CMM Property Consultants Ltd v Ventus Legal Practitioners (Appeal No. 221 of 2022) [2023] ZMCA 185 (26 July 2023)

IN THE COURT OF APPEAL OF ZAMBIA Appeal No. 221 of 2022 HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: CMM PROPERTY CONSULTANTS LIMITED APPELLANT AND •• VENTUS LEGAL PRACTITIONERS RESPONDENTS Coram: Chashi, Majula, Patel, JJA On 14th June, 2023 and 26th July, 2023 For the Appellant Ms. S. K. Mukuka & Ms. A. C. Sakanga Messrs. Mundia and Company For the Respondent Ms l. Nakawala Mwenda Messrs Ventus Legal Practitioners JUDGMENT PATEL SC, JA delivered the Judgment of the Court Cases referred to: 1. Kuta Chambers (Sued as a Firm) v Simbulo (Suing as Administratrix of thf! Estate of the latf! Franr:is Sirnbulo- SCZ App1,a/ No. 122 of 2012 2 . . O. H. Yangailo and Company v Stf!Dk Ran,h LimitedHPC 247 of 201 3. Abel Banda v The People (1986) ZR. 105 J 1 . ' 4. Kasote v The People (1977) Z. R. 75 5. Dr. Kenneth Kaunda and United National Independence Party v Central Chambers & 5 Others SCZ Appeal no. 23 7 /2013 6. Mushipe (TIA Mushipe & Associates and suing as £xecutrix and trustee of the late Funny Lungu Yolamu vs Rossi CAZ Appeal No. 118 of 2020 7. Marcus Kapumbo Achiume SCZ No. 2 of 1983 8. In the Matter of Legal Practitioners Act and the Matter of Lego/ Practitioners (Costs) Order, 2001 and the Legal Practitioners Committee of the Law Association of Zambia 2002/HP/0202 & ZLR 2018 Special Edition page 33 Legislation referred to: 1. The Legal Practitioners Act, Chapter 30 of the Laws of Zambia 2. The Legal Practitioners (Costs) Order, S.1. No. 9 of 2001 3. The legal Practitioners Practice Rules S. I. No. 51 of 2002 4. The High Court Rules, High Court Act Chapter 2 7 of the Laws of Zambia 1.0 Introduction 1.1 This is an appeal against the Judgment of Mwenda-Zimba J of the Hfgh Court, Commercial Division, delivered at Lusaka, on the 18 May 2021. Jt raises the perennial issue of a legal practitioner's entitlement to legal costs and tees when he represents the successful party in whose favour a costs order is made and more importantly, it raises the propriety of withholding or deductlng part(s) of the judgment sums recovered tor the clfent to recover outstanding fees due by the client, whether by agreement or otherwise. . I ' 1.2 By way of background, it is noted that the Respondent, a Firm of Legal Practitioners, (Plaintiff in the Court below) commenced a matter against the Appellant, its erstwhile client, (Defendant in the Court below) claiming the sum of K367,138.05 being in respect of legal fees outstanding from the Appellant, who filed a defence disputing the claims and counterclaimed for monies deducted from the Judgment sums recovered by the Respondent under cause Number 2015/HPC/0451, paid by the judgment debtor, (Chita Lodge Limited}. They also sought an order for the Respondent to render an account of monies received. 1.3 In her Judgment, the learned trial Judge found in favour of the Respondent. The Judge also held that the Respondent, though not being entitled to deduct monies from the Judgment sums, was in order to do so, as its retainer agreement to render legal services to the Appellant was terminated. She also ruled that the Respondent was entitled to retain monies deducted from the Judgment sum recovered under cause Number 2015/HPC/0451. 2,0 Background 2.1 The background of the matter is that the Respondent and Appellant, (Plaintiff and Defendant in the court below) enjoyed a lawyer/client relationship during the course of which the Parties executed an Agreement dated 11 March 2014, entitled "letter of engagement" a copy of which is at page 110 of the Record of Appeal. The retainer continued until terminated by letter dated 3rd March 2020 by the Defendant a copy of which is at page 151 of the Record of Appeal. "Letter of termination." J3 I 2.2 The letter of engagement provided that the fees for the provision of legal services on debt recovery instructions was 10% of the amount recovered prior to I itigation and that should the matter proceed to lftigation, the defendant would be charged an hourly rate of ZMW750 00 for a partner and ZMWS00.00 for an associate, which rates were subsequently increased in 2017. 2.3 It is common ground that one of the debt collection matters that was commenced by the Law Firm, was against Chita Lodge Limited culminating in a Judgment dated 12 April 2019 in favour of its client, the now Appellant, under cause Number 2015/HPC/0451, with costs to be taxed in default of agreement. Meanwhile, prior to obtaining Judgment, the respondent had issued fee notes to the appellant amounting to ZMW98,290.00 which sum remained unsettled for almost a year prior to the delivery of Judgment, and the Appellant accumulated further costs on fee notes for work undertaken po st-Judgment. 