Aristogerasimos vangelatos v Demetre vangelatos and Ors (SCZ 8 174 of 2014) [2017] ZMSC 258 (22 March 2017)

Li8 J 1 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) SCZ/8/ 174/2014 APPEAL NO. 109/2015 BETWEEN: ARISTOGERASIMOS VANGELATOS APPELLANT AND DEMETRE VANGELATOS METRO INVESTMENTS LIMITED KING QUALITY PRODUCTS LIMITED lstRESPONDENT 2nd RESPONDENT 3rd RESPONDENT CORAM : Hamaundu, Wood and Kaoma, JJS On the 7th October, 2015 and 22nd March, 2017 For the Appellant : For the Respondent : Mr. S. S. Zulu, S. C., Messrs Zulu and Company Mr. M. H. Haimbe, Messrs Malambo and Company JUDGMENT Hamaundu, JS, delivered the Judgment of the court. Cases referred to: 1. Rambai Patel v Mukeshi Kumar Patel [1985] ZR, 220 2. Harnam Kaur v Champion Motor Spares Limited and Another (1971) E. A. ZR 29 3. Stanley Murungi M’manayara v Samuel Kainga Ncebere (2015) KLR 4. Zambia National Commercial Bank PLC v Rosemary Bwalya (T/A Lynette Guest House) [2011]3 ZR437 5. BP v Interiand Motors Limited [2001] ZR 37 6. Montgomery v Foy (1895)2 QBD 321 J 2 7. Development Bank of Zambia and Another v Sunvest Limited and Another [1995 - 1997] ZR 187 8. Simbeye Enterprises Limited and Another v Ibrahim Yousuf [2000] ZR 159 This appeal is against a ruling of the High Court which dismissed the appellant’s preliminary issues. The background to the appeal is thus: In 2005, the appellant commenced a petition to wind up a company known as Dar Farms Limited. A string of interlocutory applications then followed. The first was by the 1st respondent, he applied to stay the petition proceedings so that the parties go to arbitration. That application was dismissed, with costs. The 1st respondent appealed to the Supreme Court. The second application was again by the 1st respondent, who applied to stay the petition proceedings pending his appeal to the Supreme Court and also to remove the 2nd and 3rd respondents from the proceedings. The application to stay the proceedings succeeded while the application to strike out the two other respondents failed. The court did not pronounce itself on the costs. The petition proceedings were stayed. The third application was by the appellant for the court to review its order staying the proceedings. That application was dismissed, with costs. The fourth application was again by the J 3 appellant for an order to prevent the dissipation of assets. The application was dismissed. The court did not pronounce itself on costs. That application was made in 2006. In 2008, the 1st respondent’s appeal to the Supreme Court succeeded; and the matter was ordered to go to arbitration. The proceedings were stayed pending the arbitration. Four years later, in January, 2012, the 1st respondent applied for leave to file his bill of costs out of time. This was granted. He then applied for taxation. In his bill, the 1st respondent claimed costs for all the four interlocutory applications. The costs were taxed and two certificates of taxation were issued in the sums of K239,154,003.71 and K167,902,969.50 respectively. The 1st respondent then issued a writ of fieri facias against the appellant. He also applied for, and obtained, a charging order on Farm No. 3 of sub-division b of subdivision 15 of Farm 488a Lusaka in which the appellant was said to have a beneficial interest. The 1st respondent then issued summons for an order to sell the farm. To that application, the appellant raised four preliminary issues namely; J 4 (i) That the action was forum shopping and an abuse of process (ii) That the action was a multiplicity of actions over the same subject matter (iii) That the respondent’s advocates, Messrs Malambo and Company, were in conflict of interest against the appellant and; (iv) That the taxation of costs was erroneous and irregular The first two preliminary objections were based on the appellant’s claim that the property for which an order for sale was sought was the subject of proceedings in another matter; Cause Number 2012/HP/0687 On whether the application for sale was an abuse of process and forum shopping, the court below looked at the issues in Cause Number 2012/HP/0687 and found that they were distinct from the issue herein in that the action there is only for an account to be rendered in respect of rent received. As regards the conflict of interest alleged against Messrs Malambo and Company, the court found that the issue had earlier been raised in another matter in which the appellant and respondents were parties and that a ruling was made allowing Messrs Malambo and Company to continue. J 5 Therefore, the court found that that issue was res judicata. On the issue of costs, the court was of the view that the success of the respondent’s appeal in Supreme Court was with costs and therefore there was nothing wrong in the respondent applying for taxation. The appellant appealed to this court, advancing four grounds of appeal. These are as follows: 1. The learned judge fell in error when she held that the taxation of costs by the respondents was not erroneous or irregular or improper and is not null and void; 2. The learned judge fell in error by considering only one side of evidence without balancing her analysis, thereby resulting in an unbalanced evaluation of evidence: 3. The learned trial judge misdirected herself when she directed that the pending application for an order of sale of Farm No. 488a, Lusaka should be heard; and, 4. The learned trial judge was wrong at law by finding that there was no duplicity or multiplicity of actions between the parties in Cause No. 2005/HPC/0276 and Cause No. 2012/HP/0687 and, therefore, that