Enock Percy Kavindele v Brigadier General Godfrey Miyanda (Appeal No. 70 of 2019) [2020] ZMCA 205 (19 June 2020)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 70 OF 2019 HOLDEN AT KABWE (Civil Jurisdiction) BETWEEN: /co\l•~' uFA~·Pr-~ ~ \~:·L __ ..c: ( ~r 1 9 JUN 2iJ2U . ,.:..~''! 0 ,~u,,:;-- _:_IVILREGIS~ At ' · ' ENOCK PERCY KAVINDELE ~ . APPELLANT AND BRIGADIER GENERAL GODFREY MIYANDA RESPONDENT CORAM: Chashi, Mulongoti and Lengalenga, JJA ON: 21 •t May and 19th June, 2020 For the Appellants: For the Respondent: NIA F. S Kachamba, Messrs EBM Chambers JUDGMENT CHASHI JA, delivered the Judgment of the Court. Cases referred to: 1. Robert Simeza (Suing in his capacity as Executer of the Estate of Andrew Hadjipetrou) and three (3) Others v Elizabeth Mzeyce -J 2- (Suing as the Mother and Guardian Ad Lithem of Minor Beneficiaries) - (2011) ZR, Vol 3, 290 2. Water Wells Limited v Wilson Samuel Jackson (1984) ZR,98 3. Winston Bwali Mukuka v Zambia Development Agency • SCZ Appeal No. 178 of 2008 4. Attorney General v Kapwepwe (1974) ZR, 207 5. Mpongwe Farms Limited v Dar Farms Limited (2016) ZR, Vol 3, 1 6. Zambia Wildlife Authority and Others v Muteeta Comm unity Resources Board Development Co-operation Society (2009) ZR 7 . In Re: The Legal Practitioners Act, CAP 30, The Legal Practitioners (Costs) Order 2001 and The Legal Practitioners Committee of the Law Association of Zambia (HC) (2018) ZR,33- Special Edition Legislation referred to: 1. The Law Reform (Miscellaneous Provisions) Act, Chapter 74 of the Laws of Zambia 2. The High Court Act, Chapter 27 of The Laws of Zambia 3. The Legal Practitioners Act, Chapter 34 of the Laws of Zambia 4 . The Legal Practitioners Practice Rules, 2002 5. The Legal Practitioners (Costs) Order 2001, Statutory -J 3- Instrument No.9 of 2001 Rules referred to: 1. The Supreme Court Practice (White Book) 1999 1.0 INTRODUCTION 1.1 This appeal emanates from the Ruling of Hon. Mrs. Justice SM Wanjelani, delivered on 9 th January, 2019, in which the learned Judge of the High Court refused to set aside the Order for taxed costs, embodied in the Taxing Officer's Certificate. 2.0 BACKGROUND 2 .1 The Respondent brought an action in the High Court against the Appellant, the Monitor Newspaper and the Attorney General as 1st, 2 nd and 3rd defendants respectively, for damages for libel. The Respondent throughout the case acted in person, whilst the Appellant was represented by Messrs Malambo and Company. 2.2 On 30th September, 2015, the Respondent was awarded -J 4- KS0,000.00 in damages and costs, against the Appellant and the 2 nd Defendant as per the Judgment at page 27 of the record of appeal (the record). The Appellant paid all the damages after three months from the date of the Judgment. 2.3 On 30th September 2016, the Respondent, through his newly appointed lawyers, Messrs EBM Chambers, applied to the Trucing Master for leave to file the bill of costs out of time. The application was granted as the Appellant's lawyers who were present at the hearing did not oppose the application. 2.4 Messrs EBM Chambers thereafter proceeded to file the bill of costs for taxation, which bill was served on the Appellant's lawyers. The bill was taxed at K303,032.02, in the absence of the Appellanfs lawyers and was subsequently served on the Appellant's lawyers. 2.5 When the Appellant became aware of the taxed bill, he instructed his new lawyers, Messrs KBF Partners, to apply to set aside the taxation proceedings and the Trucing Officer's Certificate. 3.0 MATTER IN THE COURT BELOW -J 5- 3.1 The application was brought under Order 62/28 of The Rules of The Supreme Court1 (RSC). After considering the said Order, together with Order 62/ 10 (1) RSC, the learned Judge opined that the aforestated provisions of the law had no basis on setting aside applications. 3.2 However, the learned Judge was of the view that, despite that, the court was enjoined to determine all matters in contention brought before it. 3.3 According to the learned Judge, two issues arose for determination, namely: - (a) Whether taxation proceedings and summons allowed in the absence of the Appellant's Counsel, who had been served but failed to appear or object to the taxation proceedings, can be set aside. (b) Whether a plaintiff can pursue one or all of the joint tortfeasors in enforcing a Judgment. 4.0 DECISION OF THE COURT BELOW 4.1 As regards the first issue, the learned Judge noted that the Appellant's lawyers were aware of the taxation proceedings, but decided to absent themselves. Relying on -J 6- the authority of Robert Simeza and three (3) Others v Elizabeth Mzeyce 1 , the learned Judge opined that, there was no procedural injustice occasioned. According to the learned Judge, the reasons advanced by the Appellant were not sufficient for the court to set aside the taxation proceedings. 