2.4 According to the Respondent, it was agreed by the parties, that the Respondent would recover fifty percent (50%) of every payment made by the judgment debtor, until all fees were paid and that the Respondent had on that agreement, recovered the sum of K127,920.00 (the deducted sum) from several payments received and remitted the balance to its client, the Appellant. 2.5 As the Respondent was in the process of taxing costs against the judgment debtor, the Appellant terminated the lawyer-client relationship with the Respondent and demanded the return of its file. It was contended that J 4 , I consequent to the termination, the Respondent being unable to tax and recover its costs, proceeded to render its final bill to the appellant on 1111 • March 2020 amounting to K495,058.05. Hilving recovered K127,920.00 (the deducted sum) the outstilnding balance was 1<36 7,138.05 which the appellant failed and/or neglected to pay, prompting the respondent to commence this action in the court below on 5 May 2020. 2.6 The Appellant entered defence and counter-claim on 26:, June 2020, denying having agreed that the Respondent deducts 50%, or any part thereof from payments made by the judgment debtor (Chita lodge Limited). It stated instead that it was compelled to agree to the deductions, only because the monies were remitted through the respondent. The Appellant stated further that the Respondent only availed to it, a copy of the Judgment, a year ilfter the Judgment debtor had started remitting monies, and the Respondent concealed having received funds in order to liquidate pitrt of the legal costs owed by the Appellant. 2. 7 The Appellant counter-claimed a full ilCCOunt of monies received from the judgment debtor, pilyment of itll monies remitted from the judgment debtor and retilined by the Respondents and interest thereon. 2.8 The Respondent in its reply and defence to counterclaim referred to an agreement between the Parties whereby the Appellant requested more thiln 50% of the monies recovered due to financiil I constraints, and also contended that it kept the Appellant informed ilt a II relevant times and that its fee notes reflected the services rendered and that agreed deductions related to overdue fees accrued before Judgment and further that it WilS in J 5 • • the process of taxing its costs when its retainer was terminated. The Respondent has also stated that its final fee note was served at the Appellant's premises and that its Administration Manager had directed its employees to reject any correspondence from the Respondent. 2.9 The non-payment of its final fee note caused the Respondent to issue process against the Appellant, by its Writ dated sti, May 2020, which culminated in the Judgment of 1811 • May 2021, the subject of th is appea I. 3.0 Decision of The Lower Court 3.1 On the issue of outstanding fee notes, the learned Judge found that there was an exchange of communication between the parties, and that the Appellant did not object to the bi II and as such, the Appellant was entitled to claim the amount in the final bill. 3.2 The tria I Judge considered the fact that the matter before it centered on the ability of the Respondent to deduct monies received by it from the Judgment debtor following the successful Judgment in the cause cited above. It was the trial court's view, that although the Supreme Court in the case of Kuta Chambers {Sued as a Firm) v Simbulo (Suing as Administratrix of the Estate of the late Francis Simbulo) 1 had held that the appellant, (in that case), was not at liberty to recover monies owed to it as a firm, from the judgment dues pa id for its client, the court be low distinguished the facts of the case at hand from those in the Kuta case. The trial court agreed with the Respondent from evidence presented and from the documents on record, that the Respondent had rendered fee notes which remained J 6 outstanding and that the respondent recovered agreed portions of the recovered monies to settle its outstanding bills. 3.3 Regarding the 50% deductions from the Judgment sum towards settlement of legal fees, the trial Judge found that it was wrong for the Respondent to deduct its fees from the Appellant, as there was a costs order in favour of its client. That only where it was not possible to recover costs from Chita Lodge Limited, was the Respondent at liberty to recover from the Appellant. 