Food Reserve Agency v Hastings Pasi (Appeal No. 94/2018; CAZ/08/83/2018) [2022] ZMCA 136 (7 June 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) Appeal No. 94/2018 CAZ/08/83/2018 BETWEEN: AND HASTINGS PASI Appellant Respondent Coram: Sharpe-Phiri JJA on 7 th June 2022 For the Appellant: Mr. J. Ngandu of Messrs Kaumbu Mwondela For the Respondent: Mrs. E. Chibambo-Chomba of Messrs Mando Legal Practitioners & Pasi Advocates RULING Legislation referred to: 1. The Court of Appeal Rules, Act No. 7 of2016 2. The Supreme Court Practice (White Book) 1999 Edition. 3. The High Court Rules, Chapter 27 of the Laws of Zambia Cases to: 1. Finance Bank of Zambia Limited v Dimitrios Monokadilos Filandraia Kaur (2012) Vol. 1 ZR 484 2. Allen v Sir Alfred MC Alpine and Sons Limited (1968) 2 QB 229 3. Birke H v James (1977) 2 ALL ER 801 4. John R. Ngandu v Lazarous Mwinga (1988-89) ZR 197 Rl This matter was brought b y the Respondent by way of Notice of Motion filed on 22nd October 2021 made pursuant to Order VII Rule 3 of the CAR. By this application, the Respondent has moved this Court for the fallowing reliefs, namely: i. An order to set aside the Rulings of the District Registrar dated 1 ()th September 2021 on the ground that the District Registrar had no jurisdiction to set aside an order dated 21 st December 2020 granted by a Senior Assistant Registrar; ii. An order to set aside the Ru ling of the District Registrar dated 5 th October 2021 on the ground that the District Registrar had no jurisdiction to hear and determine the Appellant's application for taxation of costs after 3 months from the date of referral or to extend the time for taxation, and in the alternative. iii. An order to set aside the Ru ling of the District Registrar dated 5 th October 2021 on the ground that the District Registrar erred in law when he taxed the costs without taking into account the Respondent's objections to the Bill of Costs filed on 27th November 2020. R2 The Respondent's Notice of Motion was supported by an affidavit dated 22n d October 2021 sworn by Mando Mwitumwa, an Advocate in the employ of Mando & Pasi, seized with conduct of this matter on behalf of the Respondent. He deposed therein that this Court delivered its judgment on 21st February 2019 and awarded costs to \ the Appellant, which costs were referred to taxation. He further deposed that this Court also delivered a Ruling on 28th November 2019 on an application by the Appellant for the correction of clerical errors, accidental slips or omissions and ordered that each party bear its own costs. He stated that following this Ruling, the Appellant filed a Bill of Taxation on 16th march 2020, more than 2 years after the matter was referred to Taxation. The Appellant only served the documents on the Respondent on 6 th August 2020, almost 5 months after they were filed. The matter came up for taxation of the Bill of Costs on 21st December 2020, which was 10 months after the Bill of Costs was filed. The Appellant and its Advocates not being in attendance when the matter came up, the Senior Assistant Registrar dismissed the proceedings. The matter came up for hearing before the District Registrar on 3 rd August 2021 and in a Ruling dated 10th September 2021, the said District Registrar set aside the order of the Senior Assistant Registrar of 21st December 2020 in which the taxation proceedings were dismissed for want of prosecution. R3 The said District Registrar ordered that the matter be restored to the active cause list. The District Registrar later delivered a Ruling on 2 nd October 2021, awarding costs of KlS0,411.15 to the Appellant. He stated that the District Registrar had indicated in his Ruling that the Respondent had not filed an objection to the Bill of Costs, when in fact the Respondent had filed his objection on the 27th November 2020. The Appellant filed an affidavit in opposition to the Notice of Motion on 16th May 2022, sworn by Jane Ngandu, an Advocate in the employ of Messrs Kaumbu Mwondela, seized with conduct of the matter on behalf of the Appellant. She deposed that it was not in dispute that this Court awarded the Appellant costs in its judgment of 21 st February 2019 and that the said Court also ordered that each party to bear their own costs in its Ruling of 28th November 2019. She further deposed that following these orders on 23 rd January 2020, the Appellant brought an application to file the Notice of Taxation and Bill of Costs out of time, which application was granted on 16th March 2020. The Appellant's Notice of Taxation and Bill of Costs were immediately filed once the Court had authorized the filing out of time. R4 The Appellant's further contention was that the delay in filing the said taxation was on account of clarification being sought from the Court of Appeal as regards the judgment of 21 st February 2019. The deponent lamented about the numerous delays occasioned by the Court to appoint a date for taxation. That eventually a date for 3 rd August 2021 was issued and at the hearing, it transpired that the taxation application had been dismissed for want of prosecution with liberty to restore within 14 days. An application for leave to apply to restore out of time was granted on the grounds that there was no evidence before the Court that the Appellants were served with the process or aware of the proceedings. The deponent further deposed that upon conducting a search on the Court record on 5 th August 2021, it was discovered that a notice