4.2 The learned Judge also took into consideration the case of Water Wells Limited v Wilson Samuel Jackson2 and held that the failure by the Appellant to exhibit proposed objections to the bill of costs shows that, there were no arguable issues that needed to be determined on merit. 4.3 The learned Judge also relied on the case of Wilson Bwali Mukuka v Zambia Development Agencya and opined that the default by the lawyers was the Appellant's default. 4. 4 As regards the second issue, the learned Judge considered various case law, and held that, a plaintiff can elect which one of the tortfeasors to recover from. 4.5 At the end of the day, the learned Judge dismissed the Appellant's application with costs. -J 7- 5.0 THE APPEAL 5.1 Dissatisfied with the Ruling, the Appellant has appealed to this Court, advancing six (6) grounds of appeal couched as follows: 5. 1. 1 That the learned High Court Judge erred in law and fact and misdirected herself, when she found that in her own considered opinion, the provisions of Order 62 rule 10(1) of the Rules of the Supreme Court (White book) do not extend to setting aside taxation proceedings, on account of any improper act or omission but merely allows a negatively affected party to recover from the wrongdoer without taking into consideration that, under the provisions, the Court may exercise its discretion and order the setting aside of the taxation proceedings and refer the same to the registrar, when it is shown that improper conduct or omission was exhibited on the part of counsel, which was the Appellant's case. 5.1.2 That the learned High Court Judge erred in law and fact and misdirected herself when she held that, the -J 8- Appellant had not exhibited any proposed objections to the Bill of Costs or what she might term a "defence" to enable her make a determination as to whether there were arguable issues that needed to be determined without taking into consideration that, this was as a result of the Appellant's improper omission hence, the application made under Order 62 rule 10(1),(2) and Rule 28 and as such objections would only be filed when the matter is referred to the Taxing Master for review. 5.1.3 That the learned High Court Judge erred in law and fact and misdirected herself in law, when she found that, in as much as the Appellant is affected by the omission of his former Advocates, they were his agents and their default, was his default and that the court cannot therefore aid a recalcitrant litigant, without taking into consideration the fact that, the application before the court, related to taxation proceedings and the relief being sought was attributed to an omission or negligence of his advocates as provided under Order 62 rule 10(1), 2 and rule 28(1). -J 9- 5.1.4 That the learned High Court Judge erred in law and fact and consequently misdirected herself in law by relying on the provisions of section 9 of the Law Reform (Miscellaneous Provisions) Act and finding the Appellant's application with no merit and dismissing it in that, the Respondent could elect which of the joint tortfeasors to recover from without taking into consideration the facts on record showed that, the Appellant was subjected to payment of all the costs in the matter, when both he and the 2nd Defendant were held liable by the Judgment dated 30th September, 2015 and consequently the taxation proceedings. 5.1.5 That the learned High Court Judge in her Ruling dated 9th January, 2019, dismissing the Appellant's application, did not exercise her discretion judiciously as she did not put all the surrounding circumstances of the application in consideration and as such the ruling should be set aside and the matter referred back for taxation so as to allow the Appellant file objection to the bill of costs for taxation. -J 10- 5.1. 6 That the learned High Court Judge misdirected herself by dismissing the Appellant's application in her Ruling dated 9th January, 2019 as her reasoning for the dismissal contradicted the ruling of the High Court Judge M. D Bowa dated 28th August, 2018, which ruling clearly stated that, the Appellant had taken a proper avenue in respect of making the application under order 62 rule 10 (1) and rule 28 of the Rules of the Supreme Court (White Book) 1999 Edition to set aside tuation proceedings. 6.0 ARGUMENTS IN SUPPORT OF THE APPEAL 6.1 The first, third, fifth and sixth grounds of appeal were argued together. In arguing these grounds, the Appellant in respect to the first ground, drew our attention to page 16, line 3, paragraphs 15-21 of the record as regards the findings by the learned Judge. 