3.4 The trial court heard the evidence of the Appellant's witness who claimed to have had no knowledge of the deductions being made. The witness after being referred to the documents at pages 143 to 145 of the Record of Appeal, stated that they had no choice in the matter of deductions. When referred to the statement of account at page 145 of the Record of Appeal, on the evidence by the Respondent that it would receive between 40% and 50% of the Judgment sums recovered, the Appellant denied that the arrangement was by Consent of the parties. 3.5 The Trial Court considered the law on the issue of fee notes and referred to Order SO rule 2 of the Rules of the High Court,4 which requires a legal practitioner to wait for the expiration of one month after having issued the fee note and before initiating process for the recovery of fees. The party charged is entitled to apply to the Court for the bill to be taxed if it does not agree with it. The Court also considered the case of P. H. Yangailo and Company (Suing as a Firm) vs Steak Ranch Limited and Another2 in support of the principle that the Appellant had the onus to dispute bills J 7 • • presented to it at the soonest opportunity in an attempt to prove that the value of the lawyer's work was significantly less than what it was billed for. 3.6 The Court noted that the Respondent rendered a statement dated 28 February 2020 to the Ap_pellant itemizing 6 fee notes. The Appellant, by e mail of the same date, queried the bills and requested further details, which breakdown of the bills, the duration, applicable rate as well as the latest fee note, was sent to it by e-mail of 2 March 2020. The Court also noted that although it was not clear what documents were attached under cover of the correspondence of 2nd March 2020, the appellant, did by its letter of 3rd March 2020, terminate its relationship with the Respondent and requested for itemized bills which the Appellant provided under cover of its letter of 11 March 2020, and enclosed its fee note which appears at page 150 of the Record of Appeal. 3.7 The trial court having heard from the witnesses and having noted the exchange of communication between the parties and having found that the Appellant did not object to or challenge the final bill, found in favour of the Respondent to claim the amount in the final bill. The Court also considered the issue of whether the Respondent was entitled to deduct 50% of every payment received towards the Judgment as legal fees. The Court concluded that although the case of Kuta Chambers1 prohibits a lawyer from collecting fees from the Judgment debtor, where costs were awarded to the successful party, as was in the case in casu, the trial court distinguished the facts from this case on the basis that the Appellant having terminated its relationship with its lawyers, the Respondent in casu, there was no possible way for them to recover costs from the judgment J 8 debtor. The Court also found thot the Kuta Chambers case estoblished the • prima facie duty of the client to pay legol costs and fees for services :·endered. 3.8 The trial court entered Judgment for the Respondent in the sum of K205,043.48 which amount was inclusive of VAT at 16% after conducting an account reconciliation ond awarded interest as specified and costs. The Court also dis missed the counter claim for on order to account as it had not been successfully argued. 4.0 The Appeal 4.1 Being dissoti~fied with the Judgment of the lower court, the Appellant filed a Notice of Appeal and Memorandum of Appeal on 11 June 2021 odvonci ng four grounds of a ppeo I els fo I lows: i. That the trial court erred in both fact and low when it held that the Respondent was not permitted at law to deduct !ts fees from the judgment sum under cause No. 2015/HPC/0463 but contrasted the same with the present matter on the basis that the Appellant herein terminated the contract of engagement when such termination was only done more than a year following delivery of judgment under cause No. 2015/HPC/0463. ii. That the trial court erred in fact and in law when it held that the Respondents are entitled to retain sums already deducted from the judgment sum owing to termination of the contract when the court already pronounced itself on the fact that it was legally wrong for the Respondent to deduct money from the Judgment sum to begin with. •Q ' - • \ iii. That the trial court erred in fact and law when it failed to address its mind to the Respondent's failure to serve the Appellant with a bill prior to bringing the action for recovery