Robinson Chanda v Mrs Kayanda and Ors (APPEAL NO. 50/2019) [2020] ZMCA 192 (30 January 2020)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 50/2019 HOLDEN AT LUSAKA (Civil jurisdiction) BETWEEN: ROBINSON CHANDA AND MRS. KAYANDA STEPHEN LUDAKA MRS KAIRA APPELLANT lST RESPONDENT 2ND RESPONDENT 3RD RESPONDENT CORAM: KONDOLO SC, MAKUNGU AND SIAVWAPA, JJA On 22nd January, 2020 and 30th January, 2020 For the Appellant : Mr. L Mwanabo of Messrs LM Chambers For the Respondent : Mr. Mulungushi of Messrs Milner & Paul Legal Practitioners JUDGMENT KONDOLO SC, JA delivered the Judgment of the Court CASES REFERRED TO: 1. Azim Ticklay, Alex Chule and Christon Vwalika v Road Transport & Safety Agency & Intercape Ma'inliner (Zambia) Limited SCZ Appeal No. 117 /2012. 2. New Plast Industries Limited v Commissioner of Lands & Attorney General (2001) ZR 51 3. Chikuta v Chipata Rural Council (1974) ZR 241 4. General Nursing Council of Zambia v Mbangweta (2008) 2 ZR 105 LEGISLATION REFERRED TO: 1. The Rules of Supreme Court of England 1999 Edition (The White Book) 2. The High Court Rules, Chapter 27, Laws of Zambia 3. The Rules of Supreme Court J2 of 12 This Appeal is against a judgement of Judge S. Kaunda Newa of the High Court dated 9th May, 2013 . The background is that the 1st Respondent commenced an action at the Lands Tribunal in respect of a dispute over land. The Appellant was not cited as a party to that action. The Appellant also commenced an action over the same piece of land before the Subordinate Court and included the 1st Respondent as a party. The 1st Respondent informed the Subordinate Court that she had not consented to the case being heard in that Court and as provided by the Subordinate Courts Act, she applied to have the action transferred to the High Court under cause no. 2013/HP/662. When the matter was transferred to the High Court, the 1st Respondent requested to have the case dismissed for abuse of court process as there was a case before the Lands Tribunal with regard to the same piece of land. The Judge dismissed the application after holding, inter alia, that the Appellant was not a party to the action before the Lands Tribunal and that there was no evidence that he was aware that the 1st Respondent had commenced an action before the Tribunal over the same piece of land. The Judge also noted that the other parties to the matter before the Lands Tribunal had been joined as parties to Cause 2013/HP/662 meaning that, none of the parties would suffer prejudice if the matter proceeded to trial before the High Court. The 1st Respondent's application was dismissed and she was at liberty to stay the proceedings before the Lands Tribunal. J3 of 12 The 1st Defendant did not stay the proceedings before the Lands Tribunal and the matter was concluded in favour of the Plaintiff who then applied to the High Court for leave to discontinue the action pursuant to order 21 Rule 5/9 and 10 of the White Book. The Deputy Registrar granted the application to discontinue the proceedings citing Order 17 of the High Court Rules and condemned the Appellant in costs. The Appellant promptly appealed against the Deputy Registrar's decision to the Judge of the High Court advancing two grounds of appeal namely that; the Deputy Registrar erred by condemning the Appellant in costs because the discontinued matter had been overtaken by events and that even though the Appellant had applied to discontinue the matter by seeking leave of the Court as provided by Order 21 of the White Book, the Deputy Registrar cited Order 17 High Court Rules . Judge Newa considered the Appeal and held that the Deputy Registrar was on firm ground when he cited Order 17 High Court Rules because there was no lacuna in the law requiring the Plaintiff to resort to Order 21 of the White Book. She further found that the Appellant was guilty of forum shopping and engaging in a multiplicity of actions and that the Deputy Registrar therefore correctly condemned the Appellant in costs. The Appellant dissatisfied with the Ruling of the High Court has now appealed to this Court on th e following grounds; J4 of 12 1. The Court below erred both in law and in fact when it held that the Deputy Registrar did not misdirect herself when she awarded costs against the Plaintiff even if the reason for discontinuance of action was due to the fact that the matter had been overtaken by the decision of the Lands Tribunal and held further that a defendant by virtue of Order 17 of the High Court Rules Chapter 27 of the Laws of Zambia is entitled to costs incurred before an action is discontinued without taking into account that the Plaintiff made an application to discontinue the matter under Order 21 rules 5/9 and 10 of the Rules of the Supreme Court of England 1999 edition which order empowers the Court to grant leave to discontinue an action order and each party to bear their own costs. 2. That the court below erred when it held that there was no lacuna in the provision under Order 1 7 of the High Court Rules Cap 27 of the Laws of Zambia warranting resort to Order 21 of the Rules of the Supreme Court of England 1999 edition. 