6.1.1 It was submitted that, the learned Judge erred as she did not take into consideration that, under the said provisions, the Court may exercise its discretion and order the setting aside of taxation proceedings and refer the same back to the Taxing Officer, when it is shown that improper conduct -J 11- or omission was exhibited on the part of Counsel, by failing to attend the taxation proceedings and not filing objections. 6.1.2 As regards the remaining grounds of appeal, it was contended that, the learned Judge did not exercise her discretion judiciously, as she did not take all the surrounding circumstances of the application into consideration such as, the grant of 14 days period, expiration of reviewing taxation proceedings to be considered first as noted in the ruling of Hon. Justice MD Bowa dated 28th August, 2018, when the Respondent raised preliminary issues. 6.1.3 Counsel submitted that, Justice Bowa accepted the evidence that the Appellants' previous lawyers did not alert him about the decision on time, before the expiration of the prescribed time frame and reliance was therefore, placed on Order 62/10 (1) and (2) RSC. That the ruling by the learned Judge contradicts that of Judge Bowa. 6.1.4 It was submitted that, on the aforestated arguments, the Ruling should be set aside and the matter referred back for -J 12- taxation so as to allow the Appellant file objections to the bill of costs. 6.2 In arguing the second ground, it was submitted that, the learned Judge erred in arriving at her holding without taking into consideration that, the failure to file objections was as a result of the Appellant's lawyer's improper omission, hence the application being made under Order 62/ 10 (1) and (2) and Rule 28(1) RSC. 6.2.1 It was further submitted that, the application was not for review from the Trucing Officer to the Judge in Chambers, but to set aside taxation proceedings due to omission by the Appellant's previous lawyers. 6.2.2 According to Counsel, the application did not require the Appellant to exhibit a defence or objections as in the case of review from the Taxing Officer to the Judge in Chambers as per procedure on matters for review for taxation. 6.3 In respect to the fourth ground, it was submitted that, the rules of proceedings and taxation differ. That by the learned Judge relying on the provisions of Section 9 of The Law Reform (miscellaneous Provisions) 1 Act, she erred, as the same does not -J 13- relate to taxation proceedings. 7.0 ARGUMENTS OPPOSING THE APPEAL 7 . 1 In responding to the first, third, fifth and sixth grounds of appeal, Mr. Kachamba, Counsel for the Respondent, submitted that, the learned Judge in her reasoning did not contradict the ruling of Justice Bowa, as the ruling related to the proper avenue in respect to the making of the application only and not determining the application itself. 7.1.1 Counsel drew our attention to Order 62/28 and 62/ 10 (1) RSC, and submitted that the said provisions are specific and do not extend to setting aside taxation proceedings on account of any omission, but merely allows a negatively affected party to recover costs from a wrong doer as a result of the unre asonable act or omission. 7 .1.2 It was further submitted that, the learned Judge did not only dismiss the application on the basis tha t the provision of the law that was being relied on did not give her the discretion to set aside the taxation proceedings. She went further to -J 14- determine the matter on its merits by exerc1s1ng her discretion judiciously and found that the Appellant had not advanced sufficient reasons to allow her set aside the proceedings in the interest of justice. 7.1.3 Counsel submitted that, contrary to the Appellants assertion, Justice Bawa did not agree that the Appellant's lawyers did not alert him on time, but stated that this was the only avenue left for the Appellant. 7.2 In response to the second ground, it was submitted that the application was not for review and the costs were not as a result of anything done or an omission made unreasonably or improperly by or on behalf of the Appellant. 7 .2.1 Further that, the bill of costs had been served on the Appellant's former lawyers of which the Appellant had sight of. Therefore, the Appellant's lawyers ought to have presented the court with some documentary evidence to enable it ascertain whether the application had merit or not, in the interest of justice. -J 15- 7.3 As regards the fourth ground of appeal, Counsel relied on Section 9 of The Law Reform (Miscellaneous Provisions) Act1 and the case of Attorney General v Kapwepwe4 wherein the Supreme Court ruled that, a plaintiff can elect which of the tortfeasors to recover from and thus whether the 2 nd defendant was served does not assist the Appellant. 