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Chinyanta & Others v Alasia Building Construction LTD & Another (Appeal 158 of 2015)  ZMSC 338 (12 June 2018);
Landlord and Tenant – termination of tenancy – how tenancy may be terminated
Contract of sale of land – property subject of sale being occupied by seller’s tenants – rights acquired by purchaser
Civil procedure – Order 113 of the White Book – squatters – who may be considered a squatter
Civil procedure – Order 113 of the White Book – summary procedure – when procedure is applicable
Civil procedure – Order 113 of the White Bok – what claims may be made under this Order
This is an appeal against a judgment of the High Court granting the 1st Respondent possession of Subdivision “B” of Stand 401a Lusaka which it purchased from the 2nd Respondent in 2013. By a written contract of sale made sometime in 2013, the 2nd Respondent offered to sale to the 1st Respondent, Subdivision “B” of Stand 401a. Clause 15 of the special conditions allowed the vendor to continue being in occupation of the houses situated on the subject property free of rent until 31 December 2014. The 1st Respondent obtained a certificate of title relating to the property on 17 February 2014. At the time of the sale of the property, the Appellants occupied the houses situated on the subject property as tenants of the 2nd Respondent. Tenancy agreements were entered into with all the tenants annually. The tenants included employees and ex-employees of the 2nd Respondent while others had no employment connection with the 2nd Respondent. Prior to 2010, the tenancy agreements contained a clause which gave the Appellants a right of first refusal to buy the houses they occupied in the event that the 2nd Respondent wished to sell the property. However, there was no similar clause in the tenancies signed from 2010. Following the sale of the property, the 2nd Respondent issued notices to vacate to the Appellants, indicating that the lease agreements for 2013 would not be renewed in 2014 because the property had been sold. The 1st Respondent never served the Appellants with notices to terminate or notices to vacate after purchasing the property.
The Appellants declined to vacate the property after 31 December 2014 on the basis that they were entitled to the right of first refusal to purchase the houses. They claimed that the clause on right of first refusal was unilaterally removed by the 2nd Respondent and that they had accrued rights to buy the houses. They also averred that they were protected tenants under the Rent Act, Chapter 206 of the Laws of Zambia and that the notices of termination issued by the 2nd Respondent did not meet the requirements of the Rent Act. The Appellants further cited numerous irregularities concerning the manner the action was commenced by the 1st Respondent under Order 113 of the White Book. That the Appellants were not trespassers or squatters and therefore, Order 113 did not apply to them, meaning the proceedings were a nullity and ought to have been brought under the Rent Act. The Judge found that there had never been a landlord and tenant relationship between the 1st Respondent and the Appellants and absent such relationship, there was no impropriety on the part of the 1st Respondent in commencing the action under Order 113 rule 1 of the White Book. The Judge further found that the Appellants were given first, three months’ notice to vacate the houses and a further six months’ notice to vacate. As a result, the Judge dismissed the contention that the Appellants were not given notices terminating their tenancies by the 1st Respondent. The Judge also found the argument that the Appellants had accrued rights to buy the houses untenable. The Appellants appealed.
1. A tenancy may be terminated by either the landlord or the tenant and the party who intends to terminate the tenancy must serve a valid notice on the other party. However, where a tenancy that was entered into for a fixed period comes to an end, a notice of termination does not have to be issued. The tenancy is determined by the effluxion of time.
2. The landlord can give the tenant a notice to vacate at the end of a fixed term but a tenant has a right to challenge a notice to vacate if it is not given properly or if he disagrees with the reason given. Because a tenant receives a notice to vacate does not necessarily mean that he has to move out. If the landlord wants to evict him, they must apply to court for the grant of a possession order under the Rent Act.
3. Two things could have happened. First the Appellants might have been given notices to terminate before the property was sold. If that is what happened, then the tenancy agreements terminated on the dates indicated in the notices and the Appellants should have yielded up possession. The other thing that could have happened is that the tenancies expired by the effluxion of time. The notices to vacate given by the 2nd Respondent on 21 May 2014 referred to a letter dated 24 January 2014 wherein, the Appellants were advised of the expiry of the tenancy agreements for 2013 and that the same would not be renewed in 2014 because the property was sold. This means the 1st Respondent ought to have known about the tenancy agreements prior to finalising the transaction given that the Appellants were in occupation of the houses. The 1st Respondent will have bought the property subject to the rights of the Appellants as tenants and the title it acquired as purchaser will have been subject to the rights (if any), of the Appellants as tenants (Mwenya and Randee v Kapinga(1998) ZR 12 followed).
4. The 1st Respondent would have become the landlord and if it wanted to gain possession of the property before expiry of the tenancy agreements, it ought to have given termination or eviction notices to the Appellants but if the tenancies expired naturally, there would have been no need for the 1st Respondent to give notices to terminate or to vacate. Either way, the tenancy agreements terminated. However, because of clause 15 of the special conditions in the contract of sale which allowed the 2nd Respondent to continue being in occupation of the houses situated on the subject property free of rent until 31 December 2014, the Appellants remained in occupation of the houses with the licence or consent of the Respondents. During that period the Appellants could not be considered as trespassers or squatters.
5. The summary procedure under Order 113 can only be suitable for squatters and others without any genuine claim of right or who have since been transformed into squatters (Liamond Choka v Ivor Chilufya (2002) ZR 33 followed).
6. The procedure in Order 113 rule 1 applies only to the category of people prescribed in the rule. The first category is that of people who have entered into occupation of the property without the licence or consent of the person entitled to occupation or his predecessor in title. The second category applies to people who have entered into occupation with the licence or consent of the person entitled to occupation but have remained in such occupation,
without the licence or consent of the person entitled to possession or his predecessor in title.
7. As explained at paragraph 113/8/2 of the White Book, the court has no discretion to prevent the use of the summary procedure where the circumstances are such as to bring them within its terms, eg against a person who has held over after his licence to occupy has terminated, although the order will not apply before the licence has expired.
8. A landlord is entitled to use the summary proceedings under Order 113 if he can demonstrate his right to do so, and the court has no discretion to deny such use merely on the grounds that the proceedings are rapid and summary and that the defendants did not enter as squatters (Greater London Council v Jenkins  1 WLR 155 followed).
9. The Appellants continued in occupation by licence or consent of the Respondents only up to 31 December 2014. Thereafter, they remained in occupation without the consent or licence of either of the Respondents. The 1st Respondent had established its right to the property as registered owner. The Appellants failed to establish any legal or equitable interest in the property. They became trespassers and it is irrelevant that the 1st Respondent did not issue notices to vacate after it acquired the property.
10. The only claim that can be made in proceedings under Order 113 of the White Book is for the recovery of possession of land and no other cause of action can be joined with such a claim, and no other relief or remedy can be claimed in such proceedings. However, if on the hearing of the summons, it appears that the claim of the plaintiff is not within the ambit of Order 113 or the claims for relief or remedy have been joined with the claim for possession of land which could not or ought not to have been so joined or that for some other reason the proceedings are irregular, the Court may dismiss the summons or give leave to amend to correct any irregularity on such terms as it thinks fit.
11. There was no serious dispute as to the title of the 1st Respondent to the subject property to bar the latter from commencing proceedings under Order 113 and it could not have been apparent that the matter would raise serious contentious issues for determination for the Court to dismiss the summons or make an order that the matter was to proceed as if begun by writ.
12. In terms of Order 2 rule 1 of the White Book, if in the beginning or purporting to begin any proceedings there has, by reason of anything done or left undone, been a failure to comply with the requirements of the rules, whether in respect of time, place, manner, form or content or in any respect, such failure is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.
13. Under Order 2 rule 2 of the White Book the Court may, on the ground that there has been such failure and on such terms as to costs or as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order. However, the application must be within reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity.
14. The Appellants never applied under Order 2 rule 2 to set aside the proceedings for irregularity despite the many irregularities raised most of which did not touch on the issue of jurisdiction. Instead, the Appellants filed affidavits in opposition to the originating summons and attended the hearing of the proceedings and then filed detailed submissions pointing out the alleged irregularities. The Appellants had waived their right to object when they took fresh steps in the action after becoming aware of the irregularities.