of sums claimed. iv. That the trial court erred in fact and law when it found that the Appellant is at liberty to seek indemnity for the amounts deducted and the final fee note from the defendant under cause No. 2015/HPC/0463 when the same is not tenable at law. 5.0 Appellant's Heads of Argument 5.1 In support of this appeal, the Appellant filed heads of argument dated 28:i September 2022. The first and second grounds were argued together. It was argued that the Supreme Court clearly pronounced itself in the case of Kuta Chambers1 supra, regarding deduction of legal fees from the judgment sum and that it would therefore be a grave misdirection to allow the Respondent to retain funds which they should not have collected in the first place. That to divert th is position would be against the principle of stare decisis as espoused in the cases of Abel Banda v The People 3 and Kasote v The People 4. 5.2 The Appellant argued further that it was an error for the tria I court to have distinguished this case from the Kuta Chambers1 case on the basis that the Appellant terminated the contract of engagement when in fact the said contract was only terminated more than a year following the date of recovery of the last payment by the Respondent. It was further argued by counsel, that if the Respondent was not entitled to deduct costs at a 11, it had no effect on when the termination took place. Additionally, the Respondent failed to adduce any evidence of an agreement for the 50% J 10 • • deduction and conceded at trial, that the Respondent deducted the money because the law allowed them to do so. 5.3 In support of the third ground of appeal, the Appellant cited the case of Dr. Kenneth Kaunda and United National Independence Party v Central Chambers & 5 Others5 vvhere the Supreme Court stated, in reference to Order 50 Rule 2 of the High Court Rules4 , that before a legal practitioner can claim for legal fees, he must render a bill to his client detailing work done and the basis for the billing. That in this case, the Respondent did not issue a bill of services to the appellant 30 days before commencing an action, adding that mere fee notes will not suffice. 5.4 The Appellant argued further that the lower court went on to avvard the Respondent the sum of K205,043.00 when there is evidence on record that the Appellant disputed some fee notes including one amounting to K41,605.00 which was never availed to them and one of K180,000.00 relating to work done post Judgment without instructions. It was argued further that the case of P. H. Yangailo and Company v Steak Ranch Limited 2 is distinguishable to the extent that in that case, the defendant had been served with bills and there was proof of service. 5.5 In support of the fourth ground of appeal, the Appellant argued that the trial court erred in fact and law in finding that the Appellant can seek indemnity of costs from the defendant under cause no. 2015/HPC/0463 when the same is not tenable at law. . . 6.0 Respondent's Arguments 6.1 The Respondent filed its heads of argument on 2 May 2023 where it emphasized that the trial court was on firm ground and in response to ground 1 and 2 of the appeal, it argued that the court below did address its mind to the issue of whether the Respondent was entitled to deduct legal fees from every installment payment received under cause no. 2015/HPC/0463. The Respondent has further argued that the Kuta Chambers case establishes the unequivocal right of a lawyer being entitled to charge for his services and for expenses that he incurred, fees and disbursements respectively. 6.2 The Respondent noted that the trial court at page J41 and J42 (pages 49 &50 of the record of appeal), found that the Respondent was entitled to be paid for the work done but was wrong for deducting its fees from payments made by the judgment debtor, owing to the favourable costs order in favour of the Appellant. The Respondent however argued that the court below was correct in distinguishing the facts of this case from the facts in the Kuta Chambers decision, in that the Appellant having terminated its relationship with its lawyers the Respondent, prevented them from taxing their bill of costs against the judgment debtor. It was their argument that the trial court was correct in having placed emphasis on the fact that the Respondent's claims to costs only arose at the point when the Appellant terminated its relationship with the Respondent. 