8.0 OBSERVATIONS BY THE COURT 8.1 As earlier alluded to under paragraph 2.1 of this Judgment, the Respondent throughout the case in the court below, up to the time of the Judgment of the court and execution of the Judgment, acted in person. 8.1.1 The aforestated was confirmed by the Respondent in his affidavit in opposition to summons to set aside taxation proceedings at page 429 of the record and in particular paragraphs (2) where the Respondent asserted as follows: "That I am the plaintiff in this action)· and further that I prosecuted this action in person from the commencement of the trial proper until delivery of Judgment on 30th September, 2015 and thus I am competent to swear this affidavit". 8.1.2 At the hearing of this appeal, we asked Mr. Kachamba -J 16- whether he was aware that the Respondent in the court below acted in person in prosecuting the matter. Mr. Kachamba responded in the affirmative. When we queried him on why on taxation of the bill of costs, the scale of costs relating to legal practitioners was used, when the Respondent acted in person, Counsel was at a loss, though he indicated that he had some authority which was not at hand. 8. 1. 3 We were courteous enough to allow Counsel to bring to our attention the said authority after the hearing, which he did on 22nd May, 2015. In doing so, Counsel drew our attention to Order 62/ 18 RSC1 . We shall revert to this when we consider whether the learned Judge erred in refusing the Appellant's application to set aside the taxation proceedings and the Taxing Officer's Certificate. 9.0 DECISION OF THIS COURT 9. 1 We have considered the Ruling being impugned and the arguments by the parties. We shall consider the first and -J 17- sixth grounds of appeal together, followed by the fourth then fifth and end with the second and third grounds. 9. 2 The issue raised by the first and sixth grounds is the applicability of Order 62 / 10 ( 1) and 62 / 10 (2) RSC vis-a~ vis the Ruling of Hon. Mr. Justice MD Bowa, delivered on 28th August, 2018. 9. 2. 1 We have perused the said ruling which appears at pages 445 -460 of the record. The issue the learned Judge was called upon to determine, as a preliminary issue, was whether it was proper in law and procedure that a bill of costs, which had been taxed by a Taxing Officer could be reviewed or set aside by the same Trucing Officer as provided by the High Court rules under Order 40 of the High Court Rules2 (HCR). 9.2.2 In determining the preliminary issue, the learned Judge took into consideration the provisions under Order 40(3) and ( 1) HCR and opined that, a party is at liberty to apply for a review of the Taxing Officer's decision within the prescribed timeframe, on condition that, the final certificate had not been issued. -J 18- 9.2.3 The learned Judge noted that, the Appellant had not done that, because his previous lawyers had not alerted him about the decision in time. 9.2.4 The learned Judge also considered Order 62/ 10 (1) and 62/ 10 (2) RSC and opined that, from the said provisions, the law does have in contemplation the acts or omissions, unreasonably or improperly done not only by a party, but by another on that party's behalf. 9.2.5 The learned Judge found that, the om1ss1ons by the Appellant's lawyers in not attending to the taxation of the bill, fell squarely within the provisions of Order 62 / 10 RSC and that therefore, the learned Judge had the power to deal with the issue or refer it to the Trucing Master to deal with under Order 62/28 RSC. 9.2.6 The learned Judge found nothing inappropriate about the application by the Appellant and granted him fourteen ( 14) days, to apply for review of the taxation process as that was the only avenue which was open to the Appellant. The preliminary issue was accordingly dismissed and Justice -J 19- Bowa referred the application to be heard by a Judge on the task force against backlog. 9.2.70rder 62/ 10 (1) RSC deals with misconduct or neglect in the conduct of any proceedings and it provides as follows: "Where it appears to the court in any proceedings that, anything has been done or that any omission has been made, unreasonably by or on behalf of any order that, the costs of that party in respect of the act or omission, as the case may be, shall not be allowed and that any costs occasioned by it to any other party shall be paid by him to the other party 11 • 9.2.8 Order 62/ 10 (2) goes on to state as follows: ''Instead of making an Order under paragraph (1) the court may refer the matter to the twang officer, in which case the taxing officer shall deal with the matter under rule 28 (1) ". 