Pawsen Munamooya and 12 Ors v Professor King Nalubamba and Ors (2019/HP/1633) [2024] ZMHC 155 (1 September 2024)

IN THE HIGH COURT FOR ZAMBIA AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: 2019/HP/1633 .ikepU BL1C op P RINCIPAL I El? 2024 REGISTRY 3 50067, LUSIMQ\ 4.z PAWSEN MUNAMOOYA & 12 OTHERS (AS PER SCHEDULE ATTACHED) PLAINTIFF AND PROFESSOR KING NALUBAMBA JOSEPH MWANAMBULO MUKAMADEDE MUNAMOOYA BEFORE HON. JUSTICE E. P. MWIKISA 1ST DEFENDANT 2ND DEFENDANT 3RD DEFENDANT FOR THE PLAINTIFFS: MR. N. C. DINDI OF MESSRS DINDI & COMPANY FOR THE DEFENDANTS: MR. M. SIAME OF MESSRS KMG CHISANGA ADVOCATES RULING Cases Referred To: 1. Zambia Revenue Authority v Post Newspapers Limited SCZ Judgment No. 18 of 2016 Legislation Referred To: 1. Legal Practitioners (Costs) Order Statutory Instrument No. 6 of R1 Other Works Referred To: 1. Hon. Justice Dr Patrick Matibini, Zambian Civil Procedure Commentary and Cases, Volume 1 This is the Plaintiffs' application for an order to stay execution of the Court's ruling dated the 19th of July, 2023, made pursuant to Order 58 Rule 4 of the Rules of the Supreme Court of England,1999, edition, White Book, which provides that except so far as the Court may otherwise direct, an appeal under this rule shall not operate as a stay of the proceedings in which the appeal is brought. The plaintiff seeks the following relief: (i) That the execution of the court's ruling dated the 19th July, 2023, be and is hereby stayed pending the hearing of the plaintiffs' appeal to a judge in chambers against the said appeal on the grounds contained in the affidavit in support herein and that the costs of this application be in the cause. The application is dated 9th August, 2023, and is supported by an affidavit of even date deposed to by Pawsen Munamooya, the plaintiff herein. It was deposed therein that on 19th July, 2023, the Honourable Registrar delivered a ruling stating that a practitioner of 15 years of standing and experience can charge a client for costs R2 under part III of Statutory Instrument No. 6 of 2017, by applying the fee units prescribed in paragraph 3 of the said Statutory Instrument. That the said part III is however only applicable to practitioners of 10 years but no more than 15 years standing and experience. The Plaintiff deposed that he was dissatisfied with the said ruling and filed this application for an order of stay of execution of the ruling of the Honourable Registrar pending the hearing of this appeal. On the other hand, the defendants filed an affidavit in opposition dated 16th November, 2023, deposed to by one Muchinga Siame, Counsel seized with conduct of this matter. It was deposed therein that the Honourable Registrar of the High Court delivered a ruling wherein she decided that a practitioner of more than 15 years standing at the bar can claim for their costs under part 3 of the 2017, costs order. That this Honourable Court will note that a perusal of the said ruling adumbrates that there is no specific relief or remedy worth staying and that in the premises, a judgment, ruling or order without a corresponding remedy cannot be enforced by court process or stayed. That the said ruling has no clear and enforceable remedy making the application by the Plaintiff conceptually flawed. Further R3 that the absence of a remedy in the ruling implies that the court did not intend for any immediate action to be taken and granting such an order would be prejudicial to the defendants. It was deposed that this is a proper case in which this Court should dismiss the defendants' application as the said application is wrong in principle as there is nothing to stay. When the matter came up for hearing on 13th February, 2024, Counsel for the plaintiffs, Mr Dindi, stated that the matter was coming up for the plaintiffs' application to stay the Honourable Registrar's ruling dated 19th July, 2023. Counsel relied on the affidavit in support filed on 9th August, 2023, and skeleton arguments filed on 14th November, 2023. Counsel for the defendants, on the other hand, relied on the affidavit in opposition with skeleton arguments dated 16th November, 2023. I have taken note of the skeleton arguments on the record. I have carefully considered the affidavit evidence as well as the skeleton arguments on the record. In the skeleton arguments in support of the application dated 9th August, 2023, Counsel for the Plaintiff submitted that on 19th July, 2023, the Honourable Registrar R4 delivered a Ruling to the effect that Counsel of 28 years standing [and] experience could apply paragraph No. 3 of Part III of Statutory Instrument No. 6 of 2017 for purposes of charging a client for costs which decision led to this appeal. It was submitted that unless the Plaintiff obtains an order staying the execution of the said Ruling the Registrar could proceed to issue a notice of hearing for the taxation of the bill of costs while this appeal is pending. Counsel for the defendants, on the other hand, filed skeleton arguments in opposition dated 16th November, 2023. It was Counsel's contention that the Plaintiff's application is