Hope Foundation for Women and Children v Munalula Linyati and Ors (APPEALS NOS. 201/2019 & 213/2019; APPEALS NOS. 201/2019 & 213/2019) [2020] ZMCA 172 (20 November 2020)

• IN THE COURT OF APPEAL OF ZAMBIA APPEALS NOS. 201/2019 & 213/2019 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN HOPE FOUNDATION FOR WOMEN AND CHILDREN APPELLANT AND MUNALULA LINYATI 1 ST RESPONDENT SEPISO SIMONDA (Suing as Administrator of the Estate of \,:; : . the late Simnnwa Simonda} , , . , 2ND RESPONDENT ATTORNEY GENERAL ~ - - - - 3RD RESPONDENT CORAM: CHISANGA JP, MULONGOTI AND SIAVWAPA, JJA On 10th and 20 th November, 2020 FOR THE APPELLANT: MR. E. B. MWANSA, SC OF MESSRS E . B . M CHAMBERS WITH MRS. D. F INDLAY OF MESSRS D. FINDLAY AND ASSOCIATES FOR THE 1 ST & 2ND RESPONDENTS: MR. M. KASAJI OF MESSRS C. L. MUNDIA & CO. FOR THE 3 RD RESPONDENT: MR. M. M. LUKWASA, DE PUTY CHIEF STATE ADVOCATE J U D G M E N T SIAVWAPA, JA, delivered the Judgment of the Court. Cases referred to: 1. 2. 3. 4. 5. Standard Chartered Bank (z) Plc v Wisdom Chanda and another SCZ Judgment No. 18 of 2014. Alan Mulemwa Kandolo v Zambia National Commercial Bank and Others Appeal No. 19 of 201 4 July Danobo T/ A Juldan Motors v Chimsoro Farms Limited (2009) Z. R.148. Zambia Revenue Authority v T and G Transport (2007) ZR 13 General Nursing Council of Zambia v Ing 'utu Milambo Mbangweta (2008) ZR2 105 Statutes referred to: I. Subordinate Courts Act Chapter 28 of the Laws of Zambia Rules I. High Court Ru les Order 47 rule 9 2. Subord inate Court Rules Order 44 rule 6 1 . INTRODUCTION This is a composite Judgement covering two a ppeals namely, Appeals No. 201 and 2 13 both of 2019. The two a ppea ls emanate from two Rulings handed down by the Honourable Mrs. Justice S. K. Newa, Judge of the High Court. One Ruling was delivered on 19 th June 20 19 w hile the other one was delivered on 9 th September 2019. Both Rulings r elated to preliminary issues raised by the Appellants in an appeal emanating from the Subordinate Court both challenging the Court's competence to hear the appeal when the Record of Appeal was incomplete with some essential components missing. J2 (a) THE 19TH JUNE 2019 RULING ISSUES The preliminary issues raised in the J une Ruling were that the Record of Appeal from the Subordinate Court was incomplete and defective as it did not contain the Magistrate's notes; that it did not contain an order for leave to appeal and to appeal out of time and that the Record contained extraneous documents from other proceedings namely pages 16 to 24. The learned Judge dismissed the prelim inary issues raised in the Ruling on account that by its J udgment of 21 st May, 2008, the Supreme Court did away with the requirement for the Appellant to obtain leave and allowed the Appellant to appeal the decision of the Magistrate. (b) THE 9TH SEPTEMBER 2019 RULING ISSUES The 9 th September Ruling was from an application for leave to appeal against the Ruling of 19Lh June 2019. The Appellants had also raised preliminary is sues asking the Court to determine whether the App e lla nt (now 1s t Respondent) had complied with Order 44 rule 3 (1) (a) and (b) and rule 5 (1) of the Subordinate Courts Act and Order 47 of the High Court Rules. J3 In the impugned Ruling the learned Judge granted leave to appeal but dismissed the preliminary issues for being res judicata. 2 . BRIEF BACKGROUND The history of these appeals is that the Appellant and the 1st and 2 nd Respondents are fighting over a house known as Plot No . 4607, Andrew Mwenya Road, Lusaka which was a Government pool house occupied by one Simonwa Simonda who died on 8 th July 1998. The 2nd Respondent was the administrator of the estate of the late Simonwa Simonda while the 1st Respondent was the occupant of the servant's quarters. In 2000, the 2 n d Respondent commenced an action in the High Court in his capacity as administrator of the estate of the late Simonwa Simonda against the then Minister of Works and Supply and the Attorney General. He made the following claims; (a) Declaratory orde r that House No. 7 Andrew Mwenya Road, Rhodes Park be sold to the Plaintiff (b) Damages for trespass, harassment and mental anguish suffered by the Plaintiff and the children of the late Simonwa Simonda by the agents and employees of the Government of the Republic of Zambia. J4 (c) Declaration that the intended eviction of the Plaintiff and the late Simonwa Simonda 's family be declared null and void, malicious and ultra-vires the 1st Defendant's demand actuated by ill motives and abuse of power of office. (d) Any other relief the Court may deem fit and appropriate and costs. By Judgment dated 28th November 2003, Mr. Justice T. K. Ndhlovu granted the claims accordingly (see page 249 of the Record of Appeal No . 