3. The Court below erred in fact when it held that there was a multiplicity of actions and forum shopping by the Plaintiff and his wife were [who) not parties to the action at the Lands Tribunal at the time the High Court matter was commenced. The Appellant filed Heads of Argument dated 28 t h March, 2019 in which it was argued that the Appellant resorted to Order 21 Rules 5/9 and 10 of the White Book because they were more elaborate than Order 17 High JS of 12 Court Rules which did not provide for parties to apply for leave to withdraw a matter without paying costs. It was submitted that Order 21 of the White Book therefore filled a lacuna in that respect. This argument was reinforced at the hearing when the Appellant cited the case of Azim Ticklay, Alex Chule and Christon Vwalika v Road Transport & Safety Agency & Intercape Mainliner (Zambia) Limited 111. The cited case was similar to the matter before us in that the Appellants therein had been condemned in costs after withdrawing an action and the Supreme Court resorted to Order 62 (3) of the White Book which was more elaborate than Order 77 of the Supreme Court Rules. It was further submitted that the Appellant had not engaged in forum shopping or a multiplicity of actions. Counsel referred to the earlier Ruling by the High Court, when it refused the 1st Respondents application to dismiss the action for abuse of court process. He pointed out that the High Court stated that there was no evidence that the Appellant was aware of the matter before the Lands Tribunal when he commenced his action in the Subordinate Court. Counsel for the Appellant added that, when the High Court dismissed the 1st Respondent's application to dismiss the matter for abuse of court process, the learned Judge ruled as follows; "The 1st Defendant is at liberty to apply to stay the proceedings before the lands Tribunal as this Court has original jurisdiction in land matters and as already observed, the matter is properly before this Court''. JG of 12 Learned Counsel for Respondents relied on the Heads of Argument dated 22 n d January 2020 in which he argued that the White Book could only be resorted to where there was a lacuna in our rules . He supported the argument by citing Section 10 of the High Court Act and the cases of New Plast Industries Limited v Commissioner of Lands & Attorney General 121 and; Chikuta v Chipata Rural Council 131. He opined that there was no lacuna in Orderl 7 High Court Rules because it provides for the discontinuance of suits before the date fixed for hearing and that the Defendant was entitled to the costs incurred before that action is discontinued. Counsel further submitted that costs were awarded at the discretion of the Court and he relied on the case of General Nursing Council of Zambia v Mbangweta 14 1 in which it was held as follows; "It is trite law that costs are awarded in the discretion of the Court. Such discretion is however to be exercised judiciously. Costs usually follow the events." He opined that Order 17 High Court Rules provided for the payment of costs to a defendant when a matter was withdrawn and in this particular case, the Court exercised its discretion after taking into account the circumstances which the Judge articulated on pages J14 and J15 of the Judgment appealed against. Counsel further submitted that the lower Court J7 of 12 was on firm ground when it held that there was a multiplicity of actions by the Appellant, a practice frowned upon by the Courts. He cited several authorities on multiplicity of actions and abuse of court process and opined that the lower Court was on firm ground when it condemned the Appellant in costs. We have considered the Record as well as the submissions by Counsel and shall begin with the issue of whether the lower Court erred when it found that there was no lacuna in Order 1 7 High Court Rules and thereafter consider the issue of whether or not the Appellant had engaged in forum shopping and multiplicity of actions. Counsel for the Appellant argued that the Appellant resorted to Order 21 of the White Book because the circumstances of this case required that the Appellant should not be condemned in costs, a situation which was provided for by Order 21 of the White Book but not by Order 1 7 High Court Rules , meaning that there was a lacuna. We have looked at Order 21/5/9 of the White Book and we agree that it does provide for a party to apply for leave to withdraw a matter without the necessity of paying costs. We have also looked at Order 17 High Court Rules which reads as follows; "17. If, before the date fixed for the hearing, the plaintiff desires to discontinue any suit against all or any of the defendants, or to withdraw any part of his alleged claim, he shall give notice in writing of discontinuance or J8 of 12 withdrawal to the Registrar and to every defendant as to whom he desires to discontinue or withdraw. After the receipt of such notice, such defendant shall not be entitled to any further costs, with respect to the matter so discontinued or withdrawn, than those incurred up to the receipt of such notice, unless the Court or a Judge shall otherwise order; and such defendant may apply ex parte for an order against the plaintiff for the costs incurred before the receipt of such notice and of attending the Court or a Judge to obtain the order. Such discontinuance or withdrawal shall not be a defence to any subsequent suit. If, in any other case, the plaintiff desires to discontinue any suit or to withdraw any part of his alleged claim, or if a defendant desires to discontinue or withdraw his counter-claim or any part thereof, such discontinuance or withdrawal may, in the discretion of the Court or a Judge, be allowed on such terms as to costs and as to any subsequent suit and otherwise as the Court or a Judge may deem just. Even though Order 1 7 of the High Court Rules does not specifically provide for leave to apply to withdraw a matter for the purpose of avoiding costs, it provides that an application to withdraw a matter can "be allowed on such terms as to costs and as to any subsequent suit and othenuise