there was no abuse of court process or forum shopping in these proceedings. To understand what the appellant’s argument is in the first ground we wish to lay down the background against which it is made. We have stated above that the first of the interlocutory applications in the petition to wind up Dar Farms Limited was an i J 6 application by the 1st respondent to stay the petition so that the parties would go to arbitration. The High Court dismissed that application and awarded costs to the appellant. The 1st respondent appealed against the dismissal to this court. That appeal succeeded. We condemned the appellant in costs. We did not make any specific pronouncement on the fate of the costs that had been awarded to the appellant in the court below. It is against that background that the appellant, by way of a preliminary issue, challenged the taxed costs in the court below on the ground that in, his bill of costs, the 1st respondent had included costs of his dismissed application in the High Court; which costs had been awarded to the appellant. Consequently, the appellant now faults the court below for dismissing the preliminary objection. On behalf of the appellant, Mr. Zulu, learned State Counsel, argued that since this court did not make any pronouncement on the fate of the costs that were awarded to the appellant, then the appellant is still entitled to those costs; and, therefore, it was wrong for the 1st respondent to claim those costs in his bill. In response to the above argument, Mr. Haimbe, learned counsel for the respondents, quoted a passage from our judgment in the case of Rambai Patel v Mukeshi Kumar Pateb1), where we stated J 7 that a successful party will not normally be deprived of his costs unless there is something in the nature of the claim or in the conduct of the party which makes it improper for him to be granted costs. Relying on that statement, counsel argued that the effect of the success of the appeal was to nullify the lower court’s ruling. In the circumstances, it was argued, the 1st respondent became the successful party in this court and in the court below and was therefore entitled to costs both here and in the court below. In the course of his arguments on this point, counsel referred us to the cases of Harnam Kaur v Champion Motor Spares Limited and Another)2) and Stanley Murungi M’manayara v Samuel Kainga Ncebere)3) to support his proposition on the effect of the success of an appeal. Counsel for the respondents went on to argue that, in any event, it was procedurally wrong for the appellant to challenge a certificate of taxation through the preliminary issue. In support of that argument, counsel referred us to the provisions of Order XL of the High Court Rules, Chapter 27 of the Laws of Zambia, particularly, Rules 3, 4 and 5 thereof. Counsel also referred us to the case of Zambia National Commercial Bank PLC v Rosemary Bwalya (T/A Lynette Guest House))4) where we held that a party who is dissatisfied with the decision of the Taxing Master, must apply to the same Taxing J 8 Master for review, and failing that review, such party must apply to a High Court Judge in chambers for review. We have considered the arguments on this ground of appeal. We wish to say in passing that we are persuaded by the arguments on behalf of the respondents that the success of the 1st respondent’s appeal to this court on the interlocutory application overturned the decision of the court below on that application. We are considering this point in passing because, it is not the real issue upon which we intend to determine this ground. There is force in the argument by the 1st respondent that, by the success of his appeal, he had become the successful party and was, therefore, entitled to the costs in the court below as well. The argument is supported by Rule 6 of Order XL of the High Court Rules which provides: “The cost of every suit or matter and of each particular proceeding therein shall be in the discretion of the court or a judge; and the court or a judge shall have full power to award and apportion costs, in any manner it or he may deem just, and, in the absence of any express direction by the court or a judge, costs shall abide the event of the suit or proceeding” Going by this provision, it is immaterial that we did not specifically make a pronouncement on the fate of the costs that had been awarded to the appellant in the court below because, the J 9 moment we overruled the decision of the court below, it became apparent that the 1st respondent ought to have been the successful party in the application that was before the court below and that, by virtue of Rule 6 that we have cited, the costs should have been awarded to him. Therefore, the decision of the court having been overturned on appeal, the 1st respondent became entitled to the costs in the court below. However, as we have said, the real issue is whether the preliminary objection was well founded. We have stated that the 1st respondent commenced taxation proceedings for his costs. The proceedings culminated into the two taxing certificates by the Taxing Master. Procedurally Rule 5 cited by counsel for the respondents, indeed, provides that any party who is dissatisfied with the decision of the Taxing Master to allow or disallow any item in whole or in part may apply to a judge to review the taxation. In this case the appellant, having been unhappy with the fact that the costs that were awarded to him when the application was before the court below were allowed in favour of the 1st respondent, should have applied to a judge to review the