213/2019). On 28th February 2006, the Appellant herein issued originating Notice of Motion against the 1s t Respondent for an order to issue a warrant of distress and eviction filed in the Subordinate Court. The affidavit in support at page 233 of the Record of Appeal, deposed to by Joseph Ingwe alleges in paragraph 4 that the 1st Respondent had been illegally occupying Plot 4607, Andrew Mwenya Road in Rhodes Park for over three years. This would be since 2003 when Mr. Justice T. K. Ndhlovu made an order to the Government to sell the property to the 2 nd Respondent as administrator of Simonwa Simonda's estate. On 10th March 2006 leave was granted to the Appellant to issue writ of possession and eviction (see page 237 Record of JS ' , Appeal). The order was however, stayed ex-parte on 17th March 2006. In a Ruling dated 6 th April 2006, which is at pages 228 and 229 of the Record of Appeal, the Subordinate Court of the 1st Class presided ove r by Mr. Richard Choonga, discharged the order of stay of the writ of possession earlier granted and ordered the execution of the orders for vacant possession and eviction granted on 10th March 2006. This order triggered an appeal to the High Court which in turn gave rise to an appeal to the Supreme Court following a procedural issue raised by the Appellant as to the requirement by the Appellant to obtain leave to appeal from the Subordinate Court. In his Ruling dated 5 th June 2006, which occurs at pages 252 to 254 of the Record of Appeal, Mr. Justice N. M. Mwanza referred to his Order of 5 th May 2006 for the Appellant to seek leave of the Subordinate Court to appeal. The learned Judge confirmed compliance by the 1st Respondent but that the Magistrate did not hear the application for leave. That prompted the 1st Respondent to apply for special leave before the High Court which was refused with the learned ]6 . ' In t h e last paragraph at p age 92 of the Record of Appeal, the Supreme Court concluded as follows; "It is for the foregoing reasons that we allowed the appeal. We set aside the Ruling of the Appellate Judge and sent the matter back to the High Court for re-hearing before a different Judge . It is our hope that all the issues highlighted and in dispute will be pronounced upon". 4. PRELIMINARY ISSUES Following the order for a re-hearing of the appeal made by the Supreme Court herein before stated; the matter was allocated to Mr. Justice C. F. R. Mchenga SC in 2012. When the matter came up for hearing, counsel for the Appellant rose on a preliminary issue questioning the regularity of the appeal before the High Court in view of non-compliance with procedure. In his ruling dated 3 r d June 2012, the learned Judge set out the issues that the Supreme Court, in its Judgment of 21 st May 2008, had ordered to be considered in the rehearing of the appeal. He refused to pronounce himself on the preliminary issues for the reason that the Supreme Court had already made a pronouncement. J8 5. APPLICATION FOR JOINDER OF PARTY Upon failure of the preliminary objection, the Appellant, on 13 th August, 2012, filed into Court, a summons for joind er of a party to the proceedings. It was accompanied by an affidavit in support deposed to by Dessislava Findlay, Counsel for the Appellant. In paragraphs 5 and 6 of her affidavit, Mrs. Findlay deposed as follows; 5 . That the matter before this Honourable Court involves land being stand No. 4607, Lusaka which land as alleged by the Appellant in his affidavit dated 21 st April 2006 was a subject of dispute between the Government of the Republic of Zambia (Ministry of Works and Supply) and Simonwa Simonda, Sephiso Simonda Administrator of the estate of the late Simonwa Simonda). A copy of the aforesaid affidavit is now produced and shown to me marked as exhibit DF 1. 