Investrust Bank Plc v Andrich Freights Limited and Ors (Appeal No. 10 of 2020) [2020] ZMCA 155 (20 November 2020)

(Civil Jurisdiction) BETWEEN: INVESTRUST BANK PLC APPELLANT AND ANDRICH FREIGHTS LIMITED 1st RESPONDENT ANDREW ZINDHLU LUBUSHA 2 nd RESPONDENT PATRICIA ZULU 3 rd RESPONDENT CORAM: Chashi, Lengalenga and Majula, JJA ON: 12th and 20th November, 2020 For the Appellant: T. Sakala (Ms.), Messrs Fraser Associates For the Respondent: NI A JUDGMENT CHASHI JA, delivered the Judgment of the Court. Cases referred to: 1. Bank of Zambia v Vortex Refrigeration Company Limited and Dockland Construction Company Limited - SCZ Appeal No. 004 of 2013 Legislation referred to : -)2- 1. The Legal Practitioners Act, Chapter 30 of the Laws of Zambia Rules referred to: 1. The High Court Rules, High Court Act Chapter 27 of the Laws of Zambia 2. The Supreme Court Practice (White Book) 1999 1.0 INTRODUCTION 1.1 This appeal emanates from the Ruling of Lady Justice Dr. W. S . Mwenda, High Court (Commercial Division) delivered on 20t h June 2019. 1. 2 In the said Ruling, the learn ed Judge dismissed the Appellants application for review of the Taxing Ma sters ruling 2.0 BACKGROUND 2 . 1 The parties in the court below filed in to court a Consent Judgment dated 24th August 20 16. Costs and incidental were granted to th e Appellants, to b e agreed by the parties and in default to be taxed. -J 3- 2. 2 Upon failing to agree, the Appellant took out a bill of costs for taxation before the Taxing Master. The said bill of costs was opposed by the Respondents. 2 .3 After considering the bill of costs, the opposition and the submissions by the parties, the Taxing Master delivered a ruling on 3 r d March 201 7. In the said ruling, the Taxing Master dismissed the bill of costs in its entirety. 2.4 The Appellant then applied before the Taxing Master for review of the Taxation, which application was dismissed on 12 th May 2017. As a result, the Appellant applied to the learned Judge in the court below for review of what they termed "The Twang Masters Certificate" given by way of a ruling dated 12th May 2017. 2 .5 The application for review was brought pursuant to Order 40 / 5 (1) - (4) of The High Court Rules (HCR) 1 . The application was opposed and after considering the affidavit evidence and the provisions under Order 40 / 5 HCR, the learned Judge made the following findings: (i) That it was not in dispute that the bill of costs filed on 8 th September 2016, was taxed -J 4- and wholly dismissed by the Taxing Master, who rendered a ruling to that effect. (ii) That it was also not in dispute that the Appellant applied to the Taxing Master for review of taxation, which application was dismissed. (iii) That it was common cause that the Taxing Master did not issue a certificate since she had dismissed the en tire bill of costs and there was nothing in terms of amounts to certify. 2.6 The learned Judge in view of her findings agreed with the submissions by Counsel for the Appellant that the Taxing Master rightly issued a ruling in which she advanced reasons for the dismissal of the bill of costs and that in the circumstances, there was nothing irregular about the Taxing Master's decision to issue a ruling. 2 . 7 As regards the prov1s10ns of Order 40 / 5 HCR, in particular 5 (2), the learned Judge opined that the production of a certificate signed by the Taxing Master • -J 5- certifying the amounts allowed after taxation of the bill of costs is a condition precedent to the application for review of the Taxing Master's decision. That therefore, since no certificate was issued by the Taxing Master, the application for review was improperly before the court. That further, the court did not have power to deem the ruling as a certificate for purposes of enabling the Applicant to meet the requirements of Order 40 / 5 HCR. 3.0 THE APPEAL 3.1 Dissatisfied with the Ruling, the Appellant has appealed to this Court advancing three grounds of appeal couched as fallows: (i) Having rightly found that 1n the circumstances there was nothing irregular about the Taxing Master's decision to issue a ruling as opposed to a certificate, the erudite Judge nonetheless fell in serious error both in law and fact when she contradicted herself by finding that the production of a certificate signed by the Taxing Master was a condition ,,, -J 6- precedent to the application for review of the Taxing Master's decision before her. (ii) The court below erred in both law and fact when it held that the Appellant had the option of appealing against the Taxing Master's ruling when Order 40 / 5 HCR relied upon by the Appellant for review of the Taxing Master's decision did not give such option. (iv) The erudite Judge in the court below erred in both law and fact when she held that the application for review of the Taxing Master's decision was improperly before her in the absence of a certificate by the Taxing Master, when the ruling issued by a Taxing Master in the circumstances was appropriate. 4.0 ARGUMENTS IN SUPPORT OF THE APPEAL 4.1 Ms. Tembo, Counsel for the Appellant argued the first and third grounds of appeal together. It was her contention that the issue stemming from these grounds of appeal is whether or not the learned Judge was on -17- terra firma in finding that the Taxing Master ought to have issued a certificate of taxation in order for the Appellant to acquire the right to take out its application for review and consequently holding that the application before her was improper in the absence of a certificate. According to Counsel, the answer to the aforestated question is in the negative. 4.2 It was Counsel's submission that the powers of Taxing Master in the court below vis a vis the bill of costs was to determine all issues pertaining to the presented bill of costs and make a determination thereon. That in the court below, the Taxing Master did so by issuing a ruling which effectively dismissed the entire bill of costs and as such, there were no costs needed to be certified as having been taxed. 4.3 It was submitted that 1n the circumstances and the facts of the case, the ruling issued by the Taxing Master served the same purpose as a certificate of taxation. That to that effect, it was not necessary for the Taxing Master to issue a certificate. It was Counsel's argument, that having come to that conclusion, it was -J 8- contradictory of the court below to find that the issuance of a certificate by the Taxing Master was a condition precedent upon the Appellant taking out summons for review before her. 4.4 It was submitted that the court below was in senous error when it proceeded to dismiss the application as there was no irregularity in the same. That the application could not have been improperly before the court below as the ruling from which the same arose was properly issued. 4. 5 In arguing the second ground of appeal, Counsel submitted that, the appropriate procedure for airing grievances with the manner in which a bill of costs has been determined is well set out in the provisions of Order 40 / 5 HCR and the same do not provide for appeal. Our attention was drawn to the provisions of Order 40 / 5 which provides as follows : "5(1) Any party who is dissatisfied with the decision of the taxing master to allow or disallow any item in whole or in part on review under the two last foregoing rules or -] 9- with the amount allowed in respect of any item by the Taxing Master on any such review, may apply to a Judge for an order to review the taxation as to that item or part of an item. (2) An application under this rule for review of a taxing master's decision in respect of any item may be made at any time within fourteen days after the taxing masters certificate in respect of that item is signed, or such longer time as the taxing master at the time when he signs certificate, or the court at any time may allow. (3) An application under this rule shall be made by summons and shall except where the Judge thinks fit to adjourn into court, be heard in chambers. (4) Unless the Judge otherwise directs, no further evidence shall be received on the hearing of an application under this rule, and no ground of objection shall be raised which was not raised I' -J 10- on the review by the taxing master, save as aforesaid, on the hearing of any such application the Judge may exercise all such powers and discretion as are vested in the taxing master in relation to the subject matter of the application. (5) On an application under this rule, the Judge may make such Order as the circumstances require, in particular may order the taxing master's certificate to be amended, or except where the dispute as to the item under review is as to amount only, order the item to be remitted to the same or another taxing master for taxation." 4 .6 According to Counsel, it is evident from the aforestated provisions that they provide for review and not appeal against a determination by the Taxing Master. That the granting of leave to appeal by the Taxing Master was done under a misconception of the law. .. -J 11- 4. 7 Our further attention was drawn to the prov1s1ons of Practice Direction No . 4 o f 1960 which provides as follows: "Every application under Order 39/2 C HCR to review a taxing master's decision in respect of taxation of a bill of costs shall be made to a Judge by summons to be served within three days after issue and returnable on a day to be appointed by the Judge ... (3) After the issue of summons, the party applying shall forthwith give notice thereof to the taxing master and on receipt of such notice the taxing master shall lodge with the deputy assistant registrar attached to the Judge, the bill of costs, and the objections and answers made and given by the parties respectively at the review of the taxation of the bill of costs by the taxing master. (4) Each party shall within four days after service of the summons lodge with the said deputy assistant registrar the documents produced in evidence by that party at the hearing before the taxing master -J 12- relating to the matter under review; and the deputy assistant registrar shall then deliver these documents and the summons, objections and answer's mentioned in paragraph (3) to the Judge. " 4.8 It was Counsel's submission that from the aforestated provisions, the Appellant was on form ground in the manner in which it proceeded. The Appellant urged us to allow the appeal with costs. 5.0 CONSIDERATION AND DECISION OF THE COURT 5.1 We must state from the onset that the Respondents neither filed the Respondent's heads of argument nor appeared for the hearing of the appeal. We decided to proceed and hear the appeal on being satisfied that they were served by the Appellant with the record of appeal and the Appellant's h eads of argument. In addition, our registry staff confirmed that, they were served with the cause list. In the premise, the determination of the appeal will not prejudice the Respondents as they were aware of the proceedings, but decided not to participate. ,. -J 13- 5. 2 We have considered the grounds of appeal; the Appellant's arguments and the Ruling being impugned. We shall deal with the first ground of appeal separately and the second and third grounds of appeal together as they are entwined. 5.3 The first ground of appeal alleges that the learned Judge having found that there was nothing irregular about the Taxing Master's decision to issue a ruling as opposed to a certificate, it was contradictory for her to make a finding that the production of a certificate signed by t h e Taxing Master was a condition precedent to the application for review of the Taxing Master's decision before her. 5.4 In determining this ground of appeal, we had recourse to the ruling of the Taxing Master which was delivered extempore on 3 rd March 201 7 and appears at pages 153 - 157 of the record of appeal (the record). We note that, what was before the Taxing Master was a bill for taxation. There were also objections to the bill. 5.5 The powers of the Taxing Master are provided for under Order 62 / 19 of The Rules of the Supreme Court (RSC) 2 . Further Order 62/20 RSC provides for supplementary powers of the Taxing Master in the taxing of bills. In addition -J 14- to th e aforestated, the Taxing Master has a general power under 62/21 RSC to extend time in relation to taxation proceedings on such terms as h e may in his discretion impose. 5.6 It is evident from the provisions of Order 62 / 19 and 62/20 and the other attendant powers under Order 62 RSC, that the duty of the Taxing Master in taxing of bills, is to consider the bill for taxation before him, and the objections thereto and a llow or disallow wholly or in part the items before him and provide the answers. We note that in the matter before us, this was n ot done by th e Taxing Master. 5.7 The Taxing Master in the aforestated ruling did not tax the bill of costs. Sh e simply looked at the bill and the objections and the submissions by Counsel on both sides and proceeded to render a ruling. In doing so, she considered the effect of Statutory Instrument No. 8 of 2001 , Order 40 / 1 HCR and Sections 76 and 77 of The Legal Practitioners Act1 and opined that the amounts claimed in th e Applicant's bill of costs were misconceived. Fur ther that the applicant had a lready recovered its costs and it would therefore be ... -J 15- unfair and unjust to penalize the respondents to pay costs that they did not agree to and which have not been incurred. 5.7 The Taxing Master has no powers to issue a ruling on taxation of bill of costs. After taxing of the bill, it is mandatory as provided for under Order 40 / 5 HCR for the Taxing Master to issue a certificate of taxation and not a ruling as she did. The learned Judge therefore erred when she made a finding that it was clear that the Taxing Master dismissed the entire bill of costs as such, there was nothing to allocate in terms of the amounts by way of certificate and rightly issued a ruling in which she advanced reasons for the dismissal of the bill of costs. Further that the decision to issue a ruling as opposed to a certificate was not irregular in the circumstances. 5.8 In the view that we have taken, it was irregular for the Taxing Master to issue a ruling on the taxa tion of bill of costs as opposed to a certificate of Taxation. The Taxing Master should have taxed the bill and issued a certificate. It must b e noted that when legal issues arise during taxation of the bill or issues bordering on interpretation of the law, the Taxing Master must halt the taxation and refer the issue(s) -J 16- arising to a Judge for determination. The Taxing Master is under that mandate as he has no power to interpret legal issues or provisions of the law, which is outside the Taxing Master's powers as provided for under Order 62 RSC. The aforestated was given efficacy by the Supreme Court in the case of Bank of Zambia v Vortex Refrigeration Company Limited and Dockland Construction Company Limited1 . The facts of that case as set out by Malila, JS were that, the respondent was the successful party in an action that was determined by the Supreme Court ... The parties' failure to reach agreement prompted the respondent to take out a notice of taxation together with a bill of costs, returnable before the master of the Supreme Court. Enlivened by the perceptible irregularities in regard to the bill of costs filed with the notice, the appellant promptly filed a notice to raise preliminary issues pursuant to Order 33/3 and 14A of The Rules of The Supreme Court (RSC) 2 . Malila JS, then went on to state as follows: "On the scheduled day for taxation before the master of Supreme Court, the parties rightly agreed that the • .,., -J 17- preliminary issues raised by the appellant should first be determined by a single Judge of the Supreme Court. As the master could not proceed with the taxation until the preliminary issue had been determined. The matter was referred to me as a single Judge." 5.9 Arising from what we have stated above, the learned Judge was on firm ground when she concluded that the production of a certificate of taxation signed by the Taxing Master was a condition precedent to the application for review of the taxing Master's decision before her as it is as earlier alluded to mandatory for the Taxing Master to issue the said certificate. 5.10 The second and third grounds of appeal raise two issues. Firstly, whether the Appellant had the option of appealing against the Taxing Master's ruling, when as argued by the Appellant, Order 40 / 5 HCR does not provide for such option. In the view that we have taken in the first ground that the delivery of a ruling as opposed to the issuance of the certificate of taxation, the issue of an appeal would not have arisen if the Taxing Master had followed the law and issued the certificate of taxation. It was therefore a misapprehension .,. -J 18- of the law to hold that there was an option of an appeal when the law provides for a review process. 5.11 The second issue is whether the application for review was improperly before the learned Judge on an application for review of the Taxing Master's decision in the absence of a certificate of taxation. As we earlier alluded to, the Taxing Master did not tax the bill and therefore did not issue the requisite certificate to necessitate an application for review of the bill of taxation. In the circumstances of what transpired and taking into consideration the provisions under Order 40/5 HCR and Practice Direction No. 4 of 1960, we find no basis to fault the learned Judge for taking the view that the application for review was improperly before her. 6.0 CONCLUSION 6 . 1 In view of the failure by the Taxing Master to tax the bill of costs and issuing a certificate of taxation and in view of the Taxing Master delivering a ruling which is not provided for under the law, bordering on interpretation of legal issues and provisions of the law, the Appellant in this appeal partially succeeds. This is a proper case for referring back to the High Court for taxation of t h e bill before a different Taxing Master • -J 19- and we accordingly Order. Costs of this appeal are to the Appellant. Same are to be taxed forthwith in default of agreement. JUDGE F . M. LENGALENGA COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE