Emmy Shanzi Kaira and Ors v Standard Chartered Bank Zambia Plc (2021/HP/ 1003) [2022] ZMHC 108 (31 March 2022)

Rl IN THE HIGH COURT OF ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: EMMY SHANZI KAIRA AUDREY KALWALA MEMORY KOMAKI CECILIA MUNDIA PATIENCE BWALYA JERE FABIAN MULEYA AND 2021/HP/ 1003 1 st PLAINTIFF 2nd PLAINTIFF 3rd PLAINTIFF 4 th PLAINTIFF 5th PLAINTIFF 6th PLAINTIFF STANDARD CHARTERED BANK ZAMBIA PLC DEFENDANT BEFORE HON MRS JUSTICE S . KAUNDA NEWA IN CHAMBERS THIS 31st DAY OF MARCH, 2022 For the Plaintiffs For the Defendant : Ms N. Tembo, Messrs Wilson and Comhill Mr Mwape Chileshe and Ms Cynthia Chifwelu Muzumara Messrs Eric Silwamba, Jalasi & Linyama Legal Practitioners RU LI NG CASES REFERRED TO: 1. Donald Chilolo v Sekou Diawara Galedou (TIA Bakore Shop) Appeal No 21 of 2014 LEGISLATION REFERRED TO: 1. The Rules of the Supreme Court of England, 1999 Edition 1. INTRODUCTION 1.1 This Ruling is on an application made by the Plaintiffs on 24th February, 2022, for an Order to dismiss the taxation R2 for irregularity, pursuant to Order 3 Rule 2 of the High Court Rules, Chapter 27 of the Laws of Zambia, as read together with Order 62 Rule 8 of the Rules of the Supreme Court of England, 1999 Edition. The application is supported by an affidavit a nd a list of authorities and skeleton arguments. The Defendant 1n opposing the application filed an affidavit in opposition and skeleton arguments and a list of authorities 2. BACKGROUND 2.1 The record shows that the events leading to th e application b eing filed, a r e that the Plaintiffs commenced these proceedings by Writ of Summons accompanied by a statement of claim and the other requisite documents on 26th August, 202 1, which was amended on 30th August, 2021, claiming; z. An Order that the termination of their employment by way of redundancy was wrongful and unlawful; ii. Damages for wrongful and unlawful termination of employment; m. An Order to compel the Defendant to recompute the redundancy packages to include all the completed years of service; w . A refund of 90% of the Plaintiffs insurance premiums and the value of six months loan and repayment instalments pursuant to their Credit Life Policies; R3 v. With respect to the 1st and 6 th Plaintiffs restoration of their facilities to kwacha, being the currency in which the facility was contracted; vi. An Order for the Defendant to account for any foreign exchange losses to the 1st and 6th Plaintiffs vn. An Order for the Defendant to refund any and all recoveries made from the facility on the ground that the facility was a benefit and not a loan; um. With respect to the 1st and 6th Plaintiffs an Order to; a) Restore their respective auto facilities to kwacha being the currency in the which the facility was contracted; b) The Defendant to account for any foreign exchange losses; c) The Defendant to refund any recoveries from the facility since it was a benefit and not a loan; d) In the alternative, the 1s t and 6th Plaintiffs claim a discount of 20% to apply to any recoveries on the facility ix. With respect to the 5th Plaintiff damages for nervous shock and mental distress; x. Interest, Costs and any other relief that the Court may deem.fit. R4 2.2 On 16th September, 202 1, the Defendant entered appearance a n d filed its' defence, and on the same date, filed an application to set aside the Writ of Summons for irregularity, pursuant to Order VII Rule 1 of the High Court Rules, Chapter 27 of the Laws of Zambia. That application was opposed and on hearing the said application on 7 th October, 2021, I declined to set aside the Writ of Summons and instead directed the Plaintiffs to amend the same within fourteen days to cure the irregularities cited, failure to which it would be set aside for irregularity. 2.3 I granted costs of and incidental to the application to the Defendant. On 11 t h October, 2021, the Writ of Summons was accordingly amended . Then on 15th December, 2021, the Defendant filed a notice of taxation of their bill of costs, which prompted the application subject of this Ruling. 3. AFFIDAVIT IN SUPPORT OF THE APPLICATION 3 . 1 This affidavit is deposed to by Counsel with conduct of the matter on behalf of the Plaintiffs. She avers therein, that on 7 th October, 2021, this Court made an Order for costs in favour of the Defendant, as shown on exhibit 'NTl ', a copy of the said Order. It is also stated that on 15th December, 2022, the Defendant filed into Court a bill of costs for taxation on a party to party basis, with other supporting documents . RS 4. LIST OF AUTHORITIES AND SKELETON ARGUMENTS IN SUPPORT 4.1 The Plaintiffs refer to the provisions of Order 3 Rule 2 of the High Court Rules and Order 62 Rule 8 of the Rules of the Supreme Court of England, 1999 Edition as the anchor for the application, stating that the effect of Order 62 Rule 8(1) is explained in Order 62/8/1 which states that costs are not to be taxed until the conclusion of the proceedings irrespective of the stage at which they are ordered, unless the Court expressly orders an earlier taxation. 