Tunya Lodge Limited & Another v Kalaluka (Receiver/Manager) & Others (Appeal 63 of 2011) [2014] ZMSC 13 (8 January 2014)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) B E T W E E N: APPEAL NO. 63 OF 2011 TUNYA LODGE LIMITED 1 ST APPELLANT ESSAU SYAMUSALE SYAMUCILIBA NEBWE 2 ND APPELLANT AND NAMBOYA KALALUKA (Sued as Receiver/Manager) NGENDA SITUMBEKO (Sued as Receiver/ Manager) 1 ST RESPONDENT 2 ND RESPONDENT ZAMBIA NATIONAL COMMERCIAL BANK PLC RESPONDENT 3 RD BEFORE: HONOURABLE MR. JUSTICE M. E. WANKI IN CHAMBERS On 9th January, 2014 For the appellants: Mr. L. C. Zulu of Messrs. Malambo and Company For the 1st Respondent: For the 2nd Respondent: For the 3rd Respondent: N/A N/A Mr. G. Pindani of Messrs. Lewis Nathan Advocates ___________________________________________________________________________ R U L I N G ___________________________________________________________________________ Zambia National Commercial Bank Plc, the 3rd respondent applied pursuant to Rule 63 (3) as read together with Rule 48(1) of the Supreme Court Rules Chapter 25 of the Laws of Zambia for an order for costs. The application was supported by an Affidavit in Support that was sworn by Fredrick Mudenda, Counsel seized with the conduct of this matter on behalf of the 3rd respondent. In presenting the application on behalf of the 3rd respondent at the hearing Mr. Pindani submitted that this is an application for an order for costs pursuant to Rule 63(3) as read with Rule 48(1) of the Supreme Court Rules Chapter 25 of the Laws of Zambia. Counsel relied on the Affidavit in Support and filed into Court on 13th December, 2013. Mr. Pingani emphasised that on 31st December, 2010 the appellants had filed a Notice of Appeal and subsequently filed their Record of Appeal on 22nd June, 2011. On 27th August, 2013 the appellants filed a Notice of withdrawal of the appeal which was served on the 3rd respondent on 4th October, 2013. Counsel contended that the 3rd respondent did not consent to the withdrawal of the appeal as the Notice of withdrawal clearly shows. Mr. Pindani argued that in terms of the cited Rules particularly Rule 63(3) this Court has the power to order costs R2 incurred in the discontinued appeal. Counsel therefore, prayed that the application be granted as prayed. In Opposition the appellants filed an Affidavit in Opposition that was sworn by Esau Syamusale Syamuciliba Nebwe, the 2nd appellant and Chairman and Chief Executive Officer of the 1st appellant. In supplementing the Affidavit in Opposition at the hearing of the application on behalf of the appellants, Mr. Zulu submitted that he relied firstly on the provisions cited particularly Rule 63(3) and secondly the Affidavit in Opposition filed on 6th January, 2014. Counsel pointed out that the appellants depose that they did seek the consent of the 3rd respondent’s Lawyers to withdraw the appeal; he referred to exhibit “ESSN1” in the Affidavit in Opposition. Mr. Zulu contended that the letter is a request to withdraw the appeal; and that it was acknowledged. Counsel pointed out that the respondents declined to give their consent. He argued that it is not true that the withdrawal was done without the knowledge of the 3rd respondent. Mr. Zulu further contended R3 that the Notice of withdrawal was duly served on 4th October, 2013 and it was acknowledged as per exhibit “ESSN3” in the Affidavit in Opposition. Counsel pointed out that the appellants further depose that costs were negotiated and agreed, these were limited to the sum of K25,000=00; that K10,000=00 of the agreed costs have been paid; and that the appellants are committed to paying the balance of the agreed costs. Mr. Zulu argued that in terms of Rule 63(1) of the Rules of the Supreme Court, Chapter 25 of the Laws of Zambia an appellant is entitled in the absence of consent that has been withheld to proceed to file a Notice of withdrawal in terms of Form CIV/7 in the 3rd Schedule to the Act. Counsel contended that the appellants acted within the provisions of the law; and in any event the costs were agreed and they are in the cause of being settled. He therefore, submitted that this application is misconceived as the issue is moot; and he prayed that the application be dismissed. In reply, Mr. Pindani submitted that he wished to correct the wrong impression created that costs were agreed and in the R4 process of being paid. He urged the Court to take judicial notice as the Court Record shows that after the appellants filed their Record of Appeal they latter filed a Notice of Motion seeking leave to introduce new evidence on appeal; that Notice was heard after all parties had filed their heads of arguments and responses by the full bench of the Supreme Court and that, that Motion was found to be misconceived and incompetent and was accordingly dismissed with costs to be agreed in default to be taxed. The costs that Counsel has alluded to are costs in respect of the dismissed Notice of Motion for leave to introduce fresh on appeal. Mr. Pindani contended that the main appeal which was before the Supreme Court still remained on the active Cause List; and this is the appeal which the appellants withdrew by a Notice filed on 27th August, 2013. He added that the Notice of withdrawal on Record clearly shows that the 3rd respondent did not sign to signify consent as provided for under Rule 63(1), (2), (3). Counsel submitted that as the appellants’ Affidavit in Opposition clearly concedes that the 3rd respondent did not consent to the withdrawal. It was contended that the 3rd R5 respondent is justified at law to