Wabei Nambula Mangambwa v ZCCM Investments Holdings Plc (APPEAL NO. 176 OF 2020) [2020] ZMCA 168 (20 November 2020)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 176 OF 2020 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: / ~ ' ~L WABEI NAMBULA MANGAMBWA~ -~ AND ZCCM INVESTMENTS HOLDINGS PLC RESPONDENT CORAM: Chashi, Lengalenga and Majula, JJA ON: 12th and 20th November 2020 For the Appellant: K. N. Hang'andu, Messrs Kelvin Hang'andu and Company For the Respondent: B. Bilima, In - House Counsel JUDGMENT CHASHI JA, delivered the Judgment of the Court. Cases refer red to : 1. Donald Chilolo v Sekou Diawara Galedou - SCZ Appeal No. 212 of2014 2. Chipale v Kabwe Municipal Council - SCZ Judgment No. 9 of -J 2 - 3. ZANACO v Rosemary Bwalya - SCZ Judgment No. 25 of 2011 4. Bank of Zambia v Vortex Refrigeration Company Limited and Dock.land Construction Company Limited - SCZ Appeal No. 004 of 2013 5. Memminger - IRO GmbH v Trip - Lite Limited (No. 2) ( 1992) The Times, July 9 Rules referred to : 1. The High Court Rules, Chapter 27 of The Laws of Zambia 2. The Supre.me Court Practice (White Book) 1999 1.0 INTRODUCTION 1.1 This appeal emanates from the Ruling of Honourable Mad am Justice C. B. Maka - Phiri, High Court, delivered on 30th June 2020. 1.2 In the said Ruling, the learned Judge upheld two preliminary issues which were raised by the Respondent, who was the defendant, in the court below and quashed - J 3- and struck out for irregularity the Appellant's bill of costs in its entirety. 2.0 BACKGROUND 2.1 The Appellant who was the plaintiff in the court below commenced proceedings by way of writ of summons against the Respondent on 31 st October 2019, in the High Court at Livingstone. The Respondent on account of forum conveniens applied for an Order for transfer of t:he matter to the High Court (Industrial Relations Division) at Lusaka pursuant to Order 3/2 of The High. Court Rules (HCR). The learned Judge in her ruling dated 6 th January 2020 dismissed the application with costs to the Appellant. The Appellant then proceeded to file a b ill of taxation for costs before a taxing officer on 30th January 2020. Despite the Respondent protesting against the notice of a biJl of taxation of costs by way of raising a preliminary issue; the taxing officer instead of referring the issue to the learned Judge for determination, proceeded to tax the biU. That prompted the Respondent to bring two preliminary issues before the learned Judge pursuant to Order 14 A of - J 4 - The Rules of the Supreme Cou rt (RSC) 2 couched as follows: "Whether the taxation for the bill of costs had been brought prematurely at that stage, as the Order for costs in a ruling dated 6th January 2020 was not a forthwith Order. " 2 .2 After considering the affidavit evidence and the arguments by the parties, the provisions under Order 62/8 RSC and the Supreme Court case of Donald Cbilolo v Sekou Diawara Galedou1 , the learned Judge opined that, the Order for costs was not a forthwith Order and therefore the taxation of costs could only be proceeded with at the conclusion of the matter and not at that stage. The learned Judge upheld the preliminary issue and in doing so, quashed and struck ou t the taxed bill of costs for irregularity. 3 .0 THE APPEAL 3.1 Disenchanted with the Ruling, the Appellant has appealed to this Court advancing seven grounds of appeal couched as follows: - J 5 - (i) The learned Judge misdirected herself in law when she set aside the Assistant Registrar's Order for Taxation, and struck out the BiU of Costs filed by the Appellant's advocates, on the ground that the Respondent's jurisdictional challenge against the legality of said taxation ought to have been resolved beforehand because she had no jurisdiction to entertain that application inasmuch as any such legal challenge exclusively fell within the jurisdiction of the Assistant Registrar of the Livingstone High Court and should have been raised during the course of the taxation itself, as enjoined by the Supreme Court's decision in Chipale v Kabwe Municipal Council; (ii) The learned Judge misdirected herself in law when she set aside the Assistant Registrar's Order for Taxation, and thereupon struck out the Bill of Costs filed by the Appellant's advocates, on account of the above-mentioned ground, because -J6- said orders were irregular and thus a nuHity, pursuant to the governing principle in taxation proceedings before the High Court enshrined in Chipale v Kabwe Municipal Council, according to which "all questions relating to costs in the High Court ought to be referred to a taxing officer of that court." and can therefore not be dealt with in the manner complained of herein; (iii) The learned Judge misdirected herself in law when she set aside the Assistant Registrar's Order for Taxation, and thereupon struck out the Bill of Costs filed by the Appellant's advocates, on account of the above-mentioned ground., because Order XL Rules 2, 3(1) - 1(3L and 4 of the High Court Rules (Cap. 27 of the Laws of Zambia) expressly prescribes the mandatory statutory review of costs procedure concernrng any impugned taxed costs; and thereby plainly outlawed the honourable Judge's determination of the Respondent's said legal challenge in the -J7- manner complained of herein, or in the manner the learned Judge erroneously proceeded with the said matter; for which cause the learned Judge improperly and/ or unlawfully quashed both the aforementioned Order for Taxation of Costs and Bill of Costs; (iv) The learned Judge misdirected herself in law by holding that when the taxation of costs frell to be determined on 7 th February 2000, the Assistant Registrar "was mandated" and/or enjoined to her court for adjudication, and ought to have halted the hearing of the taxation application before him, in that no such process (i.e. "preliminary issues"), as a matter of fact, was ever filed be.fore the Assistant Registrar for the purpose of seeking any legal remedy aimed at impugning, on any ground, the Bill of costs filed by the Appellant; (v) The learned Judge misdirected herself in law when she held that the Bill of Costs filed by the Appellant's advocates in casu was void ab initio, -J 8 - and therefore liable to be quashed in toto, because there had not been any "forthwith order" directing taxation thereof prior to the conclusion of the matter; (vi) The learned Judge misdirected herself in law when she held that the Bill of Costs filed by the Appellant's advocates was void ab initio, and therefore liable to be quashed in toto, because the said Bill of Costs ought to have been denominated in fee units instead of the Kwacha; and (vii) Alternatively and without prejudice, the Respondent having (a) purposely absconded the taxation in casu, and ,(b) knowingly and/or willfully neglected to file any written opposition to the Appellant's Bill of Costs was thereby bound by the said Order for Taxation of Costs and therefore destitute of any legal ground whatsoever to impugn said costs in as much as no ex parte order ought to be quashed in the -J9- circumstances of this suit, when there is not even a "defence on the merits" to warrant setting aside such order. 4.0 ARGUMENTS IN SUPPORT OF THE APPEAL 4.1 Mr. Hang'andu, Counsel for the Appellant relied on the Appellant's heads of argument which were filed into Court on 28 th September 2020. The first and second grounds of appeal were argued together. Counsel submitted that the learned Judge in the court below, did not have jurisdiction to determine the legal challenge against the costs by the Respondent, as the matter should have been determined by the taxing master himself. 4.2 Our attention was drawn to Order 42/2 HCR, which states that: "All questions relating to the amount of costs shall, unless summarily determined by the court, be referred to a taxing officer and after notice of taxation to the parties, be ascertained by him." - J 10- We were also referred to the case of Chipale v Kabwe Municipal Council2 , where the Supreme Court construed the import of Order 40 / 2 HCR as follows: 'C... according to our law, all questions relating to costs in the High Court ought to be referred to a taxing officer of that court. the High Court Rules define a taxing officer to mean: a taxing mas ter or an assistant registrar. A taxing master under those rules is the registrar of the High Court, the deputy registrar or district registrar." 4.3 According to Counsel, the notice to raise a preliminary issue that was filed for purposes of annulling the Appellant's bill of costs, ought not to have been adjudicated upon by the learned Judge as that connoted the usurpation of the taxing officer's jurisdiction to resolve the objection and/ or legal technicality. 4. 4 In arguing the third ground of appeal, Counsel submitted that the learned Judge's Ruling evidently lacked any legal warrant whatsoever, owing to fact that - J 11- the prescribed procedure for reviewing a bill of costs makes no provision for filing a preliminary issue to a Judge in order to impugn, on any ground, the taxation of costs before a taxing officer of the High Court. the case of ZANACO v Rosemary Bwalya3 was cited, where the Supreme Court stated that: "In terms of Order 40/ 3 and 40/ 5/ 1 of the High Court Rules, a party who is dissatisfied with the decision of the taxing master, must apply to the taxing master for review and failing that review, such party must apply to a High Court Judge in Chambers for review. An appeal was not a proper mode for the respondent to employ upon being dissatisfied with the decision of the taxing master because the appropriate mode is a review.,, 4 .4 According to Counsel, the issue ans1ng from the taxation was addressed by the Judge prematurely, before the Respondent applied for review before the - J 12- taxing officer. That therefore the learned Judge improperly quashed the order for taxation. 4.5 In arguing the fourth ground of appeal, it was submitted that the ruling by the learned Judge that: "when the taxation of costs came up on 7th February 2020, the taxing master was mandated to refer the preliminary issue to the court for determination and halt the hearing of the application before him.'' was wholly untenab]e, as the view is not supported by any authority. 4.6 In arguing the fifth ground of appeal, that this ground as well as grounds three to seven are all alternative grounds. It was submitted that if the appeal is allowed on the first and second grounds, the rest of the grounds will be wholly inconsequential. It was, however submitted that, the argument that there was no "forthwith order" was not tenable as the Order for taxation of bill of costs was stiH valid without it. According to Counsel, costs are perfectly recoverable -J 13 - without a forthwith order. The case of Donald Chilolo 1 was relied on. 4.7 It was further submitted that Order 62/8 (9) RSC clearly states that: "Where it appears to a taxing master on application that there is no likelihood of any further order being made in a cause or matter, he may tax forthwith the costs of any interlocutory proceedings which have taken place." That based on the aforestated, the impugn ed taxation was duly undertaken, even though there was no forthwith Order for their taxation. 4.8 In arguing the sixth ground of appeal, it was contended that the court below annulled the bill costs as it was not expressed in fee units as provided under Statutory Instrumen t No. 6 of 2017. It was argued that, although the bill of costs was denominated in Kwacha, it was equivalent to the fee units and Counsel was entitled to the conversion. That, in that respect the principle was not offended at all by the Appellant. - J 14- 4. 9 As regards the seventh ground of appea], it was contended that the Respondent did not file any objection to the bill of taxation and that automatically barred them from challenging the bill of taxation as no procedural injustice was occasioned to them as they were aware of the taxation proceedings. 5.0 ARGUMENTS IN OPPOSING THE APPEAL 5.1 Mr. Bilima, Counsel for the Respondent relied on the Respondents heads of argument filed into Court on 12th Nove.mber 2020. In response to the first and second grounds of appeal, it was contended that there was a preliminary issue raised, which is on the court''s record in the court below, challenging the regularity of the bill of costs. 5.2 It was submitted by Counsel that in this jurisdiction, the assistant registrar does not have jurisdiction to determine a preliminary issue raised by any of the parties chaHenging the validity of taxation proceedings. That the Appellant has therefore cited Order 40 / 6 HCR out of context. - J 15 - According to Counsel, the preliminary issues raised were not in any way challenging the amount of costs awarded but the regularity of the bill of costs. 5.3 It was further submitted that the learned Judge cannot be faulted. That the Ruling is in tandem with the practice in the jurisdiction. Counsel argued that the Chipale case is distinguishable from this case. The court was addressing the propriety of the master of the Supreme Court being the taxing master or officer for purposes of taxation of costs incurred in the High Court, which was not the issue in casu. 5.4 Counsel submitted that, the argument therefore by the Appellant that the learned Judge usurped the jurisdiction of the taxing master to resolve the preliminary issue is therefore untenable. Further the argument that the learned Judge could only deal with the matter after the taxing officer had dealt with it is also untenable . That the preliminary issue raised was not a challenge on the sums of the costs but the regularity of the bill of costs. That the -J16- jurisdiction therefore lies with the Judge to determine the issues raised. 5.5 Counsel submitted that the issue of jurisdiction was not raised in the court below. Further that the arguments in respect to jurisdiction are without merit and should be dismissed. According to Counsel, the appellant has misapprehended the provisions of Order 40 HCR as well as the Chipale case. 5.6 In response to the alternative grounds, in arguing the third ground, Counsel submitted that the review envisaged under Order 40 HCR is totally different from the action which was undertaken by the learned Judge. That the trial court was not concerned with the taxed amount but rather the propriety of taxing a bill which had been challenged. 5. 7 Counsel submitted that, the argument by the Appellant that Order 40 HCR does not provide for any procedure to raise a preliminary issue to impugn on any ground, the taxation of costs before a Taxing Master, our attention was drawn to the Supreme Court case of Bank of Zambia v Vortex Refrigeration Company Limited and Anot her4 . The facts - J17- in that case where that the Respondent was the successful party in an action that was determined by the Supreme Court .. . The parties failure to reach an agreement prompted the Respondent to take out a notice of taxation together with a bill of costs, before the master of the Supreme Court returnable before the master of the Supreme Court. Enlivened by perceptible irregularities in regard to the bill of costs filed with the notice, the appellant promptly filed a notice to raise a preliminary issue pursuant to Order 3.3 / 3 and Order 14 A RSC . Malila, JS in the matter had this to say: "On the scheduled day for taxation before the master of the Supreme Court the parties rightly agreed thrat the preliminary issues raised by the appellant should first be determined by a single Judge of the Supreme Court. As the Taxing Master could not proceed with the taxation until the preliminary issue had been determined, the matter was ref erred to me, .sitting as a single Judge." 5.8 It was submitted that, the aforestated case elaborates the - J 18 - practice and procedure in our jurisdiction, as the Taxing Officer has no jurisdiction to determine a preliminary issue. Counsel further submitted that the same Bank of Zambia case decisively dealt with the issue of expressing of fees in kwacha instead of fee notes. 5.9 In response to the fourth ground, counsel submitted that the learned Judge was on firm ground, when she held that the Assistant Registrar should have halted proceedings and refer the matter to her for determination, as the Taxing Officer has no jurisdiction to determine a preliminary issue. 5.10 In response to the fifth ground of appeal, counsel submitted that the learned Judge cannot be faulted for taking the view that the court must expressly order that taxation be forthwith and where there is no such order, the taxation will be at the conclusion of the proceedings. That in fact that was what the Supreme Court restated in the Donald Chilolo case. That in casu the order for costs was not a forthwith order. The taxation of costs could therefore only - J 19- be proceeded with at the conclusion of the matter and not at that state. 5.11 It was Counsel's submission that the learned Judge was on firm ground when she relied on Order 62 / 8 (2) RSC in arriving at its decision. 5.12 It was submitted that the learned Judge was correct in annulling the bill of costs because it offended the very statutory instrument pursuant to which it was brought before the court. That the issue of denoting of fees has received judicial attention and has been settled by the Supreme Court in the Bank of Zambia case. 5 . 13 In response to the seventh ground of appeal, it was submitted that after raising the preliminary issue and establishing that the Trucing Officer had no jurisdiction to determine the issues raised, it was not prudent for counsel for the respondent to present himself before the trucing officer. That as correctly observed by the learned Judge, the trucing officer when the matter came up was mandated to refer the preliminary issue to the learned Judge for determination and halt the hearing of trucation. 1t was - J 20 - therefore a waste of time for the taxing officer to proceed with the taxation of costs on a bill that was being challenged. 6.0 CONSIDERATION AND DECISION OF THE COURT 6.1 We have considered the appeal, the arguments by the parties and the Ruling being impugned. In determining this appeal, we shall address the first, second, third and fourth ground of appeal together as they are entwined. Consideration of the fifth, sixth and seventh grounds of appeal, which have been argued in the alternative will be dependant on the outcome of the determination of the earlier grounds. We have plucked out the third and fourth grounds from the alternative arguments and considered them together with the first and second grounds as they form the genesis of the matters which gave rise to the preliminary issues before the learned Judge. 6.2 Our first port of call is the Order for costs which was given by the learned Judge in her ruling of 6 th January 2020. In awarding costs to the Appellant, this is what the learned - J 21- Judge stated in the Order at page 88 of the record of appeal (the record) that: "It is ORDERED and DIRECTED that the said application by the defendant be and is hereby dismissed with costs to the plaintiff" 6.3 Order 62/8 RSC which the learned Judge relied on in upholding the preliminary issues, which were raised by the Appellant, provides for the stage of proceedings at which costs should be taxed. It stated as follows: "8-{l) Subject to paragraph (2), the costs of any proceedings shall not be taxed until the conclusion of the cause or matter in which the proceedings anse. (2) If it appears to the court when making an Order for costs that all or any part of the costs ought to be taxed at an earlier stage, it may, except in a case to which paragraph (3) applies, Order accordingly." - J 22- 6.4 Order 62/8/ 1, on the effect of the rule states 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 forthwith". 6.5 Order 62/8 RSC was subject of interpretation by the Supreme Court in the Donald Chilolo case. The court in that case alluded to the fact that a court can order costs to be taxed even before the whole matter is concluded by delivery of Judgment. However, there has to be a forthwith Order for costs to be taxed in tandem with Order 62/8/ 1 R SC. 6.6 It is evident that, there was no forthwith Order by the learned Judge when she granted costs to the Appellant and therefore there was no basis for the Appellant to proceed to file a Notice of taxation and taxation of a bill of costs. • -J 23- 6. 7 In the case of Memminger - IRO GmbH v Trip - Lite Limited (No. 2) 5 • It was held that, the court associate has no power to give effect to what he might believe to have been the Judges manifest but unexpressed intention, by inserting words into an order of the court, i.e. it is necessary for the Judge to m ake a forthwith order at the time of giving an order or Judgement. 6.8 Before we leave the provisions of Order 62, Counsel for the Appellant during the hearing of the appeal asked for our understanding of Order 62 / 8 (9) RSC which states as follows: "(9) where it appears to a taxing master on an application that there is no likelihood of any further order being made in a cause or matter, he may tax forthwith costs of any interlocutory proceedings which have taken place." Our understanding of subrule (9) is that, interlocutory proceedings must have taken place after the bill of costs for taxation was already before the taxing - J 24- master. There must then be an application before the taxing master for taxation of the costs incurred in the interlocutory applications. To grant the application, the taxing master must be satisfied that there is no likelihood of any further order being made in the cause or matter. It is however our view that the subrule was not applicable to this matter. 6. 9 The Appellant has alleged that there is no prov1s1on for raising of preliminary issues under Order 62 RSC. It is trite law that preliminary issues can be raised at any time to determine an issue of law at any stage of the proceedings. Taxation of a bill proceedings are not exempted. The fact that preliminary issues can be raised in taxation proceedings were given effect by the Supreme Court in the Bank of Zambia case which was cited by the Respondent in their arguments. 6.10 The same case gave efficacy to the halting of taxation when a prelimin ary issue has been raised and referring the determination of the issue to a Judge in chambers. Preliminary issues under Order 14A, 33/3 t - J 25 - and 18 RSC require determination of issues on points of law. Therefore, when an issue anses before the taxing officer which requires determination of issues on points of law or determination of the law, the taxing master must halt the taxation and refer the matter to a Judge for determination. The taxing officer under Order 62, has no powers to determine such issues. The power lies with the Judge. 6 . 11 The aforestated addresses the issue of jurisdiction raised in the first ground of appeal and equally the issue raised under the second ground of appeal. In a nutshell, the learned Judge had the power to determine the preliminary issues. She equally in her determination had the power to strike out the bill of costs as was done by the Supreme Court in the Bank of Zambia case aforestated. 6.12 In the view we have taken, the first, second, third and fourth grounds of appeal have no merit and are accordingly dismissed. - J 26- Consequently, the fifth, sixth and seventh ground.s of appeal which were being argued in the alternative fa11 away and become otiose, having determined that the learned Judge had jurisdiction. 7.0 CONCLUSION 7 .1 All the seven grounds of appeal having been unsuccessful; they are accordingly dismissed for lack of merit. Costs to the Respondent, Same to be taxed forthwith in default of agre ej, F . M. LENGALENGA COURT OF APPEAL JUDGE =B. M AJULA COURT OF APPEAL JUDGE