The Respondents presented two motions. They sought an order for payment of costs after the Appellants discontinued the appeal. The brief background leading to the motions was that the Appellants had sued the Respondents in the High Court. A preliminary issue was raised which led to the High Court Judge dismissing the Appellant's case in the High Court. The Appellants were aggrieved by the decision and appealed to this court on 13th August 2012. Subsequently, on 15th October 2012 the Appellants lodged the record of appeal and on 20th September 2014 filed heads of argument in support of the appeal. The Supreme Court set down the hearing of the appeal in the April 2015 Ndola sessions and issued a cause list to that effect. After the First Respondent realized that the matter would come up on appeal, it filed a notice of intention to raise preliminary issue on 22nd May 2015 and served the process to that effect upon the Appellants. On 28th May 2015, the Appellants filed a notice of withdrawal of appeal.
Held:
- Rule 63(1) of the Supreme Court Rules allows a party to withdraw an appeal by filing a notice to that effect, while Sub-rule (2) makes provision for the parties to the appeal consenting to the withdrawal. Absent such consent, the appeal remains on the cause list for purposes of determination of the issue of costs or any other outstanding issues.
- Rules 77 of the Supreme Court Rules gives this court discretion to make an order as to costs.
- The White book is specific on the issue of costs in respect of withdrawn or discontinued actions in Order 62. It states under Order 62(3) as follows: "where a party by notice in writing and without leave discontinues an action or counterclaim or withdraws any particular claim made by him as against any party) that other party shall be entitled to his costs of the action or counterclaim or his costs occasioned by the claim withdrawal) as the case may be) incurred to the time of receipt of the notice of discontinuance or withdrawal".
- Since the Appellants did not seek the leave of the Court or consent of the other parties to withdraw the appeal, they were liable to pay costs incurred by the Respondents, especially that the appeal had reached an advanced stage and as such the Respondents had incurred costs.