6. That I verily believe that in the circumstances it is vital that the parties aforesaid namely; the Administrator of the estate of the late Simonwa Simonda and the Attorney General, both be joined to the proceedings herein, so that all matters in dispute may be determined effectually and completely without opening the door for the further litigation over the same issues and matters arising between the parties. In his very brief Ruling dated 24th January 2013, Mr. Justice Mchenga refused to grant the order after making the following statement at page 137 lines 11 to 18 of the Record of Appeal; "I have considered this application together with the contents of the affidavits filed herein together with the submissions and the authorities cited by counsel. I am satisfied that order 14 rule 5 of the High Court Rules is not applicable to this matter as this is not a trial but an appeal. Further, the appeal before me is anchored on whether the correct procedure was complied with when these proceedings were instituted in the Subordinate Court. It is my assessment that the determination of the appeal will not affect the rights or interests of the parties I have been asked to join into these proceedings. The Ruling disenchanted the Appellant who applied for leave to appeal the Ruling to the Supreme Court which was granted on 14t h February, 2013. A separate application for an order staying further proceedings in the appeal was made on 7 th March, 2013 and it was granted on 13th March 2013. J 10 6. IMPLICATION The order staying the proceedings meant that the appeal against the Ruling of the Subordinate Court made in 2006 would not be reheard as directed by the Supreme Court in its Judgment of 21 st May 2008 until this second appeal to the Supreme Court was heard and determined. 7. SECOND JUDGMENT OF THE SUPREME COURT It will be noted that in this appeal to the Supreme Court, the dispute was over the joinder of parties which was refused by the Honourable Mr. Justice Mchenga SC. The Supreme Court however, did touch on the issues that wer e the subject of contention in the first a ppeal touching on the non-compliance with procedural requirements in the manner the appeal was lodged in the High Court from the Subordinate Court. In its Judgment delivered on 17th September 2015, the Supreme Court considered the rival arguments by the parties and narrowed them to one question for its determination being; "whether the learned Judge in the Court below was right to decline the application for joinder on the grounds that he stated in his Ruling subject of the present appeal" ( see page 287 lines 9 to 12 of the Record of Appeal No. 213/2019. J 11 The Judge gave three reasons for rejecting the application for joinder name ly; 1. "I am satisfied that Order 14 rule 5 of the High Court Rules is not applicable to this matter as this is not a trial but an appeal. 2. " .... the appeal before me is anchored on whether the correct procedure was complied with when these proceedings were instituted i n the Subordinate Court" and 3. "It is my assessment that the determination of the appeal will not affect the rights or interests of the parties I have been asked to join into these proceedings." The Supreme Court came to the conclusion that the a ppeal had m e rit a nd allowed it on a ll the grounds. It accordingly ordered that the intended parties be joined to the proceedings in the lower Court. 8. RE-HEARING THE APPEAL With the order to join th e intended parties the a ppeal in the High Cou rt was ready for re-hearing in terms of th e Supreme Court Judgm ent of 21 s t May 2008. It must b e clearly pointed out th at the Supreme Court Judgment of 17 th September, 2015, d id not order a re-hearing J 12 .... .., but ordered the joinder of the 2 nd and 3 rd Respondents to the appeal in the High Court which had been stayed pending the determination of this appeal. The order for the re -hearing of the appeal is contained in the Judgment of 21 st May 2008 upon the terms and conditions it prescribed. 