6.3 The Respondent has also argued that having complied with the provisions of Order SO Rule 2 of the High Court Rules4 , it supported the finding of the trial court that it was stripped of locus stondi to pursue the judgment J 12 , • debtor to recover costs and that there was no other conceivable way for it to recover its costs. 6.4 The Respondent's understanding of the decision of the Supreme Court in the cited case of Kuta Chambers rests on the premise that a legal practitioner cannot pursue a judgment debtor for costs in his own right, as the said costs include legal fees which are to be refunded to the successful party to an action. It is therefore the Respondent's contention that the legal practitioner can only claim costs from the losing party, while acting upon his client's instructions. 6.5 The Respondent has called in aid Rule 16(3) of the legal Practitioners Rules3 which proscribes a legal practitioner from acting without the express and specific instructions of its client and referred to a decision of this Court in the case of Mushipe (T/A Mushipe & Associates and suing as Executrix and trustee of the late Funny Lungu Yolamu vs Rossi6 to support its argument. 6.6 The Respondent has urged the Court to find grounds 1 and 2 of the appeal to be devoid of merit and to not allow them. 6.7 In response to ground 3, the Respondent has urged this court to note that the trial court did address its mind to the final bill, and that this being a finding of fact, any reversal thereof would have to satisfy the test laid in the case of Marcus Kapumba Achiume7 where it was held that: "the appelfate court will not reverse findings of fact made by a trial Judge, unless it is satisfied that the findings in question were either perverse or made in the absence of any relevant evidence or upon a misapprehension of J 13 , the facts or that they were findings which on a proper vie~·✓ of the evidence, no trial court acting correctiy con reasonably make." 6.8 They have further argued that the trial court addressed its mind to the provisions of Order SO rule 2 of the High Court Rules4 and to the case of Dr Kenneth Kaunda & United National Independence Party vs Central Chambers & 5 Others; In support of this line of submission, they have referred to pages 44 & 45 of the record of appeal, where the court below in addressing its mind to these authorities also considered the evidence of the parties. The Respondent has also argued that it commenced its action in the court below on s11 • May 2020, a month after the issuance of its final itemized bill to the Appellant and that it had duly complied with the provisions of Order 50 rule 2 of the High Court Rules. 4 6.9 We do not see it neces~ary to repeat the arguments in rebuttal to ground 4 of the appeal as the same was abandoned by the appellant at the hearing of the appeal. 7.0 The Decision of This Court 7.1 We have reflected deeply on the grounds of appeal, the record of proceedings in the court below and the submissions of counsel respectively. The issue at hand, though troubling. pertains to the livelihood of every legal practitioner. The dispute before us centers on whether the Respondent was justified in recovering or withholding monies meant for the Appellant being the successful party in the action against Chira Lodge on the basis that the monies withheld represented some form of lien or security on the anticipated costs from the losing party. ' ' 7.2 \Ne propose to deal with grounds 1 and 2 together as they both deal with the issue of deduction of monies from the judgment sums recovered. The impugned portion of the lower court's judgment appears at page 50 of the Record of Appeal as follows: "The above notwithstanding, the Kuta Chambers case differs slightly with the present one in that in the present case, the Defendant terminated the relationship with the Plaintiff on the 3'" of March, 2020. This means that the Plaintiff cannot proceed to tax the bill of costs against Chita Lodge and recover its costs due to lack of instructions. It means that in the circumstances, the Defendant has to pay costs of the Plaintiff" 7.3 The Appellant has insisted that the learned Judge's diversion from the pronouncement of the Supreme Court in the Kuta Chambers case goes against Lhe princi pie of stare decisis. In that case, the Su pre me Courl stated that there was no evidence of an agreement allowing the appellant to retain 50% of damages received from the judgmenl debtor and that even if such an agreement existed, it would be against the Legal Practitioner's Practice Rules. 