4.2 As to when proceedings are concluded Order 62/8/2 1s referred to. 5. AFFIDAVIT IN OPPOSTION 5.1 The deponent of this affidavit, Mwape Chileshe, Counsel with conduct of the matter on behalf of the Defendant states that after this Court on 7 th October, 2021, granted the order awarding costs to the Defendant, the Defendant on 14t h October, 2021, wrote a letter to the Plaintiffs Advocates demanding payment of the costs, which letter is exhibited as 'MC l '. 5. 2 However, there was no response to the letter and the Plaintiffs have filed the application subject of this Ruling. R6 6. SKELETON ARGUMENTS AND LIST OF AUTHORITIES IN OPPOSITION 6.1 The position taken by the Defendant is that the Plaintiffs' arguments are misplaced, based on the decision by the Supreme Court in the case of Donald Chilolo v Sekou Diawara Galedou (T/A Bakore Shop) (1J, stating that the Court in that matter h eld that a Court may Order that costs may b e taxed even before a m a tter is concluded. 7. SUBMISSIONS AT THE HEARING 7. 1 At the hearing, Counsel for the Plain tiffs stated that they relied on the affidavit filed in support of the application as well as the list of authorities and skeleton arguments. In augmenting she submitted that the notice of taxation of the costs that had been filed by the Defendant, is irregularly before Court, as it is contrary to Order 62 Rule 8 of the Rules of the Supreme Court of England, 1999 Edition. 7 .2 In that regard, she reiterated the arguments in the skeleton arguments that costs shall b e taxed at the conclusion of the proceedings in which th ey a r e awarded. On t he case of Donald Chilolo v Sekou Diawara Galedou (TIA Bakore Shop) (1J relied on by the Defendant, Counsel's submission was that as seen from page 3 of the Defendant's skeleton arguments, the Court in that m atter h eld th at a Court may order taxation of costs b efore Judgment. R7 7.3 Counsel went on to state that ·in this matter, this Court granted costs in favour of the Defendant to be taxed in d efault of agreement, but it did not direct that the said costs should be taxed before conclusion of the matter. That if it was the intention of the Court, it would have made an express Order to that effect, a s required by Order 62 Rule 8 of the Rules of the Supreme Court of Eng land. 7.4 Counsel still in submission stated that a close perusal of the Donald Chilolo case reveals that the Supreme Court in that matter confirmed that taxation is done after the passing of final Judgment, unless the Court in its discretion Orders that they be taxed at an earlier stage. Thus, the prayer was that the notice of taxation be set aside for irregularity . 7.5 In r e sponse, Counsel for th e Defenda nt relied on the affidavit in opposition a s well as the skeleton a rguments and list of authorities. He reiterated r eliance on the case of Donald Chilolo v Sekou Diawara Galedou (T/ A Bakore Shop) f1J stating that it is good law on the power of the Court to order taxation of costs before the d elivery of Judgment. 7.6 Counsel further submitted that if it was the intention of this Court that the costs be t axed after Judgm ent, it would h ave said so. Ther efore, in his view, the notice of taxation is properly before Court, and as paragr aph 6 of the affidavit in opposition states that the Defendant dema nded payment of R8 the costs from the Plaintiffs which went unanswered, the costs were not agreed. On th e strength of the Donald Chilolo case and this Cour t's Order , Coun sel submitted that th eir notice is p r operly before Court, and prayed that it be allowed . 7.7 There was no submission in r eply. 8 . DECISION OF THIS COURT 8.1 I have considered the application. It has been brought pursuant to Order 3 Rule 2 of the High Court Rules, Chapter 27 of the Laws of Zambia and Order 62 Rule 8 of the Rules of the Supreme Court of England, 1999 Edition. Order 3 Rule 2 of the High Court Rules states th at; "2. Subject to any particular rules, the Court or a Judge may, in all causes and matters, make any interlocutory order which it or he considers necessary for doing justice, whether such order has been expressly asked by the person entitled to the benefit of the order or not". 8 .2 This is a miscellaneous rule that is subject to any other Rules. Order 62 Rule 8 (1) of the Rules of the Supreme Court of England, on the other hand provides that; "(1) Subject to paragraph (2), the costs of any proceedings shall not be taxed until the conclusion R9 of the cause or matter in which the proceedings arise". 