make an application for costs and the issue of costs is not therefore moot because the costs being sought relate to the appeal which was discontinued, which is totally different and separate from the costs in respect of the dismissed Notice of Motion for leave to introduce new evidence. Mr. Pindani therefore retaliated his prayer that, their application be granted as it has merit. I have considered the application together with the Affidavit in Support, and the submissions on behalf of the 3 rd respondent. I have also considered the Affidavit in Opposition together with the submissions on behalf of the appellants. This application has been made pursuant to Rule 63 and 48 of the Supreme Court of Zambia Act Chapter 25 of the Laws of Zambia which provides that:- “63(1) An appellant may at any time after lodging the appeal and before the appeal is called on for hearing serve on the parties to the appeal and file in the Registry a notice in Form CIV/7 of the Third Schedule to the effect that he does not intend further to prosecute the said appeal. (2) If all parties to the appeal consent to the withdrawal of the appeal without R6 (3) order of the Court, the appellant may file in the Registry the document or documents signifying such consent and signed by the parties or their practitioners, and the appeal shall thereupon be deemed to have been dismissed. In such event, any sum lodged in Court as security for cost of the appeal shall be paid out to the appellant. If all parties do not consent to the withdrawal of the appeal as aforesaid, the appeal shall remain on the list, and shall come on for the hearing of any issue as to costs or otherwise remaining outstanding between the parties, and for making of an order as to the disposal of any sum lodged in Court as Security for the costs of the appeal. And Rule 48 provides for civil applications. As would be noted from Sub-Rule of Rule 63 an appellant has a right to withdraw his appeal; and Sub-Rule (3) of the said Rule 63 gives right to a party which does not consent to the withdrawal to make an application to the Court on any issue as to costs or otherwise. The objection by the appellants has been premised on the grounds that they did seek the consent of the 3rd respondent’s Lawyers to withdraw the appeal and the Court has been referred to exhibit “ESSN1” in the Affidavit in Opposition; and R7 that costs were negotiated and agreed, these were limited to K25,000=00 which have been partly paid. In response on behalf of the 3rd respondent, it has been contended that the 3rd respondent did not consent to the withdrawal and that the costs of K25,000=00 related to the Notice of Motion that was dismissed with costs on 14 th December, 2012. The issues that I have to resolve, is whether the 3rd respondent consented to the withdrawal; and whether costs were agreed for the withdrawal of the appeal. According to exhibit “ESSN1” the appellants wrote to Messrs. Lewis Nathan on 15th August, 2013 seeking consent to withdraw the appeal. This was acknowledged. Messrs. Lewis Nathan on 19th August, 2013 wrote to Messrs. Malambo and Company advising that they had no instructions to consent, as per exhibit “ESSN2”. On 4th October, 2013 Malambo and Company wrote to Lewis Nathan enclosing a Notice of withdrawal which was duly acknowledged as per exhibit “ESSN3”. From the correspondence, I have found that the 3rd respondent did not consent to the withdrawal. The provisions of R8 Rule 63 are clear, there is no entitlement in the absence of consent that has been withheld to proceed to file a Notice of withdrawal. The next issue is whether costs for the withdrawal of the appeal were negotiated and agreed. It has been contended that the costs in this matter were negotiated and agreed between the 3rd respondent’s Advocates and the appellants’ Advocates. However, the 3rd respondent’s Advocates deny that any costs were negotiated and agreed for the withdrawn appeal; they contend that the costs that were negotiated and agreed related to the dismissed Notice of Motion. It is common that on 14th December, 2012 a Notice of Motion was dismissed with costs to be taxed in default of agreement. It is the appellants who are alleging that the K25,000=00 costs that were negotiated and agreed included costs for the withdrawn appeal. Other than disposing in paragraph 11 of the Affidavit in Opposition and Counsel submitting, there has been no documentary evidence to support the allegation. R9 Further, there are no details as to when the costs for the withdrawn appeal were negotiated and agreed. I would agree with the 3rd respondent that, the K25,000=00 costs were for the dismissed Notice of Motion only. There has been no explanation as to why negotiations for the costs for the dismissed Notice of Motion had to wait from 14th December, 2012 to October, 2013. It does not sound logical. In the circumstances, I have found that the K25,000=00 costs negotiated and agreed between Malambo and Company and Lewis Nathan Advocates related to the dismissed Notice of Motion. In the light of the foregoing, I find merit in the application and it is accordingly granted as prayed. I order that the 3rd respondent is entitled to costs of the withdrawn appeal up to the date of filing of the Notice of withdrawal in the Registry, which will be subject to taxation in default of agreement. Further, the 3rd respondent is entitled to the costs of this application which again will be subject to taxation in default of agreement. R10 Delivered at Lusaka in Chambers on the 31st day of January, 2014. M. E. Wanki SUPREME COURT JUDGE R11