Ernest Chikumbi (T/A E.R.C. Investments) v Ndola City Council (Appeal No. 207/2003) [2004] ZMSC 136 (7 September 2004)

IN THE SUPREME COURT FOR ZAMBIA APPEAL NO. 207 /2003 HOLDEN AT NDOLA. (CIVIL JURISDICTION] BETWEEN: ERNEST CHIKUMBI APPELANT (T / A E. R. C. INVESTMENTS) AND NDOLA CITY COUNCIL RESPONDENT Coram: Lewanika, DCJ, Mambilima and Silomba, JJS On the 4 th June and 7 th September, 2004. For the Appellant - No Appearance For the Respondent No Appearance JUDGMENT Mambilima JS delivered the Judgment of the Court. At the hearing of this appeal, on the 1st of June 2004, there was no appearance by Counsel on behalf of both the Appellant and the Respondent. As the learned Counsel for the Appellant had filed his written heads of argument, we decided to proceed with the appeal. The Appellant has appealed to this Court against the Ruling of the Court below, in which after finding in favour of the Appellant, in his application for an Order restraining the Respondent from trespassing or in any manner impeding the erection of a building on stand number 4490 Ndola, the Court ordered that each party should bear its own costs. Mr. Gershom Mubanga, on behalf of the Appellant, has argued one ground of appeal in his heads of argument; which is that the Court below erred when it failed to award costs to the Appellant, as this amounted to a serious departure from the well established principle of law that costs follow the event. While accepting that the award of costs in litigation was in the discretion of the Court, Mr. Mubanga submitted, relying on various authorities, that a successful party who does not misconduct himself will have his costs unless the case raises a point of law or a matter of novel legal importance. He argued that based on the record and the authorities cited, the learned Judge in the Court below did not exercise his discretion correctly when he did not award costs to the Appellant. We have considered the submissions by Mr. Mubanga on behalf of the Appellant. The Appellant is appealing against the portion of the decision given by the Court on 14th November 2003, directing that each party should bear its own costs. Although the Notice of Appeal indicates that what is appealed against is a Judgment of Hon. Mr. Justice Wanki, the decision complained of is in fact a Ruling given in Chambers and not a Judgment. Section 24(1) (d) (e) of the Supreme Court Act, Cap. 25 of the Laws of Zambia provides inter alia: "24 (1) No appeal shall lie - (d) .. from an Order as to costs only which by law is left to the discretion of the Court without leave of the Court ... (eJ from an Order made in Chambers by a Judge of the High Court ... without leave of the Judge or, if that has been refused, without leave of a Judge of the Court, .. " As stated above, the only ground of appeal in this case relates to the portion of the Ruling which relates to costs. The Ruling was made in Chambers. It was therefore necessary to obtain leave of the Court before filing the appeal. The Appellant filed a supplementary Record of Appeal on 21 st May 2004, containing an Order granting leave to the Appellant to appeal to this Court, against the portion of the Ruling which relates to costs dated 18th March 2004. The Notice of Appeal in this case was filed on 21 sl November 2003. As at the time of filing the appeal, no leave had been obtained to lodge the appeal. As at that time, the appeal was incompetent. The obtaining of leave to appeal ex-post facto cannot cure the incompetence. For these reasons, we refuse to entertain this appeal. D. M. Lewanika DEPUTY CHIEF JUSTICE I. C. Mambilima SUPREME COURT JUSTICE S. S. Silomba SUPREME COURT JUSTICE 4