9 . THE APPEALS We heard the appeals one after the other for convenience since they flow from two different Rulings by the same Judge. What is common about the two appeals is that they seek to impugn the learned Judge's interpretation of the Supreme Court Judgment of 21 st May, 2008, the High Court Ruling of 8 th June, 2012 and the Supreme Court Judgment of 17th September, 2015. In the Appeal against the Ruling of 9 th September 2019, grounds 1, 2 and 5 attack the learned Judge's finding that procedural issues raised by the Appellant were the same as those raised in the Ruling of 8 th June 2012 and were therefore, res judicata contrary to the Supreme Court Judgment of 17th September 2015 . Grounds 3 and 4 question the Court's jurisdiction to hear and/or determine the appeal from the Subordinate Court J13 when procedure prescribed by Order 47 of the High Court Rules was not followed. In the appeal against the Ruling of 19th June 2019 in Appeal No. 201/2019, grounds 1, 4 and 5 all speak to the displeasure at the learned Judge's dismissal of the preliminary issues on non-compliance with procedure prescribed under Order 44 rule 6 of the Subordinate Court Rules and Order 4 7 rule 9 of the High Court Rules. Ground 2 decries the learned Judge's decision to expunge only some of the documents from the Record of Appeal and not all that were indicated by the Appellants as irrelevant. Ground 3 bemoans the Court's alleged wrong exercise of its discretion to award costs to the Respondent when the Respondent's failure to comply with procedure caused the raising of the preliminary objections. 10. ARGUMENTS Both sides filed heads of argument in both appeals with brief oral argumentations. A. APPELLANT'S ARGUMENTS The Appellant argued grounds 1 and 2 together and the gist of the arguments is that the Record of Appeal filed 13 J 14 years after the Notice of Intention to appeal was filed was so defective, in so far as it did not comply with Order 44 rule 6 of the Subordinate Court Rules and Order 47 rule 9 of the High Court Rules, that the appeal ought to be dismissed. In a nutshell, Order 44 rule 6 of the Subordinate Court Rules provides a list of the documents that must grace the Record of Appeal from the Subordinate Court and it is argued that the filed Record of Appeal does not contain the Magistrate's notes and affidavits filed in the Subordinate Court. We were referred to a number of authorities that hold that defects in the Record of Appeal ought not to be ignored and one such case is Standard Chartered Bank (z) Plc v Wisdom Chanda and another1. It was also argued that the reliance on Section 32 of the Subordinate Courts Act by the learned Judge was erroneous as the section only deals with conditions imposed by the Subordinate Court or the High Court and not the contents of the Record of Appeal. On account of the highlighted irregularities in the Record of Appeal, we have been urged to dismiss the appeal Jl5 citin g the cases of Allan Mulemwa Kandolo v Zambia National Commercial B ank and Others2 in wh ich the Su prem e Court dismissed the Ap peal on account of a none compliant Record of Appeal and July Danobo TIA Juldan Motors v Chimsoro Farms Limited3 . In that case the Supreme Court stated that "failure to compile the Record of Appeal in the prescribed manner is visited by sanctions under Rule 68 (2) of the Rules of the Supreme Court. The sanction is that the appeal be dismissed". In grounds 4 and 5 the Appellant takes issue with the lower Court's holding that leave to appeal had been dispensed with by the Supreme Court. Th e Appellant rejects that position on account of the Supreme Court Judgment in Zambia Revenue Authority v T and G Transport:4 in which it was said that leave to appeal goes to jurisdiction. It is submitted that there was no application for leave before the Supreme Court and neither did it expressly grant leave to the 1st Respondent but that even if that were the case, the 1s t Respondent should have nonetheless complied with Order 47 rule 9 of the High Court Rules as to the time within which the grounds of appeal should have been filed as well as Order 44 rule 3 J 16 (1) and (2) of the Subordinate Courts Rules which prescribes time within which an appeal ought to be filed. In ground 3, the argument is that although costs are in the discretion of the Court, the discretion ought to be exercised judiciously. It is argued that because the 1st Respondent has not complied with procedure 1n prosecuting the appeal, he ought to have borne the costs notwithstanding that Judgment was in his favour. The case of General Nursing Council of Zambia v Inq'utu Milambo Mbanqweta5 was adverted to in support of the argument. B. 1 ST AND 2ND RESPONDENT'S ARGUMENTS The Respondents herein approached the two appeals from a common position in that the Appellants had repeatedly raised the issue of the Record of Appeal from the Subordinate Court as being incomplete and the lack of an order for leave to appeal out of time. The response is that the learned Judge in the