Indo Zambia Bank Limited v Cecilia Lukutati Byaruhanga (App. No. 97 of 2021; CAZ/08/090/2021) [2023] ZMCA 397 (15 June 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) CAZ/08/090/2021 App. No. 97 of 2021 INDO ZAMBIA BANK LIMITJPD ·,. · · 15 J ~ Ull 7011 · . ·. ~.r.1,PELLANr AND CECILIA LUKUTATI BYARUHANG. A . .....- RESPONDENT .\ '1 ,i ' ; . Before the Hon. Lady Justice F. M. Ghishimba in chamb~r~. •._. For th Appellant : Ms. N. Chibuye & Ms. N. Nachula of Messrs. Malambo & Co. Mr. C. J. Mweemba - In House Counsel For the Respondents; Mr. D. Musonda & Ms. M. Msimiko of Messrs. Mulilansolo Chambers· and Messrs. $ant Chisulo RULING LEGISLATION REFERRED TO: 1. The Rules of the Supreme Court of England, 1999 Edition. 2. The Supreme Court Rules, Chapter 25 of the Laws of Zambia 3. The Legal Practitioners (Costs) Order, Statutoriinstrument No. ·6 of 2017 This matter has come by way of referral from the Learned Taxing Master to a single judge for determination of a preliminary question. The question referred to this court was framed as follows by the CamScanner R.2 "'·. 1£1)0ng Master, "whether co-counsel must file a separate Bills of costs as Order 62 rule 29(7)(c)(ii) and (iii) of the Rules of the ( Supreme Court of England, 1999 Edition (the RSC)" is not clear". The background precipitating the matter is as follows, in the High Court, the respondent was represented by Messrs. Sam Chisulo and Company. The appellant was represented by Messrs. Malambo and Company. On 2nd March, 2021, the High Court delivered a ruling. The appellant being dissatisfied, filed a notice of appeal on 16th March, 2021 through its advocates, Malambo. ~d Comp~:y. On 27th July, 2021, Messrs. Nchinto and Nchinto filed a "notice of appointment of advocates" for the appellant and jointly filed 'appellant's heads of arguments in reply' ~t~ M~ssr_s. Malambo and . ·., . Company. On 15 th February, 2022, Messrs. Mulilansolo Chambers filed a "notice of appointment as co-advocates" for the respondent. On 8th April, 2022, this court delivered its judgment in the matter. The said judgment shows that the appellant was represented by Mr. Nchinto, S. C and Mr. Siansumo of Messrs. Nchinto & Nchinto and Malambo & Company respectively. The respondent was represented by State Counsel Mr. Chisulo and Mr. Musonda of CamScanner R.3 _r,,1essrs. Sam Chisulo & Company and .. Messrs. Mulilansolo & company respectively. On 18th July, 2022, the respondent's advocates, Messrs. Sam Chisulo & Company and Messrs. Mulil~nso~o Chambers issued . . . summons for an order for leave to commence taxation proceedings out of time. In an order dated 16th August, 2022, leave was granted to commence taxation proceedings. A notice of taxation was filed on 16th September, 2022 with the attendant bill of costs and bundle of - . documents by Messrs. Sam Chisulo & Company. When the matter came before the Taxing Master on 16 th November, 2022, Learned Counsel for th~ ·respondent, Mr. Muso'r1da informed the court that they were ready to proceed . On the other hand Ms. Chibuye, Learned Counsel for the appellant, raised a point of law, that the notice of taxation was filed· by Messrs .. Sam Chi~ulo & Company without any indication in what capacity Mr. Musonda was appearing in that taxation. According to counsel, Messrs. Mulilansolo neither appeared in the Court of Appeal nor filed a notice ··-.-·.·. : . .. ·· . : of appointment. Mr. Musonda expressed shock at the objection raised by Ms. Chibuye noting that in our judgment, we awarded costs to the CamScanner R.4 respondents and that Messrs. MuliJansolo Chambers appears on record. That a perusal of the judgment shows that there was no objection to the appointment of the firm and -that .the court was satisfied with the appearance of the firm. Ms. Chibuye maintained that the notice of taxation was filed by Messrs. Sam Chisulo & Company without any ipdjcation of Messrs. ~ulilansolo Chambers on the record. She argued that Messrs. Mulilansolo Chambers may have appeared as agents, though 'this was not stated. She insisted that even on the record, Messrs. Mulilansolo Chambers were neither served nor appointed as advocates for the respondent. In response, Mr. Musonda submitted that Order 62 rule 29 of the RSC does not state that where there are two advocates or two . . firms, there must be separate bills of costs. That nothing curtails the firms in this matter in filing one bill of costs, which is only logical, as both firms represented one party. Ms. Chibuye argued that each firm represented itself and the otice of taxation clearly indicates Chisulo & Company. Had l\tlessrs. ulilansolo & Company wanted, they should have filed its' own CamScanner R.5 ootice of tru ation and indicated the nature of business on the notice s per Order 62 rule 29(7)(c)(iij and (iiij .of the RSC. In her ruling the Learned Trucing Master noted that though co coun el ,va on record the only deficiency was that the bill of costs does not reflect the name of co-counsel. S1:le then. referred tl)e matter to the single judge for determination of the question whether co counsel must file a separate bill of costs as Order 62 rule 29(7J(c)(ii) and (iii) of the RSC is not clear on the matter. When the matter came for hearing before me, Ms. Chibuye contended that a perusal of the disputed bill of costs herein, indicates two advocates. She maintained her position that each law firm must file its own bill of costs and supporting documents. That the inclusion of another firm on a bill of costs should not be allowed. Mr. Musonda responded that they were of the view that nothing curtails two law firms representing a respondent from filing one or the same bill of costs. He argued that Order 62 rule 29 of the RSC does not expressly forbid two firms from filing a joint bill of costs. Ms. Chibuye reiterated that the position taken by respondent is ot correct as the bill of costs in issue, is not a joint bill of costs. The a.id bill was filed by Messrs. Sam Chisulo & Company. She further CamScanner R.6 Bfgued that the notes under Order 62 rule 29 of the RSC, that is 7b2, state that the firm carrying out the work is Lh one to file the documents and that the inclusion of advocat s working from other firms is improper. In that regard, she subqiitted that the bill of costs is improperly before the court and that any reference to the advocates aside from Sam Chisulo, should not be allowed. That each firm must exhibit its T-Pin and VAT Certificates. I have considered the question ref erred to this court ( single Judge) whether co-counsels from different law firms representing a party can lodge one bill of costs in taxation of costs. I have also considered submissions by the Learned Counsel for the parties. The record is clear that Messrs. Mulilansolo Chambers filed a notice of their appointment as co-advocates for the respondent on 15th February, 2022 and represented the respondent in the appeal. See the Court of Appeal judgment dated 8 th April, 2022. Therefore, it is not in dispute that the said firm was on record. It is also not in dispute that the Notice of Taxation dated 16th •1 · • September, 2022 was filed by Messrs. Sam Chisulo without any ention of the co-advocates, Messrs. Mulilansolo Chambers. A erusal of the Bill of Costs shows that both the -Learned State CamScanner R.7 counsel Sam Chisulo and Counsel D. Musonda appear in the itemised billing of the costs filed by Messrs Sam Chisulo. The issue for determination is whether it is pr9per for two law . ._, .... firms or advocates from different firms to appear in one and the same bill of costs that is filed by one law firm or to file one joint Bill of Costs. Order 62 rule 29(7)(c) of the RSC couched is in the following terms: (7) A party who begins proceedings for taxation must, at the same time, lodge in the appropriate office - . '·. . . ~ (c) Unless the taxing officer otherwise orders, a bill of costs (i) in which the professional charges and the disbursement are set out in separate columns and each column is cast, and (ii) which is endorsed with the name, or firm and business address of the solicitor whose bill it is, and (iii} which is signed by that solicitor or, if the costs are due to a firm, by a partner of that firm; A reading of the aforesaid provision shows that . it is written :n e singular and refers to only one advocate or firm filing a bill of sts in respect of that advocate or firm. It is silent on whether two more firms may file one bill of costs f~r . r~presenting the same nt. CamScanner R.7 counsel Sam Chisulo and Counsel D. Musonda appear in the itemised billing of the costs filed by Messrs Sam Chisulo. The issue for determination is whether . it is pr~per for two law • • I · ' • • ' firms or advocates from different firms to appear in one and the same bill of costs that is filed by one law firm or to file one joint Bill of Costs. .' . •.• Order 62 rule 29(7)(c) of the RSC couched is in the following terms; (7) A party who begins proceedings for taxation must, at the same time, lodge in the appropriate office - ' '. (c) Unless the taxing officer otherwise orders, a bill of costs (i) in which the professional charges and the disbursement are set out in separate columns and each column is cast, and (ti) which ts endorsed with the name; or firm and business address of the solicitor whose bill it ts, and (iii) which is signed by that solicitor or, if the costs are due to a firm, by a partner of that firm; A reading of the aforesaid provision shows that. it is written ~n the singular and refers to only one advocate or firm filing a bill of costs in respect of that advocate or firm. It is silent on whether t\\'O or more firms may file one bill of costs for representing the same client. CamScanner R.8 With respect to taxation proceedings m the Supreme Court, Rule 7 of the Second Schedule to the Supreme Court Rules, Chapter 25 of the Laws of Zambia provides that: The Taxing Officer may, in respect of appearance in Court, allow as party and party costs- (a) In any matter where two advocates are employed arid the ·Court has certified that the case warranted such employment, the reasonable fee consequent thereon; The above provision is similar to Rule 5 of the Legal Practitioners (Costs) Order, Statutory Instrument No. 6 of 2017 ·:~ which is in the following terms: S. (1) In any proceedings in the High court where costs are allowed to any practitioner, they shall be taxed in accordance with the scales of costs set out in the Schedule. (2) Where the trial Judge certifies that there were sufficient grounds arising out of the nature of importance, or the difflcu lty or urgency of the case to justify the appearance of two or more practitioners as counsel, the cost allowed in respect of each .practitioner shall be . . . . . ,· . taxed in accordance with the scale costs set out in the Schedule. From the above, it can be deduced that where two or more advocates, or in deed, two or more firms, are retained to represent a party, the Court is required to certify that the nature of the case or issues to be determined, warrant the appearance of two or more CamScanner R.9 This is meant to protect the other party from being , . , . ', rnade to pay more costs than is necessary in the circumstances. No such provision exists in the Court of Appeal Rules, 2017. However, I take the view that the provisions in the Supreme ~~urt Rules and Legal Practitioners (Costs) Order, 2017 are a useful guide in determining costs in this court where two or more practitioners or firms are retained by a litigant. I will not delve into the issue of whether or not the nature of the case required appearance of more than two practitioners from two law firms. This is because when we heard the appeal, we did not question this. Therefore, the court did a11o·w· .the repr·esent1:ttion by both firms. Reverting back to the issue at hand, I' am of the firm view that Messrs. Mulilansolo Chambers as co-advocates of the respondent, ought and must lodge a separate bill of costs in respect of its own .notice of taxation. They cannot ride on a bill of costs filed by Messrs Sam Chisulo and Co. It is procedurally wror1:g and ~1:lCQ!,IlPetent for a . . . ~ firm to file a bill of costs representing work undertaken by two practitioners from separate law firms. CamScanner R.10 Further' any reference t 0 any other advocate aside from Messrs sarn Chisulo in the b -11 1 costs subject of taxation, should not be allowed. Having held th t . . biil of costs repres a it 1s not prop~r_ for a practitioner to file a t' . en ing work undertaken by a separate law firm. · · · ·. · ·' · · For the forgoing reasons, I uphold the issue and hold as follows; (l) That the bill of costs on record is improperly before the Taxing Master and I order that it be accordingly amen~ed by life·~;;; Sam Chisulo and Company. 12) That Messrs Jlfulilansolo Chambers do hereby file its own separate Bill of Costs in respect of services re_ndered for ~~ation before the . '• :: learned Taxing Master. In respect of costs of this application, the parties shall bear their own costs due to the nature of the issue raised. Dated the 15th day of June, 2023 Hon. Mrs. Justice F. M. · Chishimh~ -. COURT OF APPEAL JUDGE CamScanner