Shula Kakusa v Mulenga Kachelo and Anor (CAZ/08/438/2020) [2022] ZMCA 149 (19 August 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (CIVIL JURISDICTION) CAZ/08/438/2020 IN THE MATTER OF: SECTION 3, 4(1)((a), 5(1) AND 10 OF THE LANDLORD AND TENANT (BUSINESS PREMISES) ACT, CHAPTER 193 OF THE LAWS OF ZAMBIA BETWEEN: SHULA KAKUSA APPLICANT 1 ST RESPONDENT KAKOONS PUB & GRILL LIMITED 2ND RESPONDENT Coram: Hon. Lady Justice N . A Sharpe-Phiri in Chambers on 19th August 2022 For the Appellant: For the Respondent: Mrs. I. Suba of Suba Tafeni & Associates In person RULING Legislation referred to: 1. The Court of Appeal Rules, Act No. 7 of 2016 2. The Supreme Court Practice (White Book) 1999 Edition. This is a ruling on the application brought by the respondents by way of ex-parte summons on 29th June 2022 for leave to refer Bill of Costs to taxation outside the stipulated time on a party-to-party basis. Rl The summons was supported by affidavit sworn by Zondwa Ndhlovu, an Assistant Accountant in the firm of Suba, Tafeni & Associates, the advocates seized with conduct of the matter on behalf of the respondents in this matter. The application was also supported by submissions and list of authorities filed on even date. In the affidavit supporting the application, the deponent contended that this Court had on 14th January 2022 dismissed the appellant's appeal for want of prosecution with costs to the respondents. That following the ruling, they duly served the appellant with a letter of demand on 2 nd February 2022 for the costs incurred in the matter amounting to K106,850. That despite the lapse of the 30 days period given to appellant in which to pay the said costs, the appellant has not paid or committed to settling the costs awarded to the respondent. That the respondents are desirous of receiving the costs incurred in these proceedings and seek leave to file an application for leave to refer the Bill of Costs to Taxation outside the stipulated time. In their submissions, the respondents rely on Order 3 Rule 5(1) of the Rules of the Supreme Court of England (White Book) 1999 Edition which provides that 'the Court may, on such terms as it thinks just, order extend or abridge the period within which a person is required or authorized by these rules, or by any judgment, order or direction, to do any act in any proceedings. ' R2 The respondents further relied on the provisions of Order 62 Rule 21 of the White Book which provides that: '( 1) A taxing officer may - (a) extend the period with which a party is required by or under this Order or by the Court to begin proceedings for taxation or to do any thing in or in connection with those proceedings on such terms (if any) as he thinks just; or (b) where no period is specified by or under this Order or by the Court for the doing of anything in or in connection with such proceedings, specify the period within which the thing is to be done. (2) A taxing officer may extend any such period as if referred to in paragraph (1) of this rule although the application for extension is not made until after the expiration of that period.' The respondents argued that the Court has inherent power to authorize the filing of the bill of taxation outside the stipulated time and prayed that the Court exercise its discretion in favour of the respondents accordingly. R3 The summons was endorsed inter-parte and scheduled for hearing on 19t h July 2022. On the said date, the appellant attended in person, but the respondents counsel was absent. The appellant sought an adjournment of the matter to enable him engage counsel and oppose the application. The matter was adjourned to 9 th August 2022. On the said date, the appellant and the respondent's counsel, Mrs. I. Suba were in attendance. The appellant requested for another adjournment to give him more time to respond to the application. The Court declined the application on the basis that the appellant had had sufficient time to file an affidavit in opposition but had not done so. The Court directed the respondents ' counsel to proceed with the application. Counsel Suba submitted that the application was brought under Orders 13 Rule 3 of the Court of Appeal Rules. She relied on the affidavit, submissions and list of authorities and prayed that leave be granted for the taxing master to tax the said costs. In response, the appellant lamented that the respondents were proceeding to taxation when they had agreed to settle the issue out of Court. I have carefully considered the evidence and arguments of the parties before me. R4 The application has been brought pursuant to Order XII Rule 2 of the Court of Appeal Rules which provides that: '(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.' The aforesaid rules of the Court of Appeal clearly empower a party to refer any question relating to costs to a taxing master. The respondent has brought an application for leave to refer the bill of costs to taxation outside the stipulated time. By the said application they seek an extension of time within which to file a bill of costs for taxation before the taxing master. The respondents are harbouring under a belief that they are out of time to file and have their bill of costs taxed before the Taxing Master, hence this application seeking leave of this Court to refer said bill to taxation outside the stipulated time. In this regard, the Respondents have referred to Order 3 Rule 5( 1) and Order 62 Rule 21 of the White Book, 1999 Edition. The said provisions allow extension of time applications. RS I do not subscribe to the notion that provisions relating to practice and procedure in the White Book should be used as an alternative in place of the Rules of Court where the Rules of this Court provide clear guidelines on procedure regarding a specific issue or question in contention. A perusal of Order XII Rule 2 of the Court of Appeal Rules sets clear guidelines on how the respondent, being desirous of having the question of costs heard before a Taxing Master, could have proceeded to have the question of taxation brought before the Court upon failure to engage in constructive dialogue with the appellant. There is in my considered opinion no time frame set to have the Bill of Costs filed for taxation. For the said reason, I find that the application to obtain leave of this Court to refer bill of costs to taxation outside the stipulated time is ill conceived and unnecessary. The application is improperly before me, and I dismiss it accordingly. I make no order as to costs since the appellant did not defend the action. Dated at Lusaka this 19th August 2022. ~~ ! : :a - - - - ) )~ - -h h 0 J N . A. s arpe-P lrl ::;RT OF APPEAL JUDGE R6