Sata v Banda and Ors (SCZ EP 1 of 2009) [2009] ZMSC 158 (28 April 2009)

SUPREME COURT OF ZAMBIA MICHAEL CHILUFYA SATA Vs RUPIAH BWEDZANI BANHA ATTORNEY-GENERAL OF ZAMBIA ' ELECTORAL COMMISSION OF ZAMBIA, SUPREME COURT mambilima, dcj, CHIRWA, CHITENGI, silomba and mwanamwambwa, jjs 27th and 28th April 2009 SCZ/8/EP/01/2009 Flynote Presidential election petition, when costs can be awarded. Headnote The petitioner-challenged the Respondent's election as Republican President, citing irregularities _ CQ&.m jtted during thepres^ ^--ancbSSpoi^ for costs Lhe petition midstream____ L“1 con de rn nation-in costs, unless the'petifionis frivolous- 11. application granted. y-unwar RULING CHIRWA, J. S. delivered the Ruling of the Court. when this matter last came before us on 11th March, 2009, it was adjourned to 27th April 2009 for hearing. On 27th April 2009, before we commenced the hearing, State Counsel MUTALE informed the Court that since the last sitting, he had received instructions from the Petitioner to withdraw the petition, as the Petitioner had decided to commit all his energy and resources to the forthcoming presidential and General Elections in 2011. State Counsel then formally applied to withdraw the Petition. There was no objection from all the Respondents and the petition was thus accordingly formally withdrawn. The question that remained was one of costs. State Counsel M UTALE submitted that this was a proper case where the Court should order that each party bears its own costs as the petition was not frivolous. He told the Court that this petition was bona fide as it was brought because of the manner in which the 2nd Respondent conducted and managed the last Presidential Election, especially in the manner the results were posted. In his view, the petition, therefore, raised some Constitutional issues and the Petitioner should thus not be condemned in costs. He argued that since we were in a democracy and this Court had previously stated that people must be encouraged to litigate on important Constitutional issues, the Petitioner should be commended for bringing this Petition. He quoted what we said in LEWANIKA & OTHERS V CHILUBA (1998) Z. R. 79 at 228 that: "However, it is clearly in the.proper functioning of our democracy that challenges to the election of the -President which are permifted-hythe Constitution and which are not frivolous should not be inhibited by unwarranted condemnation «>sts.. In the eventjfis only fair that each partie^ho^gar their ■rF ii i i m M I - - of our democracy that challenges to the election of the President which are ° • constitution and which are not frivolous should not be inhibited by unwarranted"'-1611 b/ In the event, it is only fair that each of the parties should bear their own costs” C°nC,e'”riatioP in costs. in matters of this-hatUrbiit^^ In view of this State Counsel MUTALE submitted that th should uphold what we have said before on costs in Pr6Sent petltion was n°t frivolous and that we that each party should bear its own costs. PreV'°US Presidential election petition and order prof. MVUNGA, SC, on behalf of the 1st Resoo distinguishable from the previous Presidential" SUbm'tted that the Present petition was and not abandoned like this one. He said that 6 Petlt'°nS aS those were heard and completed able to assess whether the petition was frivol WSS °nlV end °f *he hearing that the Court was abandoned the petition, he should bear tii °US MVUNGA SC submitted that as the Petitioner has very act of abandoning the petition show- thT^ T* Pr°f' MVUNGAs further submission that the cannot say that the issues brought in this nerr' TL ' 'VUl°US'11 was further argued that the Petitioner stated .hat fram the “ ””bee” d,e“ed alternative, Prof. MVUNGA argued that the CourTh ' Petlt'°ner C°Uld haVe been guided'ln the petition was frivolous or not as the petition hash T °PP°rtUnity t0 determine wh«her the adept the p„ta0, the iXX"' SU'’”i"“ In supplementing Prof. MVUNGA’s submissions, Mr. SHONGA, another Counsel for the 1st Respondent, submitted that it was not proper in this case for the Court to order that each party should bear its own costs as there was a requirement under Section 99(4) of the Electoral Act, No. 12 of 2006 for the Court to make any such order as to costs as it may consider just. He argued that it would be unjust for the parties to bear their own costs and let the Petitioner walk away without footing the costs for this litigation. He stated that the 1st Respondent has already incurred costs in this petition and the Petitioner must pay them. ’ Mrs. KOMBE for the 2nd and 3rd Respondentsjniti^iy^dopted the arguments advanced by both Prof. ^MVUNGA and MrvSHONGA^b^^^ whejhe^ —— :— ______ ■ - , .. ■■— —“ . • ;, ; .-Li.- - r. - " interest, the Attorhev^Genef^ ^ai ubmtssions-l H It n Previous decisions on costs in pr because we found that the petitions were not frivolous and that each party should bear its own election of a President by unwarranted condemnation in Parties should not be inhibited toe a costs. In this case, we are not in a position Aether the petition was frivolous or not as it was not heard. Suffice to say that the allegations are targeted at th . Respondent. No wrongdoing has been alleged against he was declared the winner. As was correctly submitt^ k T ReSpondent' He was brought in because incurred costs in this petition. In the circumstances bV SH°NGA'the lst Respondent has e'eCti°ns by the 2nd °f Respondent should be denied costs. We therefore ° * 'S Case'we see no reaso" why the 1st Respondent, the Petitioner shall bear the costs^h^^ betWeen the Petiti°ner and the lst 2nd and 3rd Respondents, each party will bear its 6 ReSpondent As between the Petitioner and Respondent to be agreed upon, in default to be taxed betWeen the Petitioner and 1st I. C. Mambilima DEPUTY CHIEF JUSTICE D. K. Chirwa SUPREME COURTJUDGE P. Chitengi SUPREME COURT JUDGE S. S. Silomba _ ...__ SUPREME COURT JUDGE