8.3 Order 40 of the High Court Rules, wh ich provides for costs, is silent on th e stage at which costs shall be taxed. Order 62 Ru le 29 of the Rules of the Supreme Court of England states that; "{1) Subject to paragraph (2), where a party is entitled to recover taxed costs or to require any costs to be taxed by a taxing officer by virtue of - {a) a Judgment, direction or order given or made in proceedings in the High Court or in the Civil Division of the Court of Appeal; or {b) rule 5 (3), (4) or (5); or {c) an award made on an arbitration under any Act or pursuant to an arbitration agreement; or (d) an order, award or other determination of a tribunal or other body constituted by or under any Act, he must begin proceedings for the taxation of those costs either within three months after the judgment, direction, order, award or other determination was entered, signed or otherwise perfected or, in cases to which RlO sub-paragraph (b) applies, within three months after service of the notice g iven to him under Order 2 1, rule 2 or Order 22, rule 3 ". 8.4 This Order is clear that a party that is awarded costs shall begin proceedings for their taxation within three months of the Judgment, direction or order. Order 62 Rule 8 (1) seen above states that proceedings for the taxation of costs should not commenced until the proceedings in which they are awarded are concluded. Order 62 Rule 8 (2) goes further to provide that; "(2) If it appears to the Court when making an order for costs that all o r any part of the costs ought to be taxed at an earli er stage it may, except in a case to which paragraph (3) applies, order accordingly". 8 .5 Paragraph 3 provides as follows; "(3) No order may be made under paragraph (2) in a case where the person against whom the order for costs is made is an assist ed person within the meaning of the statutory provisions relati ng to legal aid". 8.6 In the case of Donald Chilolo v Sekou Diawara Gale dou (T/A Bakore Shop) (1J relied on by the Defendant the matter arose from an appeal from the High Court which dismissed Rll the appellant's application to stay the taxation of the respondent's costs against him. The Judge found that the respondent had commenced the taxation proceedings within three months but the appellant had contended that the taxation proceedings were commenced on 19th May, 2015, five (5) months after the Judgment was delivered on 27th December, 2013, and no leave was sought to file it out of time. 8.7 The Respondent argued that the Judgment of 27th December, 2013 was not perfected as there were a number of interlocutory applications that stopped the Respondent from proceedings with the taxation proceedings. In deciding the matter, the Supreme Court referred to Order 62/8/1 of the Rules of the Supreme Court of England, which explains the effect of the Rule as follows; "This rule states the new principle that costs are not to be taxed until the conclusion of the proceedings irrespective of the stage in the proceedings at which the order is made unless the court expressly orders an earlier taxation. In such cases, it will order "Taxation forthwith. " Thus, the decision in Allied Collection Agencies v. Wood [1981]3 All E. R. 176 has in effect been reversed. R12 " ... a cause or matter... is concluded when the court in question has finally determined the matters in issue, whether or not there is an appeal from that determination", per Saville J. Raf sanjan Pistachio Producers Corporation v. Bank Leumi (U. K.) Ltd November 4, 1992, Review of Taxation (unrep.)". 8.8 The Supreme Court stated that from the above , a Court cannot order costs to be taxed until after Judgment, and disagreed with the argument that the respondent could not commence the taxation proceedings within three (3) months of the Judgment due to the numerous interlocutory applications that were made by the appellant, as it was bound by the provisions of Order 62 Rule 29 of the Rules of the Supreme Court, and in the alternative it should have applied for extension of time to file the bill of costs. 8.9 As such, the appeal was allowed and the order of the Court below was set aside. 8. 10 Going by the provisions of Order 62 Rules, 29, 8 (1) and (2) as well as the decision in the Donald Chilolo case, it is trite that costs shall only be taxed at the end of the proceedings in which they are awarded, unless the Court states t h at they be taxed earlier. In such a case, the Court will state that they be taxed forthwith. Further taxation proceedings shall be commenced within three (3) months of the Judgment or Order in which they are given, and when .. R13 one is out of time, they can apply for extension of time to do so. 8.11 In this case, my Order of 7 th October, 2021, not having directed that the costs awarded to the Defendant be taxed forthwith, the notice of taxation is incompetently before Court, and I set it aside, with costs to the Plaintiffs to be taxed in default of agreement. Leave to appeal is granted. DATED AT LUSAKA THIS 31st DAY OF MARCH, 2022 S. KAUNDA NEWA HIGH COURT JUDGE REPUBLIC OF ZA~ Hlr ~OURT ne,•MRIA I 111 3 1 MAR 2022 l Ahl ' -- ~~ S . NEWA J P.o . eox sooe1.' LUSA1<. A ' .,..,_,