Zambia Consolidated Copper Mines Ltd v Chisha (Appeal 10 of 1988) [1988] ZMSC 67 (7 December 1988)

IN THE SUPREME COURT OF ZAMBIA Appeal No. 10 OF 1988 HOLDEN AT NDOLA । g; g-s J who Ms ar^u-Sd appeiI ant!s ■ ' 1 ui. Hs has cc^lained th#i there ms no justification (Civil Jurisdiction) ‘J t ' ui , . tus client in tn-g circumstances which yp, irt.i HO '"nr t.hA -^35^ •4' < • j? ••'• ZAMBIA CONSOLIDATED COPPER MINES Ltd, Appellant , i * 1 ’ * * »IA ; L* ’ ■ '' ?? i. 7» i < J J ‘J,? i IC 1 ’. । ■.• . ■. /■ ‘ • v > M *- j,-vp~v . and -■■ « iv? aw»rw of costs In Die Circumstances . CdS^u ■ <C'i ‘ .t‘OH~e?tvTJa»;ce by STEVEN CHISHA , . Respondent CORAM: Ngulube, D. C. J. Gardner, J. SJ and BweupeJ AJ. S. 1 tu* doMir&st il • vWs uolht: ;i MA G. Hasengu, Legal Counsel . for ,?p£enan£ ^BseS .f6r . A. J. Mkandawire, Messrs, Mkandawire & Co,, for the respondent , . ,, . in . t>hv> very ?1 iy agreed ■ J: U 0' G< M E -M Jwd LWtW Ue i; <5 a 1 Ipiwd on ’ I ■' • ■ Ngulube, D. C. J. delivered;,the judgment of the court . ,. ,, t“4' coiirt !^v Hi c*O»fh circumstances ^uht'td The brief facts of this 'case were that a civil matter was, ’’ 'i- -i nt>; v fnstaw:^ Of tfrscsxtrtes.y-wicb snoutopo < scheduled for hearing before .a ,High. Cou^- .comm^ ^ijtwe 6th January, 1988, in open court. . Quite obviously ti^e jearned tri al commissioner must have been expecting counsel ,fp,^ attend before him. on that particular da^.; , In the meantime, however, j the marshall to the learned High Court commissioner had, onjst{r'\\ December, 1987, addressed a circular letter to all the legal practitioners in Kitwe advising that the. learned commissioner would not be sitting during the period pf .the^ v^at^,^^ December, 1987, to 21st. Janqary, 4is.^als^uit^apparent that the learned High Court commissioner was either unaware of or had ’ i u ] fy xn fiv • -jexav w1 un ne ■ • ■ - {• t t ' overlooked the contents and purport or^ marshal 1 to the legal practitioners^ Yi Ip^cppsMg^gft,;,.tthe leafned commissioner did attempt to sjt on 6th. January., 1988,( and because... . counsel for the appellant in this case was absent,.an order was ;p, made condemning his client in the costs,of.thp adjournment and also directing that counsel be. ..cited, for contempt; and dp^ appear;.to, show cause why he should not be; committed, to prison, 10^^RCh..contgj^, ; 'Vg i of cksc, therefore, we hold the view - ■thji g': •■•.g.-h’gI !?!?ke nc- uro-ei” as to costs. 2/ 1 e>. The : J2 : ; ... The unfortunate counsellor the defendant against whom that order was made happens to be counsel who has argued the appellant’s case before us. He has complained that there was no justification for the award of costs against his client in the circumstances which we have described. Mr. Mkandawire, acting for the respondent, has quite properly conceded this and supports,-his, learned brother that there was no occasion for the award of costs in the circumstances of this particular case where non-attendance by counsel was caused': by the court itself when the marshall wrote the letter referred to. We have no hesitation in agreeing*with'the'appellant on this point and in allowing that portion of the appeal. The second complaint raised in this appeal is against the threat to commit counsel for alleged contempt. Once again Mr. Mkandawire has very fairly agreed that he does not support the learned triar commissioner.order and would support the appeal of his learned brother being allowed on that point. We wish to draw attention of the court to the fact that counsel are officers of the court and that while an obvious case of discourtesy to the court may in certain circumstances amount to contempt, it is not every instance of discourtesy which should be regarded as a contempt. On the facts of this particular case, there was in fact no evidence whatsoever that any sort of discourtesy was intended or committed by counsel for the appellant in these proceedings. We have no hesitation In reversing the order made wherein counsel was threatened with a committal to prison. The appear succeeds on that ground also. . Having allowed the appeal in full the.question which has exercised our minds Is what order for costs would be appropriate in this case. We are fully in sympathy with the i respondent in this matter who had a gratuitous order for costs made in his favour and who has been impleaded as respondent basically to enable counsel for the appellant to vindicate himself in relation to the threat of committal. We fully accept that this was indeed an order made through no fault of the respondent himself but as with most orders and decisions appealed.against, it is always the court which makes the orders which bring the parties before this court. In all the circumstances of this case, therefore, we hold the view y "that we should make no order as to costs. - I { Cf Z£J3 M^^wriNgulubft^ lid DEPUTY CHIEF JUSTICE AppaJlent SiVy Respondent '. z ' '. 1$.. ;rV;S B SUPREME COURT JUDGE Gardner ■***->1-4 u*— f B. NKS Bweupe ACTING-SUPREME . COURT JUDGE — ' ■ 1 ' *■" ::V- '/ ■ . - : ' ;■' ■.•;c that.a,cIWjttar;was;,■ z ' 7: rr mcourt, .n ■; - r n opnn court. , ^byfousl^ ■■‘■i ■ e counsel . Wt particular day. l:»* AZ ■ q ; ne htarr(«□ ;iJCourt tcsitiUsionej“ had, ;>n l31 ’‘’h £ ar, Z. aa-,. '<z‘b r circular letter to all the legal pr.iczJu 3* hi Kitwe ^vUlaj that- the teamed ccnraissUw . M ‘ii z im; durj.-v; ta? wricd of the vacation, that u^ from Uthz£ , Ut^. to 2ut io.?,jt,is ai^ 4ui$s apparent' that \h$ •e-.'fn'Hd High Court,cw^iRS^cner unaware of of had z wn l;u (. LHt«su an< of rj^ ^tt^w£tten>by;:hl^^ w^hal? i ; the legal f.ractujonsrs. . In CGnsegufiaco, the learned . “ ► ' z-« uid attest to sit or 6U J^u^ry, end lac^e £/ £ ^ 'z-zz App»i.i»nt Hi this cast absent, an order w^s^ zz;,;./ .<i hi . -z. tn tfu conof tt)u Adjournment ■■ ■ ■ ' . ‘. ■ ’ >uns®l >; cited for coMs^Va;^ .. z .■ rmdd rot be chitted to prison for-such ,TM