Court below dealt with the issue of the defects in the Record of Appeal when she relied on the Supreme Court Judgment of 21 st May 2008 when it granted or waived leave by ordering a re-hearing of the appeal before another Judge. In responding to issues to do with missing documents • and the notes of the Magistrate it is submitted that the learned Judge in the Court below dealt with the issue when she stated that the Record of Appeal had been certified by the Clerk of Court and further that she could hear the appeal based on the available documents. On costs, it was argued that since they are in the discretion of the Court, the learned Judge in the Court below was on firm ground to award them to the 1st Respondent. It was further submitted that the Appellant triggered the litigation by commencing an action in the Subordinate Court while there was a High Court Judgment in favour of the 1st Respondent. On the irrelevant documents not expunged from the Record, it was argued that the learned Judge expunged from the Record all the documents the Appellant had asked the Court to expunge namely pages 16 to 24 of the Record of Appeal. 11. OUR ANALYSIS AND DECISION We choose to deal with the grounds of appeal on the two appeals together and to help us to do so we shall ask the following questions; (a) Did the learned Judge in the Court below correctly interpret the Supreme Court Judgement of 21 st May 2008 with regard to the issue of leave to appeal? (b) Did the High Court Ruling of 6th June 2012 render the alleged irregularities in the Record of Appeal and non compliance with the procedure by the 1st Respondent res Judicata? (c) Did the learned Judge 1n the Court below exercise her the 1st Respondent to award costs discretion to judiciously? (d) Does the High Court have jurisdiction to hear an appeal from the Subordinate Court filed in violation of Order 44 of the Rules of the High Court? In answering the above questions, we wish to make it very clear that it is the Supreme Court Judgment of 21 st May 2008 and not the Judgment of 17th September 2015 which ordered a rehearing of the 1st Respondent's appeal from the Subordinate Court after setting aside the one paragraph Ruling of the High Court dated 29th June 2006 denying an application to review the earlier ruling of 5th June 2006. The Judgment of 17th September 2015 ordered that two parties, namely, the 2nd and the 3 rd Respondents be joined to the appeal in the Court below. J]9 .. ' Having made the aforestated point, we now examine the order for re-hearing that the 2008 Judgment of the Supreme Court made. The opening statement of the Supreme Court judgment which we have cited at page 7 makes it absolutely clear that what was to be re-heard was the appeal from the Subordinate Court. It is noted and it may be argued that since what was set aside was the short ruling of the High Court refusing to review its earlier ruling, it should follow that the order for re-hearing was for the application for review. That argument is untenable for two reasons; firstly because of the clear language in the Judgment that what was up for re hearing was the appeal against the order of the Subordinate Court. Secondly only the Judge who handed down a judgment or ruling is empowered to review it. The order of the Supreme Court in this case was that the matter goes back before a different Judge and not the Judge who made the ruling that was set aside. At the conclusion of the Judgment, the Court had this to say at page 22 of the Judgment; "However, we are compelled to observe that the proceedings before the trial Magistrate raised more • • issues than meets the eye and raise a lot of suspicion. Indeed, the proceedings before the trial Magistrate were a comedy of errors. Regrettably, the Appellate High Court Judge never appreciated the issues involved in the matter. The case raised serious issues which neither the Magistrate, if he had jurisdiction, nor the High court Judge pronounced upon." It is our considered view that the two statements by the Supreme Court provide the basis upon which the two Rulings by the learned Judge below will be tested. The Supreme Court, in its Judgment focused, not on the Judge's refusal to review his decision but on the unheard appeal from the Subordinate Court. This 1s evidenced by the Supreme Court's characterisation of the proceedings before the trial Magistrate as a comedy of