Kelvin Mutale Sampa v Sahele Sengulo (CAZ/08/524/2022) [2022] ZMCA 155 (29 December 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (CIVIL mRISDICTION) CAZ/08/524/2022 BETWEEN: KELVIN MUTALE SAMPA AND Rt. _, , 2 8 JUN 2023 ~ -, ppellant ~ / I"/ $1'-<Y :c-- SALEHE MBARUKU SENGULO MBARUKU TRADING LIMITED 1st Respondent 2nd Respondent Coram: N. A. Sharpe-Phiri, JA on 28 June 2023 For the Appellant: For the Respondents: Mrs. N. Sinkala Silishebo of Wills Clement and Partners and Mr. A. M. Musoka ofNhari Advocates Ms. M. Songiso of ZS Legal Practitioners RULING Legislation referred to: 1. The Court of Appeal Rules, Act No. 7 o/2016 2. The Supreme Court Practice (White Book) 1999 Edition. Cases to: 1. Isaac Lungu v Mbewe Kalikeka, SCZ Appeal No. 114/2013 Rl This is a ruling on an application brought by the Respondents for an order of payment of security for costs and stay of proceedings pending determination of the application for security for costs and payment of security for costs. It was made pursuant to Order X Rule 8(1) of the Court of Appeal Rules. The summons were supported by an affidavit and skeleton arguments all filed on the 31 May 2023. It was disclosed in the affidavit in support deposed to by the 1st Respondent, a Director in the 2nd Respondent that the Appellant launched an appeal on 1 December 2022 against a decision High Court dated 24 November 2022 which awarded costs to the Respondents. That additionally, the Respondents were awarded further costs upon the Appellant unsuccessfully attempting to obtain an order of stay of execution of the High ·court Judgment dated 24 November 2022 by both the Court below and the singe Judge of this Court in Rulings dated 21 December and 28 December 2022 respectively. Following this, the Respondent had issued a demand letter to the Appellant through his Advocates on 8 December 2022 proposing costs in the sum of K600,000 which demand letter has not been responded to. It was also deposed that the Appellant has also ignored the costs he was condemned to pay on the subsequent applications for stay mentioned above, but instead proceeded to launch the appeal herein. R2 It was contended that it would only be fair and just that the Appellant be ordered to pay Security for Costs into Court in the sum of Kl,500,000.00. The Respondents added that there exists a future possibility of the Appellant being condemned to future costs should he be unsuccessful with the appeal herein while the 3 costs remain unsettled. The Respondent also advanced that the Appellant's business premises were unknown, thereby making it extremely difficult for the Respondents to pursue their costs already awarded and those that are likely to arise should the appeal herein fail. It was the deponent' s conclusion that this Court has jurisdiction and discretion to order payment of security for costs into Court and stay and stay further proceedings pending determination and payment for security for past awarded costs and those of this Court, should this Court eventually order as such. The Appellant filed an affidavit opposing the application on 13 June 2023. He deposed that the Respondents ' application was strange and unclear and difficult to discern what was being sought. He contended further that his understanding was that the Respondent was seeking to recover costs awarded to them and potential future costs in the sum pegged at K 1,500,000.00, the same to be paid into Court to achieve the "security for costs". The Appellant contended that the Respondents have not met the threshold required for such an application and hoped that the application could be dismissed as it was his belief that it was not tenable at law. R3 The Appellant further stated that all orders which awarded costs to the Respondent clearly stated that the costs were to be "taxed in default of agreement" and only then can they be ascertained and be recoverable by any mean available at law. He added that all parties were in agreement that there is no agreement yet on the quantum of payment of costs and the procedure available to the Respondent in this regard is to have the said costs taxed. He went on to contend that this Court cannot be used for the purpose of taxing the said costs or recovery of the same if they have faced difficulties with him on reaching an agreement regarding the same. He also added that this Court equally has no jurisdiction to assign an arbitrary figure to future or anticipated costs by wholesomely ordering payment of any such figures into Court. The Appellant went on to add that the quantum of security for costs required of the Appellant to pay upon appeal is well defined in the Rules of this Court as shown in the Second Schedule thereto. He stated upon filing the appeal herein, he complied with the necessary provisions regarding the payment of security for costs. He contended that the Respondents' application before this Court is unjustified at law and devoid of merit. He further deposed that to demonstrate his ability to pay costs, either upon agreement or upon taxation, he had made a substantial payment into Court below of an amount to the judgment sum being Kl,118,204.00, to be paid out, subject to this appeal. He insisted that he was of fixed abode to which the Respondents are well aware of as they have previously executed the said judgment on his residential and business addresses before. R4 He contended that the Respondent's assertion that the do not know his residential and business premises is in bad faith, untrue and misleading, adding that his address has been fully disclosed in the several affidavits he has filed before Court. The Appellant clarified thaVf ~•only confirmed demand for costs <~ "j) which have not yet been ascertained is the demand for costs proposed to be in the sum of K600,000.00. In response, the Respondents filed an affidavit in reply on 19 June 2023, deposed to by the l51 Respondent. The Respondent refuted the Appellant's assertion that the application before Court is both strange and unclear, the Respondent contended that both the Supreme Court and this Court have entertained similar applications as this one before. They also contended that the application is also tenable at law contrary to the Appellant's assertion that it is not. The Respondents further contended that the application before Court had met the prerequisite threshold, namely, that the Court already pronounced in its Ruling declining the application for stay that the appeal had dim prospects of success; that the only money realized from execution of the lower Court judgment by the Sheriffs office is the sum of Kl25,639.00 out of which K102,639.00 was paid into Court for the Respondents after execution costs; and that despite the Appellant paying into Court below a sum ofKl,118,204.00 being towards judgment sum, the Respondent will still not be able to realise their costs as the sheriffs have already exhausted the said route regarding the judgment sum. RS The Respondents deposed that they will not disregard the Rules of Court regarding taxation of costs in the Court below, they accordingly exhibited a draft bill of costs in that regard. It was deposed that their contention was merely meant to avoid an academic exercise in execution of the ascertained amounts to be paid by the Appellant. The Respondent deposed further that the Rules of this Court empowers this Court to order security or further security for costs to be given at any time either upon application or of its own motion. It was contended that the K600.00 provided for in the Rules of the Court as being the default amount in security for costs is unfair, unjust and unreasonable in relation to the costs the Respondents have incurred and those it may incur in future. It was also contended that the sum K 1,118,204.00 paid into the lower Court as part of judgment sum was not inclusive of the interest due under the said sum adding that the Appellant has made it difficult for the Respondents to enjoy the fruits of their judgment by including conditions not supported by the law regarding the withdrawal of the payment he made into Court, being that the money should only be withdrawn from Court upon disposal of the appeal herein. That by the Appellant's aforestated conduct, this Court is invited to take into t account the same in determining whether or not the Appellant will pay the Respondent's costs when ordered to pay. The Respondent clarified that it was not misleading the Court when it stated that it does not know the premises where the Appellant conducts his business as it had already executed and exhausted the Appellant's residence through a Sheriffs execution aforesaid. R6 I have carefully reviewed the affidavit evidence and skeleton arguments of both side of the application in casu. The matter was heard on 26 June 2023, the parties appeared through their respective Advocates on record. The Advocates largely relied on the documents filed before Court. The starting point in determining this application is reference to Order X Rule 8(1) of the Court of Appeal Rules pursuant to which the Respondent has brought this application. The provision provides as below: The Court may at any time, upon application or on its own motion, order security or further security for costs to be given, and may order security to be given for the payment of past costs relating to the matters in question in the appeal, and may make compliance with that order a condition precedent to the entertainment of an appeal. The aforesaid prov1s1on merely imputes discretion on the Court to order security or further security for costs, including past costs relating to matters in question in the appeal, to be given but the provision does not prescribe the instances or circumstance that would elicit invocation of such discretion. In addition to providing for such discretion, the aforesaid provision further provides that such an order may be given as a condition precedent to the entertainment of an appeal. R7 That having been said, there are plethora of applications of this nature that have been heard and determined in our jurisdiction and a review of some past decisions will provide insight on the merit or otherwise of the application before me. The Supreme Court gave guidance in the case of Isaac Lungu v Mbewe Kalikeka where it propounded that a court has discretion in determining whether to make an order for security for costs. It guided that a Court must carefully: "(i) Consider the effect of making such an order, and in the light thereof to determine to what extent or for what amount a plaintiff (or the defendant as the case may be), may be ordered to provide security for costs (see: paragraph 23/3/3 RSC 1999); (ii) look into the prospects of success, but must be careful not to delve into merits at this stage; (iii) consider the possibility or probability that the appellant will be deterred from pursuing his appeal by an order for security for costs to avoid stifling litigation; (iv) both parties' conduct in the proceedings." · Furthermore, the White Book provide specific circumstances for consideration on whether or not to grant an application for an order for security for costs. R8 Rule 1 of Order 23 RSC provides as follows: 'Where, on the application of a defendant to an action or other proceedings in the High Court, it appears to the Court - ( a) that the plaintiff is ordinarily resident out of the jurisdiction, or (b) that the plaintiff (not being a plaintiff who is suing in a representative capacity) is a nominal plaintiff who is suing for the benefit of some other person and that there is reason to believe that he will be unable to pay the costs of the defendant if ordered to do so, or (c) subject to paragraph (2) that the plaintiffs address is not stated in the writ or other originating process or is incorrectly stated therein, or (d) that the plaintiff has changed his address during the course of the proceedings with a view to evading the consequences of the litigation, then if, having regard to all the circumstances of the case, the Court thinks it just to do so, it may order the plaintiff to give such security for the defendant's costs of the action or other proceeding as it thinks just. Given the foregoing authorities, it is difficult to find merit in the Respondents' application as none of the circumstances envisaged under the law have been proven. R9 ' . ' Particularly, there is undisputed evidence that the Appellant is domiciled within this jurisdiction whose residential address is known by the Respondents, he has not changed or attempted to change address with a view to evading consequences of litigation, and he is acting and prosecuting this action in his name for an on behalf of himself. Clearly there is no basis at law to justify the Respondent's application. Further, taking a leaf from the guidance of the Supreme Court above, Courts must be wary of the possibility of using the order for security for costs to stifle litigation and deter appellant from pursuing their appeals through such technicalities. I am alive to the fact that the Appellant has a traceable address and has already paid a colossal amount into Court below towards the judgment debt. It would be unwarranted at this point to require him to make further payments into Court as a precondition to determination of the appeal before this Court, especially in view of my earlier view. For the aforesaid reasons, the application for security for cots and stay of proceedings is dismissed accordingly for lack of merit. Costs to the Appellant, to be agreed by the parties and in default to be taxed. Dated at Lusaka this 28 June 2023. ~ rp e -Ph i r r COURT OF APPEAL JUDGE R 10