of hearing had been issued in the matter on 3 r d November 2020 returnable before the Taxing Master C. Kakela on 21 st December 2020. However, the record revealed that the matter was heard on 2nd December 2021 by Mr. N. Zulu. It was further contended that the Respondent had stated in their application to dismiss the matter for want of prosecution that they were served with the notice of hearing by their firm, when in fact not. Further, the Appellant stated that they were not made aware of the notice of hearing issued by the Court on 3 rd November 2020, and therefore, an application to set aside the order for dismissal for RS want of prosecution was made together with an application to restore the matter out of time. This application was duly served on the Respondent, and copies of the letter of acknowledgement was exhibited evidencing the same. The deponent further stated that the application was initially scheduled for hearing on 20th August 2021, but was adjourned to the 30th August 2021 due to the absence of the Respondent. On the 30 th August 2021, the Court proceeded to hear the Appellant's application to dismiss in the absence of the Respondent, having shown proof of service of process upon the Respondent. The Appellant stated further that the District Registrar made a Ruling on 10th September 2021, setting aside the order of 21st December 2020. This Ruling was served on the Respondent on 14th September 202 1. A notice of hearing of taxation was issued returnable on 28th September 2021. The Appellant exhibited evidence of service of all process upon the Respondent. The deponent stated further that the Respondent did not make an appearance before the Taxing Master during the hearing of 28th September 2021 , nor did he file any objection to the Bill of Costs. On 5 th October 2021, the District Registrar delivered a Ruling awarding the Appellant a sum of KlS0,441.15. R6 The Appellant concluded by contending that the Respondent's application to set aside the Rulings of the District Registrar has no merit. The Appellant urged the Court to dismiss the Notice of Motion for being an abuse of Court process. The Appellant also filed List of Authorities and Skeleton Arguments in support of the affidavit in opposition dated 16th May 2022. The Appellant highlighted that for a Court to dismiss a matter for want of prosecution, there must be an inordinate and inexcusable delay on the part of the Appellant which would likely prejudice the Respondent. Counsel cited the case of Finance Bank of Zambia Limited v Dimitrios Monokadilos Filandraia Kour 1 to support this assertion. In this case Matibini, J. stated that, "Where there has been inordinate and inexcusable delay in bringing or defending an action, this in itself can constitute an abuse of the Court process and therefore warrant the dismissal of an action." The Appellant also cited the cases of Allen V Sir Alfred MC Alpine and Sons Limited2 and Birke H v James3 to show what needed to be proved in order for an application alleging inordinate and inexcusable delay to succeed. This includes the Court being satisfied that there has been inordinate and inexcusable delay on the Plaintiffs or lawyers and that such delay gives rise to R7 substantial risk that it is not possible to have a fair trial of the issue of the action or is such as is likely to cause serious prejudice to the Defendant. The Appellant also cited the case of John R. Ngandu v Lazarous Mwinga4 , where the Supreme Court of Zambia held that: "The trial Judge had no jurisdiction to dismiss the appeal for want of attendance of the Appellant's advocates. In the absence of proof of service of notice of the new hearing date, the only course open to the Court were to allot a fresh hearing date, and to cause notices thereof to be served on the advocates for the parties or to strike the case out of the list, and leave it to the parties to make application to restore." In light of these authorities, the Appellant argued, that where there is non-attendance of a party at a hearing, as was in this case, in the absence of proof of service of the notice of hearing date, the only course available to the Court was to allot a fresh hearing date or to strike out the case off the list and leave the parties to restore the application. The Appellant argued that there was no proof that the notice of hearing for 2 nd December 2020 was served on the Appellant and therefore the Court had no jurisdiction to dismiss the matter. R8 Turning to the issue of whether a Taxing Master could review its decision, the Appellant referred to Order 62 Rule 33 of the RSC which enables any party to any taxation proceedings being dissatisfied with a decision of a taxing master to apply to the taxing officer to review his discretion. Counsel submitted that the Rules of the Supreme Court Practice (White Book) are applicable by virtue of Section 8 Court of Appeal Act which empowers the Court of Appeal to utilize the practice and procedure of the Supreme Court Practice, 1999 (White Book) of England and the practice in the Court of Appeal in England in force up to 31 st December 1999. Counsel argued that by virtue of these prov1s1ons, the District Registrar is empowered to review its decision. Therefore, the Appellants application to set aside the order dismissing the matter for want of prosecution and the application to restore to the active cause list was properly before the District Registrar. The Appellant argued further that the District Registrar was therefore on firm ground to set aside the order dismissing the matter for want of prosecution. The Court was urged to dismiss the Motion with costs. R9 The matter was heard on 17th May 2022. Both Counsel for the parties were before Court. Counsel for the Respondent relied on the Motion and affidavit in support filed on 22nd October 2021 and the List of Authorities and Skeleton Argument of 16th May 2022, while Counsel for the Appellant relied on their affidavit in opposition and List of Authorities and Skeleton Argument of 16th May 2022. The Respondent was granted leave to file an affidavit in reply, which was filed on 19th May 2022. In the said affidavit in reply sworn by Ethel Chibambo Chomba, an Advocate in the employ of Manda & Pasi having conduct of this matter on behalf of the Respondent, the deponent reiterated that the Registrar ought to have taxed the Appellant's Bill of Costs within 3 months from the date of referral to taxation on 16th March 2020. Counsel argued that, the purported taxation however only took place on 5 th October 2021, more than a year and six months from the date of the order. The deponent further contended that the Appellant did not apply for an extension of time for the taxation of the Bill of Costs after the time had elapsed and therefore the District Registrar had no power to tax the costs after the expiration of a period of 3 months from the date of the referral by the Court. The deponent also stated that the District Registrar's ruling of 10th September 2021 was not made pursuant to a review of items allowed or disallowed in a taxation as purported by the Appellant R 10 as no such taxation had taken place. Further, she stated that there was no application for review of the taxation by the Appellants on record. Also, that the application giving rise to the ruling of 10th September 2021 was not made pursuant to an application for review of taxation but an application for restoration of a dismissed matter to the active cause list. The deponent contended lastly that her affidavit exhibited as 'MMZ' that the Respondent had filed its objections to the Bill of Costs but that the District Registrar had absolutely ignored and did not consider the objections to the Bill of Costs. The Respondent's Counsel also filed further Skeleton Arguments on 20th May 2022. I have considered the same although leave to file the said Skeleton arguments was not sought. The gist of the Respondent's arguments are that by virtue of Section 27 of the Court of Appeal Act, taxation of a bill of costs should be undertaken by the Registrar. Hence, the Senior Assistant Registrar sat as a Taxing Master exercising the function of the Registrar when he sat on 21 st December 2020 to dismiss taxation proceedings. Once he decided the matter, the District Registrar had no power to review, vary or set aside his own order as he did in his ruling dated 10th September 2021 as such powers are vested in a single Judge of the Court. R 11 The Respondent argued further that in accordance with Order XII Rule 2 Court of Appeal Rules, the District Registrar had no power to tax the costs after the expiration of a period of 3 months from the date of referral by the Court. The section is couched in mandatory terms with there being no room for extension of time for whatever reasons, the Registrar has no jurisdiction to determine the amount of costs after 3 months from the date when the issue of costs was referred to him. The Respondent argued further that the Registrar misdirected himself by proceeding to taxation without taking into account the Respondent's objections. The Respondent urged this Court to set aside the Ruling of the District Registrar of 10th September 2021 and 5 th October 2021. I have considered the application, the affidavits, skeleton arguments and oral submissions by Counsel. By this application, the Respondent urges this Court to set aside two rulings of the District Registrar of 10th September 2021 and 5 th October 202 1. The application is brought pursuant to Order VII Rule 3 of the Court of Appeal Rules . R 12 The said Order provides as follows: "(l) A person aggrieved by anything done or ordered to be done by the Registrar or Master, other than anything ordered or done by the direction of the Chief Justice, may apply to a single Judge to have that act, order or ruling set aside or varied. (2) An application under sub-rule (1) shall be made by notice of motion supported by an affidavit setting out the complaint and the relief sought." By the foregoing provision, a person aggrieved by any decision of the Registrar may apply to set aside or vary such decision. By ruling of 10th September 2021, the District Registrar decided on an application to set aside the order for dismissal for want of prosecution and to restore matter out of time . The District Registrar proceeded to set aside the Order of 21 st December 2020 which dismissed the Appellant's Bill of Costs for want of prosecution. The Court proceeded to restore the taxation hearing to the active cause list. The question is whether a Taxing Master can review its order or decision. R13 The Respondent contends that the District Registrar had no authority to set aside an order of 21 st December 2020 granted by a Senior Assistant Registrar as it had no power to reverse, vary or set aside its decision. The Appellant argued that the District Registrar did have power to review its decision and that the Appellant's application to set aside the order to dismiss was properly before it. They cited the provision of Section 8 of the Court of Appeal Act which empowers the Court to exercise practice and procedure as provided by the Act and the Rules. It further sanctions the use of the Supreme Court Practice, 1999 (White Book) of England and the Law and practice in the Court of Appeal in England in force up to 31 st December 1999, where the Act or the rules do not provide for a particular point of practice or procedure. The Appellant argued that the provisions of Order 62 Rule 33 of the White Book allows any party aggrieved with any decision of a taxing officer to apply to the taxing officer to review his decision. The provision of Order 62 Rule 33 of the RSC are in my view clear and unambiguous. A party aggrieved with any decision of a taxing officer may apply to the officer to review his decision. R 14 The Appellant being aggrieved by the decision of the District Registrar made on 21 st December 2020 dismissing the taxation proceedings was entitled to apply to the District Registrar which it did, to set aside the said decision. The Appellant having advanced sufficient reasons as to why the order ought not to be sustained particularly that the dismissal had been made in the absence of conclusive evidence that the Appellant had been made aware of the proceedings, the District Registrar was on firm ground to set aside order of 21 st December 2020, having been satisfied with the reasons advanced by the Appellant. By virtue of Order 62 Rule 22 RSC, the District Registrar was empowered to review his decision and set aside the order. I am of the view that the District Registrar was on firm ground and the application to set aside the order of 10th September 2021 accordingly fails. The second limb of the application seeks to set aside the Ruling of 5 th October 2021 on two grounds; firstly, that the District Registrar did not have jurisdiction to hear and determine the application for taxation of costs, 3 months after the date of the referral nor did he have power to extend the time for hearing the application. R 15 The Respondent submitted that Section 27 of the Court of Appeal Act requires that taxation of a bill of costs should be undertaken by the Registrar as prescribed in the Rules. According to the provisions of Order XII Rule 2 of the Court of Appeal Rules, "(l) The question relating to costs shall, unless agreed by the parties, be referred to a taxing officer, and a notice of taxation shall be served on the parties. (2) The taxing officer shall, within three months of the referral under sub-rule (1), ascertain the amount of costs." Order VIII Rule 2 requires that the question relating to costs is to be referred to a taxing officer, who is to ascertain the amount of costs within three months of the referral. The Respondent highlighted that although the judgment awarding costs being delivered on 12th February 2019, the Bill of Costs and Notice of Taxation were only filed on 16th March 2020, after the Court allowed the Appellant to file the taxation documentation out of time. The Respondent further contended that the Registrar was required to tax the costs within 3 months from 16th March 2020. R 16 However, the taxation was only scheduled for hearing on 21 st December 2020, nine months after the referral to the taxing master. It is also evident that although the Bill of Costs and Notice of Taxation having been filed on 16th March 2020, a date of hearing was only issued for 21 st December 2020. What then is the effect of the Registrar's non-compliance of Rule 2 of Order XII Court of Appeal Rules, and not having ascertained the costs within the three months. The Respondent argues that this entailed that the Registrar did not have jurisdiction to entertain the taxation beyond the 3 month period. The second ground upon which the Respondent seeks to set aside the Ruling of 5 t h October 2021 is on the basis that the District Registrar taxed the costs without taking into consideration the Respondent's objections to the Bill of Costs filed on 27th November 2020. The Respondent argued that this failure to consider the Respondent's objection has prejudiced the Respondent who has not been heard on the application. A review of the evidence on record reveals that and taking into judicial notice of the operating framework of this Court, two factors are which have a bearing on the issues aforesaid are very evident. R 17 . . The first issue is that District Registrars and Taxing Officer for this Court were only appointed and assigned to this Court 16th March 2021 . This fact h as a bearing on why the Notice of Taxation filed on 16 th March 2020 was not determined within the 3 provided for under the Rules as it was not pr actical to deter mine the taxation application without the Taxing officers. The secon d fact worth noting is that District Registrar's Ruling of 5 th October 2021 did not take into account the Respondent's objection to Bill of Costs which was indeed filed on 27th November 2020. As such, the Respondent was not h eard on the taxation of the Bill of Costs. For the foregoing reasons, this Court finds it ju stifiable to set aside th e Ruling of 5 t h October 2021 as envisaged under Order VII Rule 3(1) of the Court of Appeal Rules and direct rehearing of the taxation application, and I order and direct accordingly. Each party is to bear their own costs of and incidental to this application. Dated at Lusaka this 7 t h June 2022. ~ arpe-Phi'ff COURT OF APPEAL JUDGE R 18