Zambia Union of Financial Institutions and Allied Workers (ZUFIAW) v Rodtech Limited (AppealNo.68/2008) [2011] ZMSC 39 (14 July 2011)

... ,. .... . . IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jurisdiction) LESLIE CHEMBE ZULU LL. B, AHCZ, MCIArb, S/BROKER ADVOCATE & COMMISSIONER FO~ OATHS. AppealNo.68/2008 le-44• CM#fbt Zulu (U ll Advocaw ·l Co~'400-tif fOf' Oetf11 ZAMBIA APPELLANT RODTECH LIMITED RESPONDENT For The Appellant: Mr. E. B. Mwansa, of Messrs E. B. M. Chambers. For The Respondent: Mr. G. D. Chibangula, of Messrs G. D. C. Chambers. RULING On 6 th May 2011 , this matter came before the Master of the Supreme Court, for taxation of the respondent's costs. The bill of costs was filed on 1 s t April 2011 . · The Judgment awarding the ~ respondent's costs was delivered by . the Supreme Court on 1 9th October 2010. On 8 th April 2011, the respondent filed a Notice of Intention to rruse a preliminary objection, pursuant to R. S. C. Order _33, Rule 3, [1999 Edition]. The objection was: whether the Bill of Costs filed on 1 s t April 2011, is properly before the Court, for taxation, considering that Judgment awarding costs to the -R2- respondent was delivered on 19th October 2010. The appellar also prayed for costs. On 4 th May 2011, the respondent filed a reply to tht appellant's Notice. The reply is supported by an affidavit. Tht affidavit states at paragraphs 5, 6 and 7 as follows:- "5. THAT following the delivery of judgment dated 19th October 2010 by the Supreme Court dismissing the Appellant's entire appeal with costs to the Respondent, the parties entered into protracted negotiations with a view to agreeing on ·the quantum (or amount} of costs of the dismissed appeal due and payable by the Appellant to the Respondent until the 111h January 2011 when the Appellant by a letter of even date communicated their unwillingness to negotiate further and agree upon the quantum of costs of the dismissed appeal due and payable by the Appellant to the Respondent herein. There is now produced and shown to me marked "RBS1" being a true copy of the said letter dated the 11 th January 2011 to that effect. \ \ 6. THAT meanwhile, on the 14th December, 2010 the Appellant had applied for and was granted an Exparte Order Staying Execution of the Judgment herein by the Honourable Deputy Registrar of the High Court through their Advocates Messrs. Simeza, Sangwa & Associates and following the lnterparte hearing held in Chambers on the 21 st December 2010 at 09:00 hours, the Honourable Deputy Registrar discharged the Exparte Order Staying Execution of Judgment herein by a Ruling delivered by him in Chambers and dated 28th December 2010. There is now produced and shown to me marked "RBS2" and "RBS3" being true copies of the Exparte Order Staying Execution and Ruling discharging the said Exparte Order Staying Execution respectively to that effect. -R3- 7. THAT following the discharge of the Exparte Order Stay Ing Execution of the Judgment herein by the , Honourable Deputy Registrar, the Appellant had on the 5th January 2011 applied for and was granted yet another Exparte Order Staying Execution of the Judgment herein by the Honourable Mr. Justice P. Musonda through their advocates Messrs Simeza Sangwa & Associates and I am advised by my Advocates and verily believe that commencing taxation proceeding before this Court when the Stay of Execution of the Judgment herein was then in force would have otherwise amounted to multiplicity of proceedings and abuse of the Court process herein. There is now produced a~d shown to me marked "RBS4" being a true copy of the said Exparte Order Staying Execution to that effect." Exhibits "RBS 1 ", to the affidavit is a letter of 11 th January 2011 from the appellant's Advocates. It suggests that the respondent .. proceeds with taxation of costs if it was not willing to accept K25 million as its costs. On behalf of the appellant, Mr. Mwansa argued before the Master that the Judgment awarding costs to the respondent was delivere d on 19th October 2010, while the BiU of Costs was filed on (~ 1 st April 2011. That the period of 113 · days passed between the two dates. He submitted that the law provides that a Bill of Costs for taxation must be filed within 90 days, from the date of the ·· Judgment awarding costs. That the Bill of Costs was filed after the expiry of 90 days, without leave of the Court. Therefore, it was not properly before the Taxing Master. He asked the Taxing Master to disregard the Bill of Costs until it was properly filed . He asked .for costs. -R4- In reply, on behalf of the respondent, Mr. Chibangula relied on the affidavit supporting the Notice in reply. He points out that when the activities stated in paragraphs 5-7 of the supporting affidavit were going on, it was not tenable for the appellant to file the Bill of Costs. In the alternative, he argued that Rules of procedure as regards time to take any steps in proceedings ·were merely regulatory. Their non-compliance was not fatal to a party's case. In her Ruling, the Master said that she had no jurisdiction to deal with the issues of law raised by the parties. So, she referred the matter to a single Judge, for determination. She did so under Clause 4, Part I of the second schedule to the Supreme Court Act, CAP 25 of the Laws of Zambia. So, the matter comes to me for my opinion, under that Clause 4. I have examined the record of proceedings before the Master and the arguments made before her. In the first place, I note that (~ Mr. Mwansa did not specifically cite a Rule which prescribes the 90 days time limit for commencing taxation of costs. It is Order 62, Rule 29 (1), (2), (3) and (4). It reads as follows:- r "29 (1) Subject to paragraph (2), where a party is entitled to recover taxed costs or to require any costs to be taxed by a taxing officer by virtue of: - (a) A judgment direction or order given or made in proceedings in the High Court or in the Civil Division of the Court of Appeal; or (b) Rule 5 (3), (4) or (5): or -RS- (c) An award made on an arbitration under any Act or pursuant to an arbitration agreement; or ( d) An order, award or other determination of a tribunal or other body constituted by or under any Act, He must begin proceedings for the taxation of those costs either within three. months after the judgment, direction, order, award or other determination was entered, signed or otherwise perfected or, in case~ to which sub-paragraph (b) applies, within three months after the service of the notice given to him under Order 21, Rule 2 or Order 22, Rule 3, (2) Paragraph (1) shall have effect, in relation to the taxation of costs pursuant to an order under the Solicito,:-s Act 1974, as if for the period of three months Arst mentioned in that paragraph there were substituted a reference to 14 days. (3) Where a party entitled to costs fails to begi'n proceedings for taxation within the time limit specified in paragraph (1), any other party to the proceedings which gave rise to the taxation proceedings may with the leave of the taxing officer begin taxation proceedings. (4) Where leave has been granted under paragraph (3), the party to whom it has been granted shall proceed as if he were the person entitled to begin taxation proceedings." In my view, Rule 29 must be read in conjunction with Order 62 Rule 28 (4). The latter deals with the powers of the Taxing Officer in relation to misconduct, neglect, delay, etc, in relation to taxation of costs. It reads as follows:- "Order 62 Rule 28 (4) Where a party entitled to costs - (a) Fails without good reason to commence or conduct proceedings for the taxation of those costs in accordance with this Order or any direction, or (b) Delays lodging a bill of costs for taxation, the taxing officer may:- {i) Disallow all or part of the costs of taxation that he would otherwise have awarded that party; and {ii) After taking into account all the circumstances ( inc(uding any prejudices sulrered by any other party a,s a result of such failure or delay, as the case may be, and any additional interest payable under -R6- Section 17 of the Judgments Act 1838 h~cause of the failure or delay) allow the party so entitled less than the amount he would otherwise have allowed on taxation of the bill .or wholly disallow the costs." The penalty for failure to comply with Rules 28 (4) and 29 is ''fining" the successful party, by disallowing costs, where the delay in lodging the bills of costs has been inordinate or has been shown to be prejudicial to the unsuccessful party in the action. Where there is neither inordinate/inexcusable delay, nor prejudice, it is not appropriate for the Court or Taxing Officer, to exercise punitive power to disallow costs: See paragraphs 62/29/2 and 62/28/4 and the cases cited thereunder. By contrast, in the editions of the Rules of the Supreme Court [ 1979] and before, the penalty for non compliance was forfeiture of the whole bill of t~ation, by the successful party. In the present case, the respondent filed its bill of taxation 113 days from the date of the Judgment awarding costs . I do not consider 113 days inordinate or ine;xcusable ~elay. The respondent has given two valid explanations for the delay. The ( ~ first is the protracted n egotiations over quantum._ The second is that the appellant twice applied to the High Court, for stay of execution of the Supreme Court Judgment. I agree with Mr. Chibangula that when these. a pplications were taking place, it was not feasible to file the Bill of taxation. The applications partly re-opened the matter and attracte d more --R7- costs. Such costs needed taxation. I would add that by the applications, the appellant partly caused delay in filing the bill of taxation. In effect, there is no prejudice occasioned to the appellant in relation to delayed taxation. So, the respondent should not be penalized in the taxation process. In Manharlal Patel v Surma Stationers Limited and two Others (SCZ/233/2006), Mr. Mwansa raised a similar objection against taxation of costs. Chibekunda J. S., dismissed the objection for lack of merits. : She held that the successful appellant ..... in that case was entitled to have his costs taxed without penalty and without an application for an extension of time. Having regard to the foregoing, I similarly dismiss the preliminary objection. I hold that the respondent's bill of costs is properly before the Master, as Taxing Officer. I ·order that it proceeds to taxation without penalty. I award costs to the respondent, to be taxed in default of agreement. Delivered in Lusaka Chambers, this 14th day of July 2011 M. ~ vu=-I/JI--A ~N --D-nwvv· M B WA SUPREME COURT JUDGE