7.4 In dealing with this issue, we note that the position espoused by the Supreme Court, in the Kuta Chambers case is categoric, and reflects the current posilion of the law. The law regarding deduction of legal foes, from a judgment sum, by a legal practitioner as espoused in Kuta Chambers is very clear, and the learned trial Judge guided herself to this extent. The queslion raised by the first and second grounds of appeal therefore inlerrogates Lhe posilion taken by the lower Court to distinguish the J 15 ' circumstances of this case from Kuta Chambers, and thereby justifying the Respondent's deduction of legal fees from the judgment sum. 7.5 A reading of that paragraph from the judgment of the court below, shows that the primary, if not sole basis upon which the court deviated from the position in Kuta Case was the Appellant's termination of the engagement contract with the Respondent, which according to the court below, left the latter in a position of being unable to recover costs from the judgment debtor by way of taxing its bill of costs. It is on this basis that the trial Judge distinguished and thereby excused the Respondent's deduction of legal fees from the judgment sum. 7.6 In our considered opinion, the trial Judge fell into grave error in making this distinction. Applying the position of the law, and in accordance with the principle of stare decisis, (notwithstanding the "inequity" apparent, or perceived, to the legal fraternity), we must apply the law to the facts at hand. From the evidence in the court below, the Respondent itself could not point to any agreement that allowed them to withhold part of the monies received from Chita Lodge. The court below equally noted that counsel said they withheld funds as the law allowed them to do so. Clearly, there is, has been, and continues to be, misapprehension by legal practitioners over funds held by a legal practitioner, as clients' funds and on which funds, a legal practitioner, may, in appropriate circumstances, claim a lien, and on funds recovered following a judgment in favour of its client coupled with a costs order. In the context of the facts in casu, we stand guided by the decision of the Supreme Court in the Kuta Chambers case when the court stated as follows: • "'~Ve must also point out that the respondent, as the party that succeeded, should not be seen to have incurred expenses in the process of vindicating his rights. The full expenses ought to be recouped from the losing party ..... in the circumstances of the present case, the appellant's costs were recoverable from the losing party, the Attorney General. The appellant has no legitimate claim for costs against the respondent, let alone legal fees after costs were awarded. We have already explained what an order for costs against a party entails. In the present case, the fees and out of pocket expenses incurred by the late Francis Sibulo are properly recoverable from the costs which the appellant is obliged to collect from the Attorney General as the losing party. This by all logical and necessary implications, means that the appellant has no basis to withhold any portion of the respondent's payment." The Supreme Court went further and stated that even if such an agreement (to withhold judgment sums recovered) existed, it would contravene the provisions of the Legal Practitioners Practice Rules3 . Vl/c are of the considered view that the trial court fell into error in making this distinction and thereby condoning the deductions made. 7.7 We wish also to refer counsel to the oft cited authority on the issue of costs, albeit a decision of the High Court, which has been cited with approval and endorsed by the Supreme Court, as it did in the case of Kuta Chambers. Legal Practitioners' costs arc regulated by the Legal Practitioners (Costs) Order2 , made pursuant to section 70 of The Legal Practitioner Act1 . In the case of The Matter of Legal Practitioners Act and the Matter of Legal Practitioners (Costs) Order, 2001 and the Legal . I 17 • Practitioners Committee of the law Association of Zambia3 Nyangulu, J (as he then was) stated as follows: 'The Statutory Instrument made pursuant to section 70 of the Legal Practitioners Act is for purposes of taxation or agreed costs to be paid to the advocate (who is practicing law) acting for the party to the action". 