HIGH Court judge Mwaka Mikalile has thrown out the matter in which Robust Trailers and Bodies Limited sued Professor Nkandu Luo as the chairperson for Tasintha Programme Board for seizing its property over rental arrears amounting to K113,700.
Judge Mikalile said the proceedings are a nullity for being wrongly commenced.
She also dismissed the injunction she granted restraining Prof Luo from selling property belonging to the plaintiff to recover rental arrears.
Robust Trailers was seeking an order for the stay of sale of goods seized in distress pending arbitration.
In an affidavit in support of originating notice of motion, Christmas Ngoma, managing director at Robust Trailers, said on December 1, 2011 the company and Prof Luo entered into a lease agreement in relation to stand No. 1638/2716 Malambo Road, Lusaka at an agreed rent of K15,000 per month, payable three months in advance for a period of five years.
Ngoma said on October 14, 2020, Prof Luo wrote a letter indicating that Tasintha was signing up new tenant’s agreement and frustrated the lease agreement.
He said sometime in November 2020, the workshop was flooded because part of the roof was ripped and was not fixed by Prof Luo despite being aware.
“An intimation was made to Prof Luo that the premises were not ideal for the company’s business operation and amenable to the exorbitant increase in monthly rent of K25,000 from K15,000,” Ngoma stated.
Tasintha Programme board manager Eric Ngoma asked the court to dismiss the matter, stating that the court had no jurisdiction to adjudicate on a dispute relating to the lease agreement because it provided that any dispute, controversy or claim arising out of the same shall be settled through arbitration.
In an affidavit in support of summons to set aside originating notice of motion and dismiss action for want of jurisdiction, Ngoma said clause 4 (f) of the lease agreement provided that any dispute, controversy or claim arising out of or in connection with the lease shall, unless it is settled by direct negotiation, be settled by arbitration in accordance with the arbitration Act and the Arbitration Rules of the United Nations Commission of International Trade Law (UNCITRAL).
He said the clause stated that the parties would be bound by any arbitration award to be rendered as the final adjudication process of any dispute.
“A dispute has arisen between the parties resulting from the non-payment of rentals due to the respondent from the applicant, which resulted in the respondent levying distress against the assets of the applicant,” Ngoma said. “The applicant has power to commence the arbitral proceedings as required by the lease but instead attempted to get the dispute settled through the court process issued herein following the mediation order by this court.”
Ngoma added that the action ought to be limited to the applicant seeking an interim measure of protection from the high court pending arbitral proceedings as the court had no jurisdiction to adjudicate on the dispute relating to the lease agreement.
In her ruling, judge Mikalile said the provisions of section 11 of the arbitration Act No.19 of 2000 guided on the reliefs one might seek from court pending or during arbitral proceedings.
She said rule 9 of the arbitration rules 2001 provided the mode to be used in seeking such a relief by way of originating summons.
“The mode of commencement by Robust Trailers was not open to them,” she ruled.
Judge Mikalile said she had no jurisdiction to hear a matter which was wrongly commenced as any decision made by her would amount to nothing.
“Having found that I have no jurisdiction to proceed on this matter, I find it redundant to delve into other aspects raised but just to note on the issue of this court referring this matter to mediation that this court did not impose the order of mediation. It took into account the urgency of the application sought as well as the fact that the opposing side was not ready to proceed and suggested mediation,” judge Mikalile said. “Counsel for both sides as officers of court should not have agreed to the mediation but ought to have brought to the attention of court or reminded court that there was in existence an arbitration clause and as such that route could not be taken.”
She however advised that Robust Trailers’ situation was not hopeless as it could properly commence a fresh action as the matter had not been adjudicated upon or determined on its merit.
“This action is hereby dismissed for being improperly before me. It follows that the order referring this matter to mediation cannot stand and neither can the ex-parte order of injunction granted on October 2, 2021 is accordingly discharged,” said judge Mikalile.