Charles N.J. Murless (suing in his capacity as Executor and Trustee of the Estate of the late Fenelia Mary Wright Pestel pursuant to an order of Probate dated 16th January 2001) and Ors v Abeuty Nyendwa and Ors (2007/HPC/0275) [2021] ZMHC 118 (9 August 2021)

IN THE HIGH COURT FOR ZAMBIA AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) sue OF ZA QURTOF . YP..'9!,;.;A;,.;,Rv __ 07/HPC/0275 ERCIAL REG OX50067 \.. BETWEEN: CHARLES N. J. MURLESS (suing in his capacity as Executor and Trustee of the Estate of the late Fenelia Mary Wright Pestel pursuant to an order of Probate dated 16th January 2001) LOURIE EST A TE LIMITED (suing as registered Proprietor and beneficial owner of property known as The Remaining Extent of Farm No.313a Lusaka) 151 PLAINTIFF 2nd PLAINTIFF AND ABEUTY NYENDW A and OTHER PERSONS UNKNOWN JOSEPH NYENDW A (in his capacity as Personal Representative of Estate of the late Petro Nyendwa pursuant to an order of Probate dated 2nd August 2019) CHARLES NYENDW A (in his capacity as Personal Representative of the Estate of the late Petro Nyendwa pursuant to an order of Probate dated 2nd August 2019) 1st DEFENDANT Intending 2nd DEFENDANT Intending 3rd DEFENDANT Before Hon. Lady Justice Irene Zeko Mbewe For the 2nd Plaintiff For the 2nd & 3rd Intended Defendants: Mr. Mulungushi of Messrs Milner & Paul Legal Practitioners Mr. Mweemba of Messrs Mweemba Company RULING Rl I Page Cases referred to: l. General Nursing Council of Zambia v Mbangweta [2008} ZR 105 Legislation referred to: 1. High Court Rules, Chapter 27 of the Laws of Zambia 2. Rules of the Supreme Court of England (White Book) 1999 Edition This is the 2nd Plaintiffs application for an order for stay of proceedings (leave to appeal out of time) pending payment of costs under Cause No.2007/HPC/0275 and Cause No.2008/HPC/0072 pursuant to Order 40 rule 8 of the High Court Rules, Chapter 27 of the laws of Zambia and Order 4 rule 9 of the Rules of the Supreme Court (1999) Edition as read together with section 13 of the High Court Act, Chapter 2 7 of the laws of Zambia. The supporting affidavit is deposed to by Andrew Guy Howard a director of the 2nd Plaintiff company. According to the deponent, the Plaintiffs commenced this action by originating summons on 24th September, 2007, seeking inter alia possession of property known as the remaining extent of Farm 313a, Roma, Lusaka. On 19th December, 2007 Judgment was rendered in their favour with costs. Thereafter on 24th December, 2008 the Defendant applied for special leave to review the Judgment which application was dismissed in a Ruling of 2nd April, 2009. R2 I Page Subsequently, a similar action was brought under Cause No. 2008/HPC/0072 by Agnes Nyendwa the widow of Petro Nyendwa and other intending Defendants against the Plaintiff herein, claiming interest in the said land. This action was determined in favour of the Defendant (the Plaintiff in the present matter) on I st December, 2008 with costs to be paid by Mrs. Kapita of Mainza and Company. On 8th February, 2021 the intending Defendants' application for joinder was dismissed for being res judicata and an abuse of court process and condemned to costs for the application. However, the intended Defendants have proceeded to apply for leave to appeal out of time without paying the costs awarded to the Plaintiffs. The affiant averred that the Court has the discretion to order a stay of proceedings for leave to appeal out of time pending the payment of costs highlighted. It is revealed that the Defendants have a tendency of not responding whenever there is a demand for costs (Exhibit "ADH I"). The application is opposed by the intending 2nd and 3rd Defendants through an affidavit deposed to by the intending 2nd Defendant who contends that actions under Cause No. 2007/HPC/0275 and Cause No.2008/HP/0072 were between the Plaintiffs and the Defendant as the intending 2nd and 3rd Defendants were not parties to both actions at the time. R3 I Page The intending Defendants wish to appeal against the order for costs in the Ruling of 8th February, 2021. Furthermore, that the Plaintiffs have not demanded costs and the intending Defendants do not know the amount of costs payable. The parties filed skeleton arguments which I have taken into account and will make reference to in my Ruling. At the hearing of the 2nd Plaintiffs application on 15th June 2021 , Mr. Mulungushi Counsel for the 2nd Plaintiff relied on the supporting affidavit and skeleton arguments. Counsel submitted that the 2nd Plaintiff has clearly demonstrated their entitlement to costs as awarded in the Judgments and Rulings. Counsel contends that the said costs have never been paid and the Defendant keeps bringing actions over the same subject matter and the same family . Furthermore, that the Court should exercise its discretion and stay proceedings until all costs highlighted in the affidavit are paid to the 2nd Plaintiff. In reply, Mr. Mweemba Counsel for the intending Defendants submits that the present application should be in relation to the failed application for joinder of the 2 nd and 3rd intended Defendants. Counsel argues it is incorrect to say the intending 2nd and 3rd Defendants have brought numerous applications as they were not privy to the other R4 I Page matters and should not be implicated for simply being members of one family as each member has a right to litigate. It is Counsel's position that the 2nd Plaintiff slept on its rights as it has never demanded costs and exhibit "ADHl" relates to a totally different matter. Furthermore, that the present application is intended to prevent the intending 2nd and 3rd Defendants from exercising their statutory right to appeal and is against the interest of justice. Counsel submits that the Court in exercising its discretion should consider whether or not costs will hinder a party to a matter from taking a certain action, in this case the intending 2nd and 3rd Defendants wish