7.8 To adopt the same reasoning in this case, the position set out in the case cited above, guides that taxation of a bill of costs is undertaken by the advocate representing the party to the action and that the successfu I litigant is not entitled to share with his lawyer or indeed to receive that part of legal costs com prised in the profit costs as those are only payable to a lawyer representing the successful litigant. It is trite therefore, that if a litigant represents himself, then he is only entitled to out-of-pocket expenses. ft does not include the cost of preparing or conducting the case in court, as this element of legal costs is only chargeable by a lawyer, having in force a practicing certificate. In this case, costs were awarded to the Appellant and the Respondent, being the Appellant's advocates, was the only party that could proceed to tax costs, if not agreed. We agree with the submissions of counsel for the Appellant that the finding of the court below is not tenable at law. Irrespective of the termination of its mandate, the costs order awarded in favour of the Appellant belonged to the Appellant's advocates who took the matter to court and successfully obtained a costs order. Only they (the Respondent} could pursue the claim for costs, agreed or taxed. We opine accordingly. . I 1 H • • ,, \Ne therefore find merit in grounds 1 & 2 of the appeal and uphold them accordingly. 7.9 We now turn our attention to ground 3 of the appeal, being the purported failure of the Respondent to render a bill prior to bringing the action for recovery of sums claimed. The court below found evidence of bills having been submitted to the Appellant and further found that the appellant not having applied to tax the bill, it was liable to pay the bills as presented. Once again, being mindful of the principle of stare decisis, our attention has been drawn to the decision of the Supreme Court in the case of Dr. Kenneth Kaunda & United Independence Party vs Central Chambers & 5 others5 referring to Order 50 rule 2 of the High Court Rules, when it stated: "Tht> effect of the foregoing order is that before a legal practitioner can claim for legal fees he needs to render a bill to his client. Such a bill will t>xplain the work done, the basis of the billing and the amount to be paid as remuneration for legal st>rvices rendered .... The facts of this case and the documents on the record of appeal do not rt>vea! that a bi//, as envisagt>d by order 50 rule 2, was rt>ndert>d and dt>!ivered to the appellants. Further the endorsement on tht> writ of summons which is at page 113 and 114 of the record of appeal makes no rt>ft>rt>nct> to bills nor dot's it revt>al that the claim is in respect of certain bills." 7.10 We have also been urged to note the prohibition to legal practitioners from commencing suit until after one month of delivering a bill of such fees signed by the practitioner or partner and or being accompanied by a letter J 19 ' signed in like manner referring the bill. We have already determined that the Respondent was not at liberty to deduct or withhold payments received from the judgment debtor for its erstwhile client. We have also been urged to set a$ide the action in the Court below a$ the bills that were presented to the appellant were not in accordance with Order 50 Rule 2 of the High Court Rules and thereby offended the holding in the case of Dr Kenneth Kaunda. 7.11 Order 50 Rule 2 of the High Court Rules provides as follows: "No practitioner shafl commence any suit for the recovery of any fees for any business done by him until the expiration of one month after he shall have delivered to the party to be charged therewith or sent by registered letter to or left for him at his office, place of business, dweliing-house or last known place of abode a bill of such fees, such bill either being signed by such practitioner (or, in the case of a partnership, by ony of the partners, either in his own name or In the name of the partnership) or being enciosed in or accompanied by a letter signed in like manner referring to sch bi//." (emphasis i$ ours). 7.12 1Ne have also noted that there was no reference to bills in the Respondent's statement of claim. To the contrary, the endorsement on the statement of claim reads: "And the Plaintiff claims: An order for payment of the sum of K367,138.05 owed to the Plaintiff by the Defendant being outstanding sums arising from the provision of legal services." J J.(J • It has been argued that what was presented was mere fee note.sand that an action for recovery of such sums claimed can only be commenced after 30 days of service of .such bill. We were referred to pages 365/366 of the Record of Appeal as an admission by counsel that there was no single Invoice in the sum claimed. The trial court went to lengths to carry out calculations from the .statements on record, and from the deductions made, the amount payable to the Respondent, including calculating the V/\T applicable. 