Job Mabuti v Dr. Henry Mbushi, S