9.2.9 Our understanding of Order 62/ 10 RSC is that, it applies to misconduct or neglect in the main matter before the court. The implication being that, if there is any act or omission made unreasonably by or on behalf of any party, -J 20- the court can exercise discretion and may order that the costs of the party in respect to the act or omission shall not be allowed. And, that where costs are occasioned by the act or omission to any other party, the costs shall be borne by the party who committed the act or omission. 9 .2.10 Order 62/ 10 RSC, therefore was not applicable to the matter which was before Justice Bowa. Justice Bowa therefore, misapprehended his interpretation and understanding of Order 62 / 10 RSC. 9.2.11 In the view that we have taken, the learned Judge W anjelani, was correct in her interpretation of Order 62 / 10 RSC, in holding that, the provision had no bearing on setting aside applications. 9.2.12 However, the issue having been earlier determined by Justice Bowa and there having been no application to impugn the decision, she should not have proceeded to make a determination on the same issue. In the case of Mpongwe Farms Limited v Dar Farms and Transport Limited5 , the matter was dealt with by two different Judges as in casu. 9.2.13 The Supreme Court observed that, the matter was first -J 21- allocated to the initial Judge, who for some reason could not continue to hear the matter and hence it was reallocated to another Judge, the trial Judge. The initial Judge made a determination on the matter being statute barred. When the matter was reallocated, the trial Judge in his Judgment, revisited the issue and made his own determination. The Supreme Court held that, the trial Judge lacked the vires to pronounce on an issue which the initial Judge had already determined. They went on to state at page 19 as follows: "For the avoidance of doubt, we hold that the question whether the Appellant's claim was, or was not time barred was determined by the initial Judge and the trial Judge, therefore, should not have made a second decision on it. It was res judicata 11 • 9.2.14 Equally, in this matter, the issue having been determined by Justice Bowa, Judge Wanjelani should not have made a second determination, as the issue was res judicata. However, that as it may be, the two grounds are -J 22- neither here nor there, as the learned Judge took the view that, she was enjoined to determine all matters in contention brought before her and proceeded to determine the application for setting aside the taxation proceedings and the Taxing Officer's certificate. 9.3.1 We now turn to the fourth ground of appeal. Section 9 of The Law Reform (Miscellaneous Provisions) Actl, deals with proceedings against and contribution between joint and several tortfeasors, where damage is suffered by any person as a result of the tort. It is evident that the provision has nothing to do with the apportionment of costs to the parties and should not have been a provision for consideration by the learned Judge. 9. 3. 2 The applicable provision of the law is Order 40 / 6 HCR which provides as follows: "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 Judge shall have the full power to award and apportion costs, in any manner it or may deem just, and in the absence of any -J 23- express direction by the court or a Judge, costs shall abide the event of the suitor proceedings". 9.3.3 We note that, the court in its Judgment appearing at pages 27-45 of the record, in awarding the plaintiff costs, did not apportion the costs as regards the two defendants. In the absence of the apportionment, it is our view that the costs should be borne equally between the two defendants. 9.4. In considering the fifth ground of appeal, we shall revert to the issue earlier alluded to, on whether the Respondent was justified in taxing his bill of costs based on the scale of costs applicable to the legal practitioners. 9.4.1 The bill of taxation appearing at page J8 of the record is intituled as follows: "Plaintiffs bill of costs for taxation on party and party basis pursuant to Judgment of Hon. Mrs. Justice JK Kabuka delivered on 30th September, 2015 and pursuant to Order 62/ 18 RSC and Order 40 (1) and (2) HCR - CAR 27 of the Laws of Zambia. Action commenced by writ of summons". -J 24- 9.4.2 Although, no reference is made to The Legal Practitioners (Costs) Orders, a perusal of the bill shows from the scale head and the schedules that, it is anchored on the same. 9.4.3 Order 62/18 RSC which the Respondent relied on, 1n relation to litigants in person, states as follows: "18-(1) subject to the provisions of this rule, on any taxation of the costs of a litigant in person, there may be allowed such costs as would have been allowed, if the work and disbursements to which the costs relate had been done or made by a solicitor, on the litigant 1s behalf together with any payments, reasonably made by him for legal advice relating to the conduct of or the issue raised in the proceedings (2) The amount allowed in respect of any item shall be such sum, as the ta.xing o /fleer thinks fit but not exceeding, except in the case of disbursements, two thirds of the sum which in the opinion of the taxing officer would have been allowed, in respect of that item, if the litigant had been represented by a solicitor". 