Nedson Nzowa v Chintala (Appeal 135 of 2002) [2003] ZMSC 2 (2 September 2003)

IN THE SUPREME COURT FOR ZAMBIA APPEAL No. 135/2002 HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: IN THE MATTER OF ARTICLE 65(7)(E) OF THE CONSTITUTION OF ZAMBIA AND IN THE MATTER OF SECTION 20(1)(2) OF THE ELECTORAL ACT CHAPTER 13 OF THE LAWS OF ZAMBIA AND IN THE MATTER OF THE PARLIAMENTARY ELECTIONS FOR THE KABUSHI CONSTITUENCY NDOLA IN THE COPPERBELT PROVINCE OF THE REPUBLIC OF ZAMBIA HELD ON 27 DECEMBER AND IN THE MATTER OF: NEDSON NZOWA AND PETER LUSAKA CHINTALA APPELLANT RESPONDENT CORAM: LEWANIKA, DCJ., CHIBESAICUNDA, SILOMBA JJS On 3Td December, 2002 and 2nd September, 2003. For the Appellant: (cid:9) For the Respondent: (cid:9) C. MAGUBWI of Lloyd Siame & Co. K. MSONI ofJ. B. Sakala & Co. JUDGMENT (cid:9) (cid:9) LEWANIKA, DCJ delivered the judgment of the court. This is an appeal against the decision of a Judge of the High Court refusing to grant the Appellant costs for an election petition that had been discontinued by the Respondent. The short history of this matter is that the Respondent on 31 st December, 2001 through his advocates filed an election petition contesting the outcome of a parliamentary election at the Ndola District Registry under Cause No. 2001/HN/48. This election petition was tregular in many respects. On 21S` January 2002, the Respondent filed another election petition at the Principal Registry under Cause No. 2002/HP/EP/0004. The second petition was filed whilst the one filed at the Ndola District Registry was still subsisting as it was only discontinued on lst March, 2002. Counsel for the Appellant then applied for the costs occasioned by the discontinuance and a stay of the subsequent petition in terms of Order 17 Rule 2 of the High Court Rules. This application was refused by the court below hence this appeal. We are at a loss to understand the reasoning of the Judge in the court below as a litigant who has been dragged to court in a suit which is subsequently discontinued is entitled to the costs he or she has incurred in defending the suit. Further Order 17 Rule 2 of the High Court Rules provides as follows:- Order XVII 2. (cid:9) If any subsequent suit shall be brought before payment of a discontinued suit, for the same or substantially the same cause of action, the court or a Judge may order a stay of such subsequent suit until such costs shall have been paid. For the foregoing reasons we would allow the appeal and order that the Respondent pay the Appellant his costs up to the time when the petition filed at Ndola District Registry was discontinued and we further order that the subsequent petition be stayed fill the costs have been paid. We also award the costs of the appeal to the Appellant to be taxed in default of agreement. D. M. Lewanika DEPUTY CHIEF JUSTICE L. P. Chibesalumda SUPREME COURT JUDGE S. S. Sumba SUPREME COURT JUDGE 3