taxation. The appellant did not do so. Instead, he raised objection to the costs in an application by the 1st respondent to enforce the taxed costs. J 10 That was wrong and untenable. Therefore, from either perspective, the court below was on firm ground when it dismissed that objection. The second ground of appeal is on costs as well. In this ground, the appellant alleges that the court below ignored the averment in his affidavit that the respondent had never been awarded costs in the High Court. It was submitted on behalf of the appellant that this was an unbalanced evaluation of evidence. We have already stated in the first ground that the objection to the taxed costs was improperly raised. We therefore dismiss this ground. In the third ground of appeal, learned state counsel, argued on behalf of the appellant that the court below erred when it proceeded to hear the application for the sale of the Farm because the court had made no order for costs in favour of the respondents. It was argued that, in the absence of an order awarding costs to the respondents, the taxed costs were made in a vacuum and, therefore, the certificate by the Taxing Master and the subsequent charging order were null and void. We repeat that the appellant had chosen the wrong opportunity to challenge the costs. As far as the court below was J 11 concerned, there was a certificate by the Taxing Master signifying that the 1st respondent was entitled to the costs indicated thereon. Since the application before the court was for enforcement of those costs, the court was bound to hear it for as long as the Certificate of Taxation had not been impeached. In this case, we have said that, in order to impeach the certificate, the appellant should have applied for review under Rule 5 of Order XL of the High Court Rules. He did not do so. We dismiss this ground of appeal as well. The fourth ground of appeal is against the holding by the court below that there was no multiplicity of actions or abuse of process between the application before the court and the issues in Cause No. 2012/HP/0687. Submitting on behalf of the appellant on this ground of appeal, Mr. Zulu, learned State Counsel, referred us to the case of BP v Interiand Motors Limited!5) where we held that a party should not be allowed to deploy his grievances piecemeal and keep on hauling the opponent over the same matter before various courts. He pointed out that in the petition to wind up Dar Farms Limited, which is the present cause, the appellant had included a prayer for an account to be taken of the company and its subsidiaries so that the 1st respondent would pay the appellant’s share of the profits J 12 since 2005. Learned State Counsel, further, pointed out that in Cause No. 2012/HP/0687 the 1st respondent endorsed on the writ of summons a claim for an account by the appellant of all rentals, income and profit received by him from Subdivision 3 of subdivision B of subdivision 15 of Farm 488a, Lusaka. Learned State Counsel, then, argued that, in his view, the respondent ought to have set up his claim as a counter claim in the petition to wind up than to claim it in a separate action. According to state counsel, the respondent had abused the process of the court by commencing the action in Cause No. 2012/HP/0687. We were also referred to the following cases; (i) (ii) Montgomery v Foy (6>; Development Bank of Zambia and Another v Sunvest Limited and Another(7);and (iii) Simbeye Enterprises Limited and Another v Ibrahim Yousuf8). All the above decisions are similar to our holding in the B. P v Interiand Motors Limited case. It was submitted that the petition proceedings had been stayed while the dispute between the appellant and the 1st respondent was ordered to go to arbitration. According to learned State Counsel, the reconciliation of accounts between the appellant and the 1st respondent should, therefore, have been decided in the arbitration proceedings. It was argued, in J 13 the circumstances, that the commencement by the 1st respondent of separate action for the appellant to render an account was a multiplicity of actions. In response, Mr. Haimbe, learned counsel for the respondents submitted that this issue had been raised in the proceedings in Cause No. 2012/HP/0687 before Madam Justice Lengalenga who found that the two causes involved different subject matter. We have heard the arguments on both sides on this ground. We must state that we fail to appreciate the point that the appellant is making in this ground, or indeed in this part of the objection. This is because the application that was before the court below related to the execution of the court order. In this case, the order was in the form of a certification of taxation of costs which demanded payment of those costs by the appellant. In pursuing the execution of that order, the 1st respondent was merely asking the court to allow him to attach the appellant’s interest in Farm 488a and sell the same to recover the costs that he had been awarded. The application had nothing to do with the relationship between the appellant’s petition to wind up Dar Farms Limited and the 1st respondent’s action for the appellant to account for the 1st respondent’s share of the profits in Dar Farms Limited. In our J 14 view, therefore, the objection on this ground had been misconceived ab initio. Consequently, we do not hesitate to dismiss this ground of appeal for want of merit. In all, the whole appeal has failed and is dismissed, with costs to the respondents. o E. M. Hamaundu SUPREME COURT JUDGE SUPREME COURT JUDGE R. M. C. Kaoma SUPREME COURT JUDGE