Rosemary Bwalya v Zulu and Anor (Appeal 60 of 2008) [2010] ZMSC 4 (12 October 2010)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) BETWEEN: SCZ No. 27 of 2010 page 600 Appeal No, 60/2008 ROSEMARY BWALYA APPELLANT AND TENSON ZULU MWANAMUTO INVESTMENTS LTD 1st respondent 2nd respondent LILIAN MUSHOTA (T/A MUSHOTA & ASSOCIATES) INTERVENING PART Coram: Chirwa, Chitengi, Silomba, JJS On 21st October 2009 and 12th October 2010 For the Appellant: Not Present For the Intervening Party: Mr V. B. Malambo SC, Malambo & Co. Ms M. Mukuka, Malambo & Co. For the Respondents: Mr J. Chashi, Mweemba Chashi & Partners JUDGMENT Chirwa, JS., delivered the Judgment of the court. Cases refereed to: 1. Count Tolstoy - Miloslavsky V Lord Aldington [1996] 2 All E. R. 556 2. Ridehalgh V Horsefield And Another And Other Appeals [1994] 3 All E. R 848 3. Myers V Elman [1940] 2 All E. R. 485 4. Paragraph 719 of Halsbury’s Laws OfEngland Vol.37 4th Edition J2 - When we heard this matter on 21st October 2009, the late Mr Justice Chitengi was still on the bench and had not retired. Since the hearing, he has retired and sadly passed on. May his soul rest in peace. This Judgment is therefore by the majority. This is an application by way of Motion to Amend or vary order of the court made on 16th April 2009. The background to our order is that the intervening party was counsel for the appellant in Appeal No. 60/2008 between herself and the respondent, Mwanamuto Investments Limited. The record of appeal, on the cover, showed that it was prepared by Messrs Mushota & partners. Before the hearing date of 16th April 2009, there was filed in court, by the intervening party, a notice of withdrawal of representation. The appellant told the court that the intervening party, who was her lawyer and who she felt was very competent, had let her down at a very short notice and she had no option but to withdraw the appeal and commence fresh proceedings in the High Court. So when the matter came up on 16 April 2009, the intervening party was not in court. In withdrawing the appeal the appellant asked that the cost be in the cause as she intended to commence the process in the High Court as the 2nd respondent had never filed any defence. In his reaction on the question of costs, Mr Chashi then acting for the 1st respondent told the court that the matter as it stood then was between the - J3 - appellant and the 2nd respondent and that had he been served with the withdrawal notice earlier, he would not have put in any extra work. In making the order for costs, we observed that the appeal as it stood was totally misconceived and frivolous and any counsel on properly advising himself/herself ought to have advised the client not to proceed with the appeal and as counsel was not present to be heard as to why costs should not be made against herself personally, we made an interim order of costs against her (the intervening party) and that she was at liberty to apply to court to be heard within 21 days and failure to do so, the interim order was to be final. The record shows that there was no application by the intervening party to be heard on costs. The application is supported by an affidavit sworn by the intervening party herself. In this affidavit, the intervening party admits having been counsel for the appellant in a number of causes which she did not commence herself. She alleges in the affidavit that she advised the appellant to accept the lower courts’ decision in this matter but the appellant insisted that the appeal should go ahead. The order for costs was served on her on 4th June 2009, but notes that the order does not state why she was made to pay costs. She further states that had she been given time to be heard, she would have explained to the court the steps she took to explain to the appellant the need to accept the lower court’s decision but because of the appellant’s insistency, she filed the appeal. J4- There is what purports to be an affidavit in opposition to the application. We say it purports to be affidavit because it was never sworn before a Commissioner for oaths, it was merely filed in court on 30th July 2009. It is of no value as evidence as to its contents but it merely shows that the appellant was aware of the challenge of the order for costs. Before we go into details and merits of this application, it is necessary to look at the circumstances the order was made. The appeal from which these proceedings emanate from was scheduled for hearing on 16th April 2009 having been adjourned previously on a number of occasions. In court we observed that the intervening party had filed a notice of withdrawal of representation of the appellant and as such she was not in court. The appellant was in court and she expressed disappointment with the non-appearance of her advocate, the