Paseli v Kazembe (Civil Cause 74 of 2017) [2018] MWHC 12 (18 April 2018)

REPUBLIC OF MALAWI IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE N0.74 OF 2017 ALI PASELI........................................................................................................................ CLAIMANT BETWEEN: GERLAD KAZEMBE........................................................................................................ DEFENDANT AND CORAM Mrs T. Soko Assistant Registrar Tandwe Counsel for the claimant Msungama Counsel for the defendant Mrs Mkandawire Court Clerk RULING BACKGROUND The matter herein came on 21st February 2018 for taxation of costs following an order to vacate an injunction which was granted on 18th July 2017. However there was a preliminary objection from the claimant on the ground that the filing of the notice of appointment for taxation of costs and the bill of costs were premature the same having been filed before the conclusion of the whole proceedings thereby rendering the said notice frivolous, vexatious and abuse of the Court process. The claimant therefore sought an order dismissing the notice with costs. Counsel for the claimant referred the Court to Order 31 r. 12(1) of the Courts (High Court) (Civil Procedure) Rules (CPR) which basically states that a bill of costs shall be filed at the conclusion of the whole proceeding. Further Counsel stated that the term whole proceedings should be understood as the whole action. Counsel also referred the Court to Order 5 r. 1 of the CPR. Additionally, Counsel argued that the Judgment was made on a preliminary application. Counsel said there is an originating summons that has to be heard and he equated the position under 0. 31 r. 12(1) of the CPR with the position under Order 62 r. 8(1) of the Rules of the Supreme Court and practice note 62/8/1 where it is stated that a cause or matter is concluded when the issue is determined. Counsel concluded that an interim order does not finally resolve the issue. Counsel prayed that the notice be dismissed with costs. In reply Counsel for the defendant stated that there is an order made by Honourable Justice Tembo dated 18th July 2017 and the defendant succeeded in that particular case. Counsel said that the issue in that matter was that a claimant made an application for injunction and the defendant made an application for the same to be discharged. The defendants succeeded and to the defendant’s side the matter was concluded. Counsel pleaded that the defendant must not be denied the fruits of litigation. He prayed for the objection to be dismissed. Issue Whether the matter herein was concluded THE LAW Order 31 r. 12(1) of the Courts (High Court) (Civil Procedure) Rules provides that: A bill of costs shall be filed with the Court for assessment within 3 months from the date of the costs order and the bill shall be filed at the conclusion of the whole proceeding unless the Court orders otherwise. Practice Note 62/8/1 of the Rules of the Supreme Court provides that: 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 forthw ith."... a cause or m a tte r... is concluded when the court in question has finally determined the matters in issue, whether or not there is an appeal from that determination" Determination In the present matter, the matter began by originating summons and the claimant sought an order of injunction restraining the defendant from obstructing, entering or interfering with the safe enjoyment of the land plot number MC181. The claimant also sought declarations that the plaintiff has an interest in the land, that the sale agreement was not vitiated and that the sale of the land was done in the right manner. The facts disclosed that the claimant bought a land from the defendant’s step sister and the land was customary in nature. Honourable Justice Tembo granted an interlocutory order for injunction and later vacated the order on the ground that the land in issue was customary land and the plaintiff’s claim was an unlawful attempt to buy use and occupational rights in customary land which could not be sold by Ellen Kazembe as she had no title to it. In the Courts view the order that the Court made was on a preliminary issue and the main action has not been disposed of. The matter shall be concluded when the originating summons shall be heard and determined in its entirety and that will be a conclusion of the whole proceedings according to Order31r.12 (1) of the CPR. I have read the Order of the Court and finds that the Court did not order the costs to be taxed forthwith. On that basis the Court dismisses the notice of taxation of costs on the ground that it was filed prematurely. Pronounced in chamber on this day of T. Soko Assistant Registrar