errors. Equally, the Appellate High Court Judge came in for a rebuke for failing to appreciate the issues involved in the matter (appeal). At the time the 1st Respondent appealed to the Supreme Court, the only issue that had been raised by the Appellant, relating to procedure was that of leave to appeal. However, after an order for re- hearing was made by the Supreme Court the Appellants raised other preliminary objections relating to compliance with the rules of proc~dure. In other words, since ' the Supreme Court had ordered a re-hearing of the appeal, the Appellant sought ways to block the appeal from being heard. It is on that basis that in her Ruling of 19th June 2019, the learned Judge found solace in the Supreme Court Judgment of 2008. At page 307 of the Record of Appeal (213) line 20, the learned Judge below acknowledges the deficiency in the Record of Appeal in the following terms; "I do acknowledge that the record of appeal is incomplete as highlighted above ... " She was however, quick to turn to Section 32 of the Subordinate Courts Act which provides as follows; "Notwithstanding anything hereinbefore contained, the High Court may entertain any appeal from a Subordinate Court, on any terms which it thinks just." The learned Judge found that since the Clerk of. Court had certified the Record from the Subordinate Court, she held that the absence of some documents could not cause the appeal to fail because relevant documents confirming the decision of the Magistrate were on record. With regard to the inclusion of the irrelevant documents, she accordingly expunged pages 16 to 24 as requested. J22 12. THE CORRECT POSITION OF THE SUPREME COURT As earlier stated; a re-hearing was ordered. What was to be re heard is the appeal from the Subordinate Court and not the preliminary objections raised by the Appellants. The Supreme Court was more concerned with the issues raised by the 1st Respondent in the appeal to the High Court namely; the competence of the action commenced by the Appellant in the Subordinate Court after the High Court had entered Judgment in favour of the 1st Respondent. We understand the Judgement of the Supreme Court to be a directive upon the Appellate Judge in the Court below to establish the validity of the proceedings before the Subordinate Court and whether or not the Magistrate had jurisdiction at all. We believe the route the Supreme Court took was meant to deal with the root cause of the dispute surrounding the true ownership of the disputed property. In our view, dealing with the objections based on the competence or otherwise of the Record of Appeal before the High Court would be tantamount to sweeping the dirt that may have accumulated in the Subordinate Court by the action of the Appellant, under the carpet. J23 According to the Notice of Intention to Appeal which occurs at page 137 of the Record of Appeal No. 201 of 2019, the 1st Respondent, who is the Appellant in the High Court, advanced the following issues for determination; (a) That the Originating Notice of Motion was irregularly issued in respect of property stand No. 6407, Rhodes Park, Lusaka. (b) That the Court did not take into account the doctrine of res judicata when in fact this matter was decided by the superior Court, namely, the High Court. (c) Hope Foundation for Women and Children had no locus standi in the matter as it did not have any title or interest in the subject matter of the aforesaid property. (d) The Appellant was a wrong party against whom proceedings were instituted. The argument may be that at the time the 2008 appeal was heard, the other irregularities on the record had not arisen and Mr. Mwansa SC did in fact argue to that effect. He submitted that the irregularities could only be detected after the Record of Appeal was filed. Be that as it may, the re hearing order by the Supreme Court was not affected. As a matter of fact, the Supreme Court Judgment of 17th September 2015, which primarily dealt with joinder of parties, re-echoed the order of rehearing the appeal from the Subordinate Court. In that regard the Court observed as follows at page 296 lines 1 to 11 of the Record of Appeal No 213 of2019; "A reading of the issues for consideration in the appeal, from the Subordinate Court to the High Court, makes it plain to us that the appeal was not merely anchored on whether or not the correct procedure was complied with when these