants who o:::c-c..py business prem:ses, and to enable tenants obtain new tenancies and to pr::)Vide for matters connected therew:.-::.h. Xpress Fooc: Li::iited among the reliefs that it seeks, claims a declaratior:. that it is a protected tenant and that the ?Urported notice to terr:i.inate the tenancy was illegal. 10. 1 J Section 4 of the Landlord and Tenant (Business Premises Act) provides that: "4. (1) A tenancy to which this Act applies shall not come to an end unless terminated in accordance with the provisions of this Act; and, subject to the provisions of section ten, the tenant under such a tenancy may apply to the Court for a new tenancy-..... " 10. 1 1 In Section 5, the Act stipulates how a notice to terminate :nay ::,e mace. In the statement of claim, Xpress Food Li:nited avers that it executed a lease for a period of Ten '. 1 J) years ·w-ith Hua Jiang Investments Lir:i.ited and KJ iU9 Properties Lmited on 11 th June, 2022, which was renewable for another Ten (10) years. Eowever, prior tc that, :.: had been in occupation of the premises for over Five (S:1 years, and had erected various struc::ures at the premises and operated the same as a rest2..urant. 10.1'.2 T:ien on 22r:.d November, 2022 a notice to t erminate the tenancy was issued, which did not give valid reasons for the termination, and a final notice to terminate was issuec. on 31 st Januc..ry, 2023. 10.13 It is dear that the ma:..n claims in this matter, relate to the vajdity of the notice to terminate the lease . In the case of Lily Drake v M. B. L. Jl,fahtani and Professional Services Limited f4 J tr:.e respondents obtair:ed from the High Court, an order for possession of a flat le: to the appellar:t on the grounds that the premises were re~uired ty tr:.e landlord for ocsupation by the landlord's employees u::-:ider s.13 (l)(e) of the Ren:: Act. 10. : .. -4 At t:ie tric.l, the Managing Director of the second ::--espondent, who was proved to be the owner of the :;:>r~mises, ga,--e evidence that the premises were required fo:- ocsupation by unspecified err:ployees of unspecified companies w:iich were members of a g::--oup of companies to which :he second respondent belongec.. There was no evidence tha: the premises were requirec. for an employee :Jr em:;:>loyees of the second respondent coo.pany itself. 10.15 The action was commenced by a Writ of Summons for pcssession 3-""ld was a::--gued on be:ialf of the tenant that it st.ould have been commenced by originating notice cf R20 mction . It was also argued that the notice to quit was in\-alid ·:Jecause it did not specify the reason why the lar:dlcrd r equired possession. 10.16 It was h eld in that matter that: (i) Applications to the Court for possession of premises which were subject of the Rent Act must be by originating summons; but it has always been the practice of the Courts to allow amendment of proceedings which have been incorrectly commenced so long as no injustice is n done to the parties; (ii)A notice to quit by landlord requiring possession for the reasons set out in s.13 (1) (e) of the Rent Act need not set out such reasons; (iii)Where premises are required by a landlord for occupation by an employee such employee must be employed by that particular landlord; there must be complete identity between the employer and the landlord; (iv) The true purpose of the Rent Act is to protect tenants, and, even when landlord provides proof that his case comes within the provisions of s.13 (1) (e), it is still incumbent upon him to prove that the premises are reasonably so required." 10.17 Ir:. tt.e case of Appollo Refrigeration Services Co. Ltd v Farmers Housef3J, a landlord of business premis es , comrr:enced a n action to r ecover possession by Originating R21 Nctice of Motion . The Supreme Court 1n that matter, held that: ''(i) An Originating Notice of ~lotion was not the proper process for a landlord's claim for possession of business premises since all the applications which can be made by an Originating Notice of Motion under the Landlord and Tenant (Business Premises) Act are specified in the various sections. A Landlord's action for possession was not so specified and should therefore be commenced by writ in accordance with Order 6 of the High Court Rules;" 10. ~8 It can be s e-en in that in the case of Lily Drake v M. B. L. 1Vlahtani and Professional Services Limited(4J, the action wc..s commenced using a Writ of Summons for possession of a :lat under the Rent Act Chapter 206 of the Laws of Zambia. The Court in that matter held that as they had pointed out i:.-: the case of Appollo Refrigeration Services Limited v Farmers House Limited!3J, none of the a:r:plications mentioned in the Landlord and Tenant (Business Premises) Act which were similar to the Rent Act, provides for an application for possession. Ccnsequently: a claim for possession of "jusiness premises m -ist be com:nenced by writ. 10. ::_ 9 I:-i this ma: ter, the claim 1s not for possession of a pr"Jperty. Ra:her, it challenges a notice to terminate a t enancy, anc. Sections 4 and 5 of the Landlord and Tenant (Business Premises) Act provide for how a notice r R22 to terminate a tenancy under the Act sl:.all be done. The Rt:.les under the Act, in Rule 3, are clear that an application made pursuant to those Sec-:ions of the Act, must be commenced by Originating Notice of tllotion. 10.~,J T~e holding in the case of Chikuta v Chipata Rural Council r2J wa s: "Where any matter is brought to the High Court by means of an Originating Summons when it should have been commenced by writ, the Court has no jurisdiction to make any declarations." 10.21 T":-ierefore, in this matter, the Land~ord and Tenant (E-u.siness Premises) Act providing that matters relating to nctices to terminate leases being commenced bv O::-iginating ~otice of Motion, entails that this matter should ordir:.arily have been commenced by Originating Nc-tice of Mot:..on. 10. 22 Eowever, I :lo note that there is a further claim in the alternative, :or payment of the market value of the developments that were made to the prope:ty. This is a rejef that cannot be claimed under Sections 4 and 5 of the Landlord and Tenant (Business Premises) Act. Such :-ejef can only be claimed in proceedings that are commenced by Writ of Summons. Therefo:-e, the holding in -::te case of Corpus Legal Practitioners v Mwanandani Holdings Limited SCZ No 50 of 2014 applies. 10 .23 It conseque:1.tly follows that the Writ of Summons is not incompetently before me, and I proceed to h ear the matter. T:te matter snall come up for hearing of the application for • R23 an Order of ir:junction on 27 th July, 2023 at 08: 15 hours. Costs shall be in the cause, and leave to appeal is granted. DATED AT LUSAKA THE 12th DAY OF JULY, 2023 (\