to appeal against the order for costs which appeal has some semblance of merit. In response, Mr. Mulungushi reiterated that the Defendant and intending Defendants seek to litigate on issues arising from the cause of action and subject matter that was already adjudicated upon under Cause No.2007/HPC/0275. Furthermore, that the Court ordered security for costs to be paid, and despite the 2nd Plaintiff not formally demanding for costs awarded in the application for joinder, the Court can order a reasonable sum be paid to cover costs. I have carefully and thoroughly considered the affidavit for and against the application, skeleton arguments and oral submissions by Counsel for the respective parties. RS I Page The backdrop to this application has been highlighted by the averments in the supporting affidavit herein. In summation, the Plaintiffs have been awarded costs in Judgments and Rulings in actions with the Defendants over the same subject matter under Cause No.2007 /HPC/0275 and Cause No. 2008/HP/0072. I am mindful that the intended 2nd and 3rd Defendant were not a party to the previous actions hence their application for joinder which the Court dismissed on 8th February 2021 and were condemned to costs. Dissatisfied with the said Ruling, the intending 2nd and 3rd Defendant wish to appeal against it but the 2nd Plaintiff contends the appeal should be stayed pending the payment of costs. The present application is anchored on Order 40 rule 8 of the High Court Rules, chapter 27 of the laws a/Zambia which provides as follows: "Where the Court or a Judge orders costs to be paid, or security to be given for costs by any party, the Court or a Judge may, if it or he thinks fit, order all proceedings by or on behalf of that party in the same suit or proceeding, or connected therewith, to be stayed until the costs are paid or security given accordingly, but such order shall not supersede the use of any other lawful method of enforcing payment." Counsel for the 2nd Plaintiff further referred to Order 21/5/25 of the Rules of the Supreme Court (White Book) 1999 Edition, which states as follows: R6 I Pa g e "Where a second application is made for the same relief as in a previous application dismissed with costs, the application would be stayed unless and until those costs were paid or, if not quantified, a reasonable sum to cover those costs is paid into court. " I must hasten to mention that Order 21 rule 5 of the Rules the Supreme Court, 1999 Edition does not apply herein as the intended 2nd and yd Defendant were never a party to the cited causes. I shall pay scanty attention to the cited Order. It is not in dispute the intending Defendants were ordered to pay costs to the Plaintiffs and the same have not been paid. In contrast, the intending 2nd and 3rd Defendants aver they cannot be condemned to costs being non parties to the action. It is also stated that the Plaintiffs have not demanded the said costs and they do not know the amount. A perusal of the record further shows a demand for costs in relation to a matter between the 2nd Plaintiff and Maxwell Banda (Exhibit "ADHI "). I have difficulties in appreciating the importance of this piece of evidence as the 2nd Plaintiff has not demonstrated how it relates to the various orders for costs against the Defendant or intending 2nd and 3rd Defendant that have been made by this Court. I agree with the 2 nd Plaintiff that this Court wields discretionary powers to make orders for security for costs under Order 40 rule 7 High Court Rules, Cap 2 7 of the laws of Zambia and to stay proceedings pending R7 I P a ge payment of costs or furnishing of security for costs, in appropriate cases under Order 40 rule 8 High Court Rules, Cap 27 of the laws of Zambia. It is trite law that costs are awarded at the discretion of the Court. A successful party is usually granted costs and entitled to them in respect of the proceedings of which the order was made. This has been pronounced in a plethora of cases including General Nursing Council of Zambia v Mbangweta [2008] ZR 105 cited by Counsel for the intending 2nd and 3rd Defendant. In respect to an order for security for costs, it seeks to protect the party in whose favour it is made against the risk of being unable to enforce any costs order the person may obtain later. The law provides for factors to be considered by the Court when exercising its discretionary power to make an order for security for costs and the onus is on the party applying to establish the same factors. The applicant herein informed the Court that there are costs payable to the Plaintiffs and the Defendants have never paid them. Counsel for the intending 2nd and 3rd Defendant argues the Plaintiff is trying to use the order for costs as a weapon to prevent the intending 2nd and 3rd Defendants from exercising their rights to appeal against a decision of this Court. Generally speaking, Courts are slow to stay proceedings and the Court has to exercise its discretion judicially bearing in mind the circumstances of each case. The intending 2nd and 3rd Defendant have appealed the Ruling RB I Page of 8th February, 2021 and one of the grounds of appeal is the awarding of costs to the Plaintiffs. It is my view that since costs were awarded in an interlocutory application coupled with a pending appeal by the intending 2nd and 3rd Defendant, it is my duty to eliminate situations which may unnecessarily cause delay in the administration of j ustice and hinder the intended 2nd and Jrd Defendants application. In my considered view, there are no special circumstances that warrant the granting of an order for stay of proceedings of the leave to appeal out of time pending payment of costs. For the foregoing reasons, I decline to grant the Plaintiffs application. I make no order as to costs. Delivered this 9th day of August 2021 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . IRENE ZEKO MBEWE HIGH COURT JUDGE R9 I Page I