proceedings were instituted in the Subordinate Court. (Underlining for emphasis) They clearly went beyond that. In addition to determining the overarching procedural quotation whether the pre-conditions for appealing from the Subordinate Court to the High Court were complied with, the lower Court is expected to deal with the substantive issues raised in the Notice of Appeal such as who had an interest in the subject property, nature of that interest and who could maintain an action. In the above comment, the Supreme Court was alive to its earlier order for a re-hearing of the appeal from the J25 Subordinate Court and the issues for determination in the appeal. It however, brought in the issue of compliance with procedure in the appeal from the Subordinate Court to the High Court. But the substantive issues for determination are those in the Notice of appeal relating to who had interest in the property, the nature of the interest and locus standi. In our view, the learned Judge dealt with the overarching issues relating to compliance with the procedure in the appeal from the Subordinate Court to the High Court in the two Rulings subject of this appeal. What remains to be determined are the substantive issues raised in the appeal to the High Court. 13. RES JUDICATA In her Ruling of 19th September 2019, the learned Judge held that issues to do with the jurisdiction of the High Court to deal with the appeal from the Subordinate Court which was fraught with many irregularities had already been dealt with by Mr. Justice Mchenga in his Ruling of 8 th June 2012. She held that since the said Ruling had not been appealed against the issues were res judicata. To impugn the learned Judge's holding, Mr. Mwansa SC, argued on behalf of the Appellant that the Judgment of 17th J26 I September 2015 which was su . of the overarching p bsequent to Judge Mcheng a's rocedura . . h d ordered the hearing Ruling, a . issues dealt with that statemen in addition to the su bstantive issues. . We have already t by the supreme , Court and we accept that position. W also gave our view on . that statement w en we s . h aid that the . h e learned Judge did e Rulings. We therefore' accep . d al with those issues of procedure 1n er . . t that they were not res-Jud1cata in relation to . e th H'gh Court Ruling of 8th June 2012 then ~hich appears at page 93 of the Record of Appeal No. 213 of 2019. 14. COSTS There is no dispute that costs are in the discretion of the Court even as they follow the event except in special circumstances where a successful party is the one ordered to bear costs. The argument that the 1st Respondent is responsible for the preliminaries that have rocked this matter is untenable. 15. CONCLUSION In the view we have taken, we are satisfied that the two appeals are devoid of merit. The order by the Supreme Court in its Judgment of 21 st May 2008 is very clear. It granted the High Court the authority to rehear the appeal from the Subordinate Court. The Supreme Court Judgment of 17th September 2015 re enforced that order but added the aspect of determining the overarching procedural issues relating to the appeal from the Subordinate Court to the High Court. We are satisfied that the learned Judge dealt with the procedural issues namely (i) by stating that by ordering a re hearing the Supreme Court had constructively granted leave (ii) That the certificate issued by the Clerk of Court satisfied the requirements of the law (iii) That there was sufficient material pointing to what the Magistrate did and upon which the appeal can be heard. We also need to underline the importance of taking all litigation to finality. This matter has been in the Courts since 2000. It has been handled by two Magistrates, five High Court Judges; it has been to the Supreme Court twice and before us twice. This record is probably unprecedented and it is bad for efficiency and litigant confidence in the administration of justice. It is for the above reasons that we direct that the order J28 of the Supreme Court judgment of 21 st may 2008 be implemented without undue delay. We accordingly dismiss both appeals with costs and remit the Record back to the High Court for the hearing of the substantive appeal from the Subordinate Court. ········:············~·················· F. M. CHISANGA JUDGE PRESIDENT J. Z. M NGOTI COURT OF APPEAL JUDGE M. J. SIAVWAPA COURT OF APPEAL JUDGE J29