Costa I Tembo v Fybrid Farm (Z) Limited (SCZ 13 of 2002) [2003] ZMSC 29 (27 October 2003)

COSTA I. TEMBO AND HYBRID FARM (Z) LIMITED SUPREME COURT SAKALA, CJ, MAMBILIMA AND CHITENGI, JJS 24TH SEPTEMBER, 2003 AND 28TH OCTOBER, 2003 SCZ No. 13 OF 2002. Flynote: Civil procedure - Rule 48 (5) of the Supreme Court Rules, Cap. 25 - Court interpreting its own Judgment. Headnote: The Appellant filed an application before the Supreme Court to interpret its own Judgment particularly where the Judgment related to costs. The court in its Judgment had ordered each party to bear its own costs as incurred in the Supreme Court. The Respondent took that pronouncement to mean that even the costs incurred in the High Court be borne by each party. Therefore the Respondent refused to pay the appellant the costs which were incurred in the High Court. Hence the appellant filed an application for interpretation of the Court's Judgment. Held: The Supreme Court has the power to make such order as to the whole or any part of the costs of appeal or any court below as may be just but in this present case the court's order as to costs did not affect the costs incurred in the court below, but only affected costs incurred in the appeal. Application found in favour of the appellant. Appellant: Mr. M. V. Kaona, of Nakonde Chambers For the Respondent: Mr. M. B. Muyawala, of Dzekedzeke and Company RULING Mambilima, JS, delivered the Ruling of the Court. The Appellant has filed a Notice of Motion under Rule 48(5) of the Rules of the Supreme Court, Cap. 25 of the Laws of Zambia, seeking an interpretation of our judgment delivered on 16th April, 2003. The portion of the Judgment on which the interpretation is sought is the last paragraph on page 26 of the Record of Appeal which reads: “On costs, although the Court has a direction in the award of costs, as a general rule, costs follow the event. A successful litigant will get his costs unless the Court orders otherwise for very good reasons. On this appeal, the Respondent has partially succeeded in that he will have to be paid the remaining two months salary in lieu of notice as we have already ordered. On this premise, we make no order on costs”. In his written heads of argument, Mr. Kaona explained that this Motion was prompted by the refusal by the Respondent to pay the Appellant’s costs in the Court below on the ground that in our Judgment of 16th April, 2003, we had overturned the Order for costs granted by the High Court. He submitted that the words used in the Judgment should be taken in the correct and proper context of the whole paragraph and that once this is done, it will be clear that the Court dealt with the issues of costs with regard to the appeal only and did not interfere with the award of the Court below. While conceding that this Court has jurisdiction to vary or reverse an order for costs made by the lower Court, Mr. Kaona submitted that the term that Court makes “no order as to costs” does not mean costs in the Court below but on Appeal. He referred us to a number of authorities, one of which is Order 62/A4/18 of the Rules of the Supreme Court (White Book) 1995 Edition which deals with entitlement to costs. According to Mr. Kaona, there is no provision under this Rule which states that the costs of appeal or “no order of costs” means costs in this Court and in the Court below. Mr. Kaona also referred us to Rule 77 under the Supreme Court of Zambia Act, which empowers this Court t make such Order “as to the whole or any part of the costs of appeal or in any Court below as we may be just....” Mr. Muyawala in response submitted that his understanding of our Order was that each party will bear its own costs in this Court and in the Court below. We have considered the submissions by Counsel and the portion of our Judgment over which interpretation is being sought. We agree with Mr. Kaona that there is ambiguity in the paragraph in question. The term we used; to “make no order on costs” should be taken in the full context of the whole paragraph. We are alive to the principle that a successful litigant is entitled to his costs. After noting that in “this appeal”, the Respondent had partially succeeded, we made no order on costs. Clearly, this Order related to the costs in this Court and not the Court below. It is evident to us from the wording of the paragraph in question that we did not vary the Order for costs made by the Court below. Our Order only affected costs on Appeal. We cannot find any basis for the Respondent to refuse to pay the costs awarded in the Court below. Since by its refusal to pay the costs in the Court below the Respondent has necessitated this application by the Appellant, we condemn it in costs of this Motion, which we grant to the Appellant, to be taxed in default of agreement.