9.4.4 A reading of the above provisions, shows that, the Taxing -J 25- Officer may exercise discretion on some items, subject of the taxation, to grant such costs to a litigant appearing in person, as would have been allowed if the work and disbursement to which the costs relate had been done by a solicitor in respect, together with any merits reasonably made by him for legal advice relating to the conduct of or issues raised in the proceedings. 9.4.5 Further, the Taxing Officer has the discretion to determine an amount that should be allowed in respect of any item, provided such amount does not exceed two - thirds of the sum, which in the opinion of the Taxing Officer, would have been allowed in respect, of that item if the litigant had been represented by a solicitor. 9.4.6 In order to determine the application of Order 62/ 18 (1) and (2) RSC, it should not be read in isolation, but together with Order 62/ 18/2 RSC on the effect of the rule, which provides as follows: "This rule applies to all costs and expenses incurred after Aprill, 1976. Prior to that date, a litigant in -J 26- person could only recover out of pocket expenses (Buckland v Watts (1970) IQ B 27 ... ) where fees and expenses charged by his solicitor, were allowed as out of pocket expenses see also litigants in person (Costs and Expenses) Act 1975 ... The litigants in Person (Costs and expenses) Order 1980". 9.4. 7 The aforestated shows that, in England, the law relating to Costs in respect to litigants in person has evolved and has since 1976, seen enactment of Acts and statutory instruments on which Order 62 / 18 RSC is premised, which are not applicable to our jurisdiction. 9.4.8 Furthermore, when ascertaining the law regulating the taxation of costs in our jurisdiction, RSC, is not the starting point. Our starting point should be The High Court Act2 , The Legal Practitioners Act3 and the attendant regulations, such as The Legal Practitioners Practice Rules4 and The Legal Practitioners (Costs) Orders5 • 9.4.9 Section 10 (1) of The High Court Act2 provides as follows: "The jurisdiction vested in the court shall, as regards practice and procedure, be exercised in the manner -J 27- provided by the Act, the Criminal Procedure Code, The Matrimonial Causes Act, 2007 or any other written law, or by such rules, Orders or directions of the court as may be made under this Act, The Criminal Procedure Code, The Matrimonial Causes Act, 2007, or such written law, and in default thereof in substantial conformity with The Supreme Court Practice 1999 (White Book) of England and subject to subsection (2) the law and practice applicable in England in the High Court of Justice up to 31 st December, 1999". 9.4.10 From the aforestated provision, it is clear that English practice and procedure rules, only apply in so far as, there is a lacuna in our rules or practice and procedure. We do not resort to English practice and procedure when our own rules and procedure are clear and comprehensive. Explicitly put, the Supreme Court in the case of Zambia Wildlife Authority and Others v Muteeta Community Resources Board Development Co-operative Society6, held that, the White Book applied in Zambia by way of default procedure to fill in the gaps, where there was no specific -J 28- provision 1n local statutes and rules on a particular subject matter. 9.4.11 That said, Order 40 of The High Court Act2 , which deals with costs, must not be read in isolation, but together with the provisions of The Legal Practitioners Act. Section 2 of the said Act, defines costs as fees, charges, disbursements and renumeration. Sections 24 and 26 of the same Act, allows only legal practitioners to charge their clients, professional fees for the provision of legal services. Furthermore, section 42 as read together with section 47 proscribes any unqualified person from acting as an advocate and recovering costs for the work done, as an advocate. 9.4.12 In addition, Rule 7 (1) of The Legal Practitioner Practice Rules4, provides that a practitioner shall not share or agree to share professional fees with any unqualified person. 9.4.13 The aforestated provisions, show succinctly that, an unqualified person in Zambia cannot be entitled to claim any costs as if he was a legal practitioner. These provisions clearly contradict the provisions of Order 62/ 18 (1) and (2) -J 29- RSC. Our laws in Zambia only allows a legal practitioner to charge professional fees for the provision of legal services in accordance with The Legal Practitioners (Costs) Order5 , which does not apply to unqualified persons. 9.4.14 The leading case in our jurisdiction on this subject matter is the case of In Re: The Legal Practitioners Act, Cap 30, The Legal Practitioners (Costs) Order 2001 and The Legal Practitioners Committee of The Law Association of Zambia7 where it was held as follows: 1. Legal costs are the pnce 1n money or monetary value of the work done and materials, including services used by the successful litigant 1n prosecuting or defending a case in court. 2. A successful litigant is not entitled to share with his lawyer or indeed to receive part of legal costs comprised in the profit costs as those are only payable to a lawyer representing the successful litigant. 3. If a litigant represents himself, then he 1s only entitled to out of pocket expenses. -J 30- 4. Litigants are not entitled to legal costs or fees awarded by the court to the successful litigant insofar as same relate to profit costs, save his out of pocket expenses. 9.4.15 Nyangulu J, went on at page 35 to state as follows: "If the litigant is representing himself, the cost of prosecuting or defending his case will comprise of, among other things, transport expenses by road, in this case taxis or buses or by train or air, as the case may be, where that has been incurred. It 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 ... if he represents himself, then he is only entitled to out of pocket expenses". 9.3.16 The In Re: Legal Practitioners Act7 case was endorsed by the Supreme Court in the case of Kuta Chambers (Sued as a firm) v Concillia Sibulo (Suing as Administratrix of the Estate of the late Francis SibuloB where Malila JS, had this to say: I • -J 31- "In this regard, we endorse the advisory opinion given by the High Court In Re: The Legal Practitioners Act, Ex parte Legal Practitioners Committee of the Law Association of Zambia. That matter was a reference by the Law Association of Zambia to the High Court for Interpretation of the provisions of The Legal Practitioners Act as they relate to costs. The Ruling by Nyangulu J, was that a successful litigant is not entitled to share with his lawyer, or indeed receive part of the legal costs comprised in profit costs. Out of pocket expenses are, however, recoverable by the instructing client from the costs. We agree with that interpretation". 9.4.17 The legal position in our jurisdiction therefore is that, a successful litigant acting in person, is generally entitled to costs, and where such costs are awarded, they are limited to out of pocket expenses and disbursements actually incurred; in prosecuting or defending the action. Such costs do not include "profit costs" which are only chargeable by a legal practitioner for professional services rendered to a litigant. Therefore, it follows that a litigant . ' -J 32- acting in person cannot rely on or use the scale of costs provided for under The Legal Practitioners (Costs) Order. 9.4.18 In the view we have taken, the fifth ground of appeal succeeds. 9.5 The fifth ground having succeeded, the second and third grounds of appeal become otiose. 10.0 CONCLUSION 10.1 It is trite law that an appellate court cannot interfere with the Trucing Officer's decision on taxation, unless it is shown that either the decision was based on an error of principle, or the a.warded costs were so manifestly excessive to justify an inference that, it was based on an error of principle. 10 .1. 1 We are of the view that, it is an error of principle for the Trucing Officer, to have allowed the Respondent who acted as a litigant in person to use the scale of costs under The Legal Practitioners (Costs) Order, which resulted in the costs awarded being excessive and unjust enrichment on the part of the Respondent. -J 33- 10.1.2 We accordingly set aside the trucing proceedings, which were conducted by the Ta_x.ing Officer, together with the Trucing Officer's certificate of taxation of the bill of costs. 10.1.3 The Respondent's bill of costs is to be taxed afresh before another taxing officer and shall be limited to out of pocket expenses and disbursements actually incurred. The Appellant will only bear half of t ill of costs to be taxed. 10.1.4 Taking into consideratio.~,.. mstances of this case, each party shall b e J. CHAS COURT OF APPEAL JUDGE ~d .~ J. Z. M~ I F. M. LENGALENGA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE