Urban Brands Asset Management Limited and Anor v Impala Hotels and Suites Ndola Limited and Ors (2024/HPC/0063) [2024] ZMHC 183 (23 February 2024)

IN THE moH COURT FOR ZAMBIA AT THE COMMERCIAL REGISTRY HOLDEN AT LUSAKA (Civil . Jurisdiction) BETWEEN: t.lC OF - .o\lfff O F Z ]l! OICIARY ~, 2 3 FEB ~024 · MEl<Cl.\i. Ri:Gl:i" o:i, URBAN BRANDS ASSET MANAGEMEN . JGX LIMITED T PLAINTIFF CO?fD PLAINTIF AND IMPALA HOTELS AND SUITES NDOLA LIMITED AFRICAN LIFE FINANCIAL SERVICES (ZAMBIA) LIMITED SANDVIK MINING PENSION TRUST SCHEME LIMITED CEC PENSION TRUST SCHEME INDENI PENSION TRUST SCHEME LAFARGE CEMENT PLC PENSION TRUST SCHEME KONKOLA COPPER MINES PLC PENSION TRUST SCHEME FIRST DEFENDANT SECOND DEFENDANT THIRD DEFENDANT FOURTH DEFENDANT FIFTH DEFENDANT SIXTH DEFENDANT SEVENTH DEFENDANT Before the Honourable Mr Justice K, Chenda on 23•4 February 2024 For Ifie Plaintiff For the Defendants : Mr Y. Yosa of MAY and Co. : Mr P. Chomba of Mulenga Mundashi & Co. Legal Practitioners RULING On Application for Stay of Proceedings Pending Payment of Costs I have LISTENED ATTENTIVELY to the arguments and CLOSELY STUDIED the documents on record. After a CAREFUL CONSIDERATION, my decision delivered ex-tempore is as follows. 1. LAW ON STAY OF PROCEEDINGS PENDING PAYMENT OF COSTS OTHER THAN FOR DISCONTINUED ACTION 1. l English case law establishes the principle that where there are costs ordered to be paid in respect of an action, then a Court can order a stay of proceedings of a subsequent action founded on the same cause of action until the costs of the earlier action are settled. 1.2 A notable authority is Martin v Earl Beuchamp (1884) 25 Ch. D. 12 at p.15 where Cotton, L. J. expressed: "The rule is established that where a plaintiff having failed in one action commences a second action for the same matter, the second action must be stayed until the costs of the first action have been paid." 1.3 Closer to home, the High Court Rules, under Cap. 27 ("HCR") in Order 40 Rule 8 confer the following broad power on the subject: "Where the Court or a Judge orders costs to be paid, or security to be given for costs by any party, the Court or a Judge may, if it or he thinks fit, order all proceedings by or on behalf of that party in the same suit or proceeding, Q! connected therewith, to be stayed until the costs are paid or security given accordingly, but such order shall not supersede the use of any other lawful method of enforcing payment." (Emphasis added) 1.4 [t can be distilled from the aforesaid that where a costs award in the High Court remains unsatisfied, further proceedings in the same suit or in a different but connected suit can be stayed pending satisfaction thereof. 1.5 The above scenario should be distinguished from the costs of a discontinued action which for its part falls in the realm of Order 17 Rule 2 of the HCR and Order 21 Rule 5 of the Rules of the Supreme Court of England, 1965 in the White Book 1999 Edition. 2. ANALYSIS, CONCLUSION AND ORDERS 2.1 The evidential record shows that this matter was preceded by a petition under cause 2023 which was terminated by ruling of 18th January 2024 following a successful technical challenge by the R2 Defendants herein (as Respondents therein). Costs were awarded against the Petitioners there who are the Plaintiffs herein. 2.2 Perusal of the reliefs in the petition and the reliefs in this matter show that they are identical. Further both the subject matter and the parties are equally the same in the two cases. 2.3 Consequently, this case is for all intents and purposes a reboot of the petition case. 2.4 The evidence before Court establishes that the costs award from the petition case has not been satisfied. 2.5 There is no requirement under the HCR, that a stay can only be granted if the costs quantum has been locked in through taxation. The Plaintiffs' argument on the point is thus without basis and instead the Defendants' argument carries the day that the threshold is simply the existence of an unsatisfied costs award. 2.6 Thus, I am of the considered view that irrespective of the merits of the substantial matter, it is fair and just that before the Plaintiffs can put the Defendants to further litigation expense, they first clear the costs awarded for the failed petition. This application clearly has merit. 2. 7 However, I am mindful that since the parties cannot agree on quantum then the satisfaction of the costs award may very well depend on taxation, there is a risk of injustice of this case being kept in abeyance if the Defendants do not take out taxation proceedings. R3 • 2.8 I accordingly order that on condition that the Defendants take out the requisite taxation proceedings (in the petition case) within 14 days hereof, these proceedings are hereby stayed pending satisfaction of the relevant costs. 2.9 I further order that should the Defendants engage in any conduct that unjustifiably delays the conclusion of the taxation proceedings, the Plaintiffs shall be at liberty to move this Court to discharge the conditional stay of proceedings granted herein. 2.10 Costs of this application shall be in the cause and given the outcome, the determination of the injunction application shall only be done if and when the proceedings are re-activated. Dated at Lusaka this ________ Z.9..~------- day of-------------~ =- =------·--· 2024 ------------- ~ ----······-··-··-·· K. CHENDA Judge of the High Court R4