as the Court or a judge may deem just. " This means that a party is at liberty, as is J9 of 12 routinely done in other circumstances where the question of costs is in issue, to provide the Court with reasons as to why it should not be condemned in costs. Therefore, the lower Court did nor err when it held that there was no lacuna on this particular question and held that Order 17 High Court Rules adequately catered for it. We have considered the case of Azim Ticklay, Alex Chule and Christon Vwalika v Road Transport & Safety Agency & Intercape Mainliner (Zambia) Limited cited by Counsel for the Appellant, as well as the course of action adopted by the Supreme Court in that matter. We note that the circumstances are different because in that particular case, what was being withdrawn was an appeal under Rules 63(3) and 77 of the Supreme Court Rules and the Supreme Court resorted to Order 62(3) of the White Book which specifically addressed the issue before the Court. The provisions in Order 17 High Court Rules and Orders 63(3) and 77 of the Supreme Court Rules are quite different. The case before us can be distinguished from the cited case. We are quite bewildered by the finding of the lower Court that the Appellant had engaged in forum shopping and a multiplicity of actions. The learned Judge's finding is expressed at page J14 of her Judgment where she said as follows ; "In the judgement delivered on 10th February, 2015, the Lands Tribunal found that the 3 rd Respondent Mr. Robinson Chanda, who is the Plaintiff in this matter lawfully bought JlO of 12 the two properties, and declared him as owner of the same. It can be seen that the complainant before the Lands Tribunal was the first to commence the action over the disputed land, but the Plaintiff also went ahead to sue before this court." We agree with the submissions by Counsel for the Appellant that the High Court had itself, albeit by a different Judge, made a finding that there was no evidence that the Appellant was aware of the matter before the Lands Tribunal before he commenced an action in the Subordinate Court. This was contained at page R6 of the Ruling by Sitali J, as she then was (see page 1 79 of the Record of Appeal) and where she held as follows; (( Further as I observed, the plaintiff, Robinson Chanda, was not a party to the proceedings before the Lands Tribunal which were commenced by the 1st Defendant. As such there is no evidence before me to prove that the Plaintiff commenced his action in the subordinate court knowing that the stand of which he seeks an order of possession was the subject of proceedings before the Lands Tribunal. The 1st Defendant has not adduced any evidence to prove that she did serve the originating process on the Plaintiff. In the circumstances, there is no basis on which to hold that the decision of the plaintiff Robinson Chanda, to commence the action in the subordinate court regarding Stand No. 36940, Lusaka which was subsequently transferred to this court is an abuse of court process." Jll of 12 It is therefore clear that the issue of forum shopping or multiplicity of actions was conclusively dealt with by Si tali J who also stated that the 1s t Respondent was at liberty to stay the proceedings before the Lands Tribunal as cause no. 2013/HP/662 was properly before the Court. It must also be noted that during the proceedings before Sitali J, the 1st Respondent's Affidavit in support of the application to dismiss the action did not state that the 3rd Respondent who had been joined to the action was the Plaintiffs wife . On the other hand, the Plaintiffs Affidavit in opposition disclosed that his wife was joined as a party to the action before the Lands Tribunal on 6 t h September 2013 and that he was later substituted as the party because all the documents relating to the subject land were in his name. The Plaintiff made full disclosure of the facts surrounding the matter before the Lands Tribunal and it was the High Court that decided that it would nonetheless preside over Cause 2013/HP/662 . The same High Court cannot therefore, turn around and say that proceeding before it amounted to a multiplicity of actions and forum shopping. It is also notable that the Lands Tribunal Judgment indicated that Counsel for the Appellant had in fact advised the tribunal that there was a similar matter before the High Court. The matter before the Lands Tribunal had been decided in favour of the Appellant and he had no option other than to withdraw the matter before J12 of 12 the High Court with the same parties and same subject matter. The matter had been maintained in the High Court by its own ruling and it cannot therefore turn around and accuse and condemn the Appellant for engaging in forum shopping and a multiplicity of actions. This is the type of matter where the lower Court should have exercised the discretion provided by Order 1 7 High Court Rules and ordered each party to bear its own costs which we now do. Grounds 1 and 2 fail in so far as they relate to the argument that there is a lacuna in Order 1 7 High Court Rules on the question of costs in the circumstances of this case. Ground 3, which is the substantive ground, succeeds as we find that there was no forum shopping or multiplicity of actions engaged in by the Appellant. For the sake of clarity, each party to bear its own costs m the High Court and the Appellant is awarded costs before this Court. ~ ::::, z____- -°'- ······································ M. KONDOLO SC COURT OF APPEAL JUDGE .......... ·. ~ ............. g; .. C. KMAKUNGU COURT OF APPEAL JUDGE M. J. SIAVWAPA COURT OF APPEAL JUDGE