conceptually flawed. Counsel relied on the case of Zambia Revenue Authority v Post Newspapers Limited SCZ Judgment No. 18 of 20161, and stated that the Supreme Court in that case held inter alia that only a judgment or ruling which awards a remedy and which can be enforced by Court process can be stayed. Counsel urged this Court to consider the fact that the absence of a remedy that can be enforced in the ruling in contention renders this application improper because it did not award anything. That stay orders are typically issued to suspend the enforcement or execution of a judgment or ruling that R5 provides a specific remedy and can be enforced through court process. Counsel submitted that if there is nothing to execute or enforce, there is no need to grant a stay. Upon perusal of the Honourable Registrar's Ruling dated 19th July, 2023, I am of the considered view that the Ruling of the Honourable Registrar does not warrant any reason to order a stay of execution of the ruling, as the Plaintiff has put it in its application. I say so because it is clear that the actual taxation did not take off in this matter. A perusal of the ruling in contention shows that when the application for the taxation of the defendant's bill of costs first came up, the Plaintiff's Counsel objected to proceeding on grounds that the bill was incomplete and that Statutory Instrument No. 6 of 2017 in Part III did not allow Counsel of more than 15 years standing at the bar to claim for costs. The Honourable Registrar had this to say on the matter in relation to this appeal at page R6: "Counsel that attended to this matter is of 28 years standing at the bar and it has been argued that there is no law that entitles him to costs under part three of the Statutory Instrument. It is a fact that the Defendant incurred costs in defending this matter. There is no dispute that the Defendant was awarded costs. It would therefore not be in the interest of justice to disqualify counsel from claiming his costs duly awarded by the court on ground that there is no provision for R6 Counsel to claim costs under part HI of the Statutory Instrument." The Honourable Registrar went on to state at page R7 that: "In my view, counsel of 28 years standing at the bar should claim reasonable costs and in this case he cannot be completely excluded but can claim costs under part III as done by the Defendant.... The court should therefore be concerned as to whether the costs claimed by the Defendant were reasonably incurred, reasonable in amount and proportionate. It is therefore my holding that in the interest of justice, Counsel of 28 years standing at the bar should be able to claim his costs on a scale as near as possible to the provisions under part III." A scrutiny of the Legal Practitioners (Costs) Order Statutory Instrument No. 6 of 2017, under Part III categorizes practitioners as follows: 1. A practitioner of less than five years standing; 2. A practitioner of more than five but not more than ten years standing and experience; R7 3. A practitioner of more than ten but of not more than fifteen years of standing and experience; 4. State Counsel. It is clear that there is a lacuna in part III as it does not provide for practitioners of fifteen or more years of standing and experience. I, however, cannot fault the Honourable Registrar's finding that it would not be in the interest of justice to disqualify Counsel of more than 15 years standing at the bar from claiming costs duly awarded on ground that there is no provision for Counsel to claim the said costs under part III of the Statutory Instrument. As stated in the ruling in contention, it is a fact that the Defendant incurred costs and there was no dispute as to the fact that the Defendant was awarded costs. To simply ignore the said facts on ground of a lacuna would, in my considered view, be absurd and not in the interest of justice. The Honourable Registrar relied on the learned author Hon. Justice Dr Patrick Matibini, author of Zambian Civil Procedure Commentary and Cases at page 1695 wherein it was stated inter alia that: R8 (b) the receiving party is not entitled to claim as costs more than he has actually spent or is duly bound to pay; and (c) the receiving party is only entitled to recover costs that were reasonably incurred, and that are reasonable in amount, and above all proportionate." The Honourable Registrar thus justified why Counsel of 28 years standing at the bar should be able to claim his costs on a scale as near as possible to the provisions under Part III although the said Part III has omitted that category of practitioners. The Honourable Registrar used the principles of whether the costs claimed were reasonably incurred, reasonable in amount and proportionate in arriving at her holding. Equity entails that Counsel above 15 years standing at the bar should be able to claim costs too. For the reasons stated, I find no merit in the Plaintiff's application herein and dismiss it forthwith. Leave to appeal is granted. Dated at Lusaka the I (. day of ........................ , 2024 e")) ELITA PHIRI MWIKISA JUDGE R9