7.13 \11/e have combed the record and cannot find a copy of the final bill that precedes the action that was taken out by the Respondent in the court below. What we have noted are different figures issued by fee notes on diverse dates. There appears to be reference to the sum of K495,058.05 which appears as a demand by letter dated 2''J ;\pril 2020 on page 155 of the record of appeal, which same letter make.s a demand for the sum of K180,000.00 being in respect of the final bill. We note that that the sum of K495,D58.05 refers to a draft bill of costs though a perusa I of the said draft bill of costs at pages 156 to 175 of the record of appeal, is in the sum of K350,416.84. We have also noted that the Respondent's claim by its Writ issued in the court below, was for the sum of K367,108.05 (page 54 of the record of appeal). The evidence of the Respondent of the proceeding.s in the court below from pages 365 to 366 of the record of appeal proves that there was in fact no fin a I invoice rendered in the sum of K367, 13 8.05 or at al I. This fact was conceded by counsel for the Respondent at the hearing of the j 21 • • C, appeal. We are therefore of the considered view that the court below erred in law and fact by considering the evidence of the parties to arrive at a finding that the bill had in fact been presented, when there is no such evidence on record, 7.14 We therefore uphold ground 3 of the appeal and we rely on the clear, categoric and mandatory provisions of Order 50 Rule 2 of the High Court Rules and the decision by the Supreme Court in the case of Dr Kenneth Kaunda referred to above. 7.15 As earlier noted, ground 4 had been abandoned. 8.0 Final Orders 8.1 Having held that it was wrong for the Respondent to have deducted or withheld portions of the monies recovered as legal fees, we allow the appeal and order the refund of the sum of K127,920.00 without interest (the deducted sum) to the appellant. The same to be paid within ninety (90) days of the Judgment of this Court. 8.2 Before we vacate this Judgment, we take this opportunity to counsel Legal Practitioners to observe and follow the provisions of the Legal Practitioners Act and indeed the Legal Practitioners Practice Rules. A dangerous trend which appears to be common practice, is to not render fee notes, to not have written instructions, setting out terms of the retainer and to not keep the client informed at every stage of the proceedings, until there is a judgment with a costs order, and funds received for the client, after which J 22 • there is a flurry of fee notes, explained or otherwise in a bid to justify deduction, offset or exercise a lien on those funds recovered. All or any of these methods are wrong according to the law as is currently established. Counsel are invited to be part of the solution, not the cause of the problem. Legal Practitioners would do well to re-read the provisions of the Act, The practice rules and the case of Kuta Chambers1 and the guidance of J Nyangulu in the matter of Re: The Legal Practitioners Act 8 . 8.3 We now move to consider the issue of costs. We are alive to the fact, and it is indubitable that a lawyer practices his trade to earn a living and that his time and professional expertise needs to be renumerated in the form of costs and fees. It is also trite as we have found that the Respondent in commencing the action in the court below, was not entitled to have commenced the action as it did as it violated the provisions of the relevant statute. However, this is in no way to suggest that it did not render legal services and for which it ought to have been paid by its client. Noting that we have upheld the appeal and ordered a refund of the sum of K127,920.00 (without interest), we order that in the interest of justice, the Parties do bear their own costs, both here and in the court below. An award of costs to the "successful party on appeal', would in our considered opinion, be an unconscionable reward to an otherwise erring client. J 23 • • !', 8.4 When we sat to hear this appeal, we did intimate that we may invite the Law Association of Zambia, through the relevant committee, to comment on the matter before us, as amicus. However, the circumstances being as they are, and in the light of mandatory statutory provisions and the case of Kuta Chambers, we did not deem it necessary to invite any comments. Be that as it may, we recommend that this Judgment be circulated by the Association to its Members. COURT OF APPEAL JUDGE B. M. MAJULA A. N. PATEL SC COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE J 24