Headnote
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 the 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 she applied for a transfer of the action to the High Court.
When the matter was transferred to the High Court, the 1st Respondent applied to have the matter 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 Lands Tribunal over the same piece of land.
The Judge further noted that the other parties to the matter before the Lands Tribunal had been joined as parties to the High Court matter, and none of the parties would suffer prejudice if the matter proceeded to trial before the High Court.
After the 1st Respondent’s application was dismissed, she was at liberty to stay the proceedings before the Lands Tribunal. However, the 1st Respondent did not stay the proceedings before the Lands Tribunal and the matter was concluded in favour of the Appellant 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 applicant in costs. The Appellant promptly appealed against the Deputy Registrar’s decision to the High Court.
The High Court considered the appeal and held that the Deputy Registrar was on firm ground when he cited Order 17 of the High Court Rules because there was no lacuna in the law requiring the Appellant to resort to Order 21 of the White Book. The High Court, further found
that the Appellant was guilty of forum shopping and engaging in a multiplicity of actions. Therefore, the Deputy Registrar correctly condemned the appellant in costs.
The Appellant appealed.
Held
1. There is no lacuna in Order 17 of the High Court Rules on the question of costs.
2. Although Order 17 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 otherwise as the Court may deem fit. This means that a party is at liberty, as is 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. The case of Azim Ticklay, Alex Chule and Christon Vwalika v Road Transport and Safety Agency and Interscape Mainliner (Zambia) Limited SCZ Appeal 117/2012 distinguished.
3. The appellant did not engage in forum shopping or multiplicity of actions because there was no evidence that the appellant was aware of the matter before the Lands Tribunal when he commenced an action in the Subordinate Court.
Appeal successful in part.
