Lubinda Mubiana (Representing Kakumba Royal Establishment) v Dominic Timuna Kahare (Sued in his capacity as Representative of the Litoyi Royal Establishment) and Anor (APPEAL NO. 170/2024) (18 June 2025) – ZambiaLII

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 170/2024 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: LUBINDA MUBIANA APPELLANT (Representing Kakumba Royal Establishment) AND DOMINIC TIMUNA KAHARE (Sued in his capacity as Representative of the Litoyi Royal Establishment) JONATHAN LUTANGU RESPONDENT 2ND (Sued in his capacity as representative of the Litoya Royal Establishments) Coram: Chashi, Makungu and Banda-Bobo, JJA On 23rd April, 21st May and 18th June, 2025 For the Appellant: Mr. T.Katai holding brieff or Mr. V Kachaka of Messrs Victor Kachaka & Co. Legal practitioners For the 1st & 2nd Respondents: Miss.L.Muyabala holding brieff or Mr. C. Magubbwi of Messrs Magubbwi & Associates JUDGMENT MAKUNGU JA, delivered the judgment of the Court Cases referred to: 1. JNC Holdings Limited v. Development Bank of Zambia - SCZ Appeal No. 54 of 2. Milingo Lungu v. Attorney General 2022/ CCZ/ 006 3. Emmanuel Mutale v. Zambia Consolidated Copper Mines Limited SCZ Judgment No.12/ 1994 4. Morgan Naik v. Simon David Burgess and 5 Others - CAZ appeal No. 45 of 5. Charles Mushitu. v. SUJift Capital Limited -Appeal No. CAZ No. 110 of 2022 6. Owners oft he Motor Vessel "Lillian S" v. Caltex Oil (Kenya Limited) (1989) KLR 1 7. General Nursing Council ofZ ambia v. Ing'utu Milambo Mbagweta (2008) Z.R. Vol 2 105 Legislation referred to: 1. The High Court Rules. High Court Act Cap 27 of the Laws ofZ ambia 2. The Local Courts Act Chapter 29 of the Laws ofZ ambia 3. The Court ofA ppeal Act, Statutory Instrument No. 7 of 2016 1.0 INTRODUCTION 1.1 This is an appeal by the Appellant (plaintiff in the lower court) against the ruling made by Judge J.H. Mbuzi on 18th March 2014, at the Mongu High Court. The case raises the issue of whether a court that declares that it has no jurisdiction to handle a matter can make a valid order for costs. 2.0 BACKGROUND 2.1 On lith June 2013, in Cause Number 2013/HT/11, a matter commenced by way of writ of summons accompanied by a statement of claim, the appellant was cited as the 4th plaintiff. The p t to 3rd plaintiff were John Likonge, Patrick Mwala and Lizazi. Muzala Mweneshikemi as a representative of the Litoya Royal Establishment was cited as the defendant. 2.2 The matter remained dormant until 20th August 2023, when the appellant obtained a court order for leave to proceed. On 24th J2 June 2023, he applied for an order to alter the parties and on 23rd August 2023, the court granted him an order that he becomes the sole plaintiff and the defendants, were to be substituted with Dominic Timuna Kahare, as 1st defendant and Jonathan Lutangu as 2nd defendant (1st and 2nd respondents herein). 2.3 He proceeded to amend the writ accordingly. Then on 5th October 2023, the defendants took out summons for an order to dismiss the action for abuse of court process pursuant to Order 14 A and Order 33 Rule 3 of the Rules of the Supreme Court of England, 1999 edition (RSC). The reasons given in the summons were that there was lack of a cause of action and irregular citation of the parties. 2.4 In brief, the defendants raised the issues of the plaintiff having sued in a representative capacity of the Kakumba Royal Establishment which allegedly did not exist in the Kahare Chiefdom. The defendants also claimed that there is no royal establishment known as Litoya Royal Establishment in Western Province. They also claimed that no cause of action was disclosed in the writ. On the other hand, the plaintiff admitted that (Kakumba) Royal Establishment does not exist in the J3 Kahare Chiefdom but in Sishamba Sililo, which is a different chiefdom. He stated that his main claim was to restrain the defendants from encroaching on the Litoya area delineated in the chiefdom boundaries area map of 1958. 3.0 DECISION OF THE LOWER COURT 3.1 Upon considering the affidavit evidence and skeleton arguments filed by the parties, the lower court raised an issue suo moto whether it had the jurisdiction to entertain the matter, given the pleadings which showed that the land the plaintiff was contending for is held under customary tenure. Citing sections 8 and 12 of the Local Courts Act, Chapter 29 of the Laws of Zambia, 1 the Judge held that the two sections vest original jurisdiction in matters involving land held under customary tenure in the Local Courts. That such a matter could only be escalated to the High Court on appeal through the Subordinate Court. 3.2 Relying on the case of JNC Holdings Limited v. Development Bank of Zambia, 1 where it was held that where a matter is not properly before the court, the court has no jurisdiction to make J4 any orders or grant any remedies, the Judge dismissed the action with costs to the defendants. 4.0 THE APPEAL 4. 1 The appeal before us is based on two grounds of appeal that: "1. The learned Judge in the court be low erred in fact and law by awarding costs to the respondents when the matter was not decided on the merits but on a point of law which could have been avoided if the court had acted judiciously. "2. The learned Judge in the Court below misdirected himself by awarding costs to the respondents when the matter was decided on a technicality clearly exercisable by the courts, who did not pronounce their lack ofj urisdiction from 2013 until 2024." 5.0 HEADS OF ARGUMENT IN SUPPORT AND OPPOSITION 5.1 The learned counsel for both parties presented comprehensive heads of argument, supported by relevant authorities, for which we are indebted. We have given due consideration to these arguments and will refer to the pertinent portions in the analysis and determination. JS 6.0 ANALYSIS AND DETERMINATION 6.1 This appeal is against the costs order only. Since jurisdiction is everything, we first looked at Section 23 ( 1) ( d) of the Court of Appeal Act,2 which provides inter alia that: "( 1) An appeal shall not lie:- (d) from an order made with the consent of the parties or from an order as to costs only, which by law is left to the discretion of the court or quasi - judicial body, without the leave of the court or the judge who, .... made the order or, if that has been refused, without the leave of a judge of the Court. ... " 6.2 At the end of the Ruling appealed against, leave to appeal was granted. We are of the view that this covers leave to appeal against costs only. 6.3 Learned counsel for the appellant argued the two grounds of appeal together, and we shall determine them together as they are connected. 6.4 Counsel refe rred us to the case of Milingo Lungu v. Attorney General,2 where the Constitutional Court followed the Kenyan case of (Owners of the Motor Vessel "Lillions v. Calex Oil (Kenya Limited), and held that: J6 "Jurisdiction is everything and without it, a court has no power to make one step.... Where the court takes it upon itself to exercise jurisdiction which it does not possess, its decision amounts to nothing." 6.5 In light of this authority, he contended that the lower court misdirected itself by making the costs order, as it had no jurisdiction to do so. That the court should have merely decided its lack of jurisdiction without making any order that amounts to something. Counsel prayed that the appeal be upheld. 6.6 Learned counsel for the respondents argued that the award of costs is in the discretion of the Court. We were refe rred to Order 40 Rule 6 of the High Court Rulesl1 l, which vests the discretion of awarding costs in the Court to be exercised in a manner it deems fit. Additionally, counsel cited several cases on the principle of costs, including Emmanuel Mutale v Zambia Consolidated Copper Mines Limited3 where the Supreme , Court held that: "As a general rule, a successful party should not be denied his costs unless his conduct in the course of the proceedings merits the Court's displeasure or unless his success is 111.ore apparent than real, for J7 instance, where only nominal damages are awarded." 6. 7 Premised on the foregoing authorities, counsel for the respondents contended that the High Court's finding that it had no jurisdiction to hear a dispute relating to land held under customary tenure as a court of first instance did not divest it of the power to award costs. The Court's lack of jurisdiction pertained solely to hearing the matter on its merits, and not to its authority to make an order as to costs. 6. 8 It was further argued that, having successfully challenged the appellant's originating court process and secured the dismissal of the matter, albeit not on the merits but on a technicality, the respondents were entitled to recover the expenses they were compelled to incur as a result of the appellant's action. We were therefore urged to dismiss the appeal. 6.9 We have considered a few precedents in which the courts found that they had no jurisdiction to see if costs were awarded. 6.10 In the case of JNC Holdings v. Development Bank of Zambia, 1 the Supreme Court found that the High Court Judge had no jurisdiction to handle the matter and refe rred the J8 matter back to the High Court for re-trial before another Judge. Each party was ordered to bear its own costs. 6.11 In the case of Morgan Naik v. Simon David Burgeess and 5 Others,4 we found that we lacked jurisdiction and took a leaf from the Supreme Court in the Ventriglia case that: "This conclusion means we cannot touch the appeal in question because, in the eyes of the law, and for all intents and purposes, its purported escalation to this court amounted to nothing." However, we proceeded to dismiss the appeal with costs. 6.12 In the case of Charles Mushitu v. Swift Capital Limited,5 we held that we lacked the requisite jurisdiction to hear the appeal and dismissed it. We ordered each party to bear its own costs." 6.13 In the Kenyan case of Owners of the Motor Vessel "Lillian S" v. Calex Oil (Kenya) Limited6 after finding that the , respondent had no reasonable cause of action in rem, the Court dismissed the application and ordered that the costs would abide the outcome of the trial of the suit. 6.14 From the aforecited precedents, it appears to us that the implications of the court downing its tools in respect of the matter before it for lack of jurisdiction are that the court shall J9 not hear and determine the case before it on its merits. Nevertheless, the discretion to make a costs order still subsists. 6. 15 We are fortified by the case of General Nursing Council of Zambia v. Ing'utu Milambo Mbangweta,7 where the Supreme Court held that: "It is trite law that costs are awarded in the discretion of the court. Such discretion is however to be exercised judicially. Costs usually follow the event." 6. 16 It is on this basis that the courts made orders in relation to costs in the cited case law despite dismissing the cases or appeals for lack of jurisdiction. 6. 17 Having said that, we shall now consider the question whether the lower court exercised its discretion judicially, as it is trite that costs lie in the discretion of the court, but such discretion must be exercised in accordance with the law. 6.18 We hold that the court below exercised its discretion correctly, as the appellant, who was the plaintiff, ought to have known that the court had no jurisdiction before he commenced the action. If at all, he did not know, then the legal maxim ignorantia Juris non excusat which translates to ignorance of the JlO law excuses no one, applies to him. It entails that a person cannot escape legal liability by claiming ignorance of the law. 6.19 Furthermore, the respondents obviously suffered costs consequential to the action and were not guilty of any misconduct during the proceedings. 7.0 CONCLUSION 7 .1 In sum, the appeal is dismissed for lack of merit as we uphold the lower court's costs order. We order the appellant to bear the costs of this appeal. The same shall be taxed if not agreed upon between the parties. COURT OF APPEAL JUDGE C.K. MAKUNG BANDA-BOBO COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J11