intervening party, whom she claimed to have trusted as a competent lawyer. The court, on its own motion, awarded interim order of costs against the intervening party because at the previous sitting the court invited the intervening party to seriously look at the appeal as it looked frivolous and we expected positive result. The interim order made on that day gave 21 days for the intervening party to show cause why the interim order should not be made absolute. There are two incidents that followed our issuing interim order which have disturbed us. The first is the revelation that the order was only served on the intervening party on 4th June 2009. Secondly the order prepared by the - J5 - appellant omitted the 21 days given to the intervening party to show cause why the interim order should not be made absolute and unfortunately the court signed this incomplete order. The other thing that is baffling is that it was filed, obviously after it was signed by the court, on 23rd July 2009. So what order was served on the intervening party on 4th June 2009? Coming to the arguments supporting this application, we totally agree with the authorities of COUNT TOLSTOY - MILOSLAVSKY V LORD ALDINGTON1, RIDEHALGH V HORSEFIELD AND ANOTHER AND OTHER APPEALS as they relate to wasted costs. Here we were dealing with our inherent powers to deal with an officer of the court who abuses court process. In our exercising that power, we had given the intervening party a chance to exculpate herslf, but the order served on her did not carry this message and was more than 6weeks after the order was made. For this, cases of MYERS V ELMAN3 and Paragraph 719 of HALSBURY’S LAWS OF ENGLAND4 Vol.3 7 4th Edition are illustrative. The affidavit of the intervening party explains the circumstances of her relationship with the appellant and the intervening party’s character. When she took over the various cases which were commenced by other advocates, she was aware that the appellant had differed with these advocates and when she started dealing with the appellant she found out that the appellant never accepted her advice. When a lawyer accepts instructions from a client, he J6 - has a duty to that client to advise him or her on points of law raised by the problem brought by the client. Should the matter come to court, the lawyer also owes a duty to the court to maintain its dignity and integrity. Should the client not accept the advice of the lawyer, the lawyer is not bound or obliged to continue acting for the client. When preparing the record of appeal, the intervening party was very sure that the appeal was frivolous and an abuse of court process. If she merely wanted to assist a stubborn client in preparation of the record, she should have given the client the prepared record and not to put her firm’s address on it and even file it in court knowing fully well that the appeal was a waste of time. We are apprehensive that a lawyer can be intimidated by a client to go against his or her professional reason as the intervening party was, where she says in paragraph 6 of her affidavit that “I withdraw from acting for the appellant because it became impossible for me to advise her professionally. She took my advice to accept the lower court’s decision as evidence of my unwillingness to carry out her instructions. I repeat that this appeal was insisted upon by the client against my advice.” To us, even if the intervening party had been served with the correct order and in time, she would have rendered her exculpatory statement in the form and - J7 - manner of her affidavit. It is professionally unacceptable that a lawyer can go against his/her professional conviction and proceed with the matter because the client insists, knowing fully well that the process is a waste of court’s time. It is this conduct that we condemn and as was emphasised in MYERS V MYERS as page 509 per Lord . Wright that:- “The term ‘professional misconduct’ has often been used to describe the ground on which the court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the court and to realise his duty to aid in promoting, in his own sphere, the cause of justice.” As we have stated, the intervening party should not have used her office as originating source of the appeal and file the record. The explanation is unacceptable to us but having highlighted the circumstances, we will vary our order as follows. We condemn the intervening party in costs to the tune of 40% of the taxed costs for the respondent. The appellant shall be responsible for 60% of the taxed costs of the respondent. To this extent the appeal succeeds. The costs of this appeal shall be borne by the appellant and the intervening party in equal shares. - J8- D. K. CHIRWA SUPREME COURT JUDGE P. CHITENGI SUPREME COURT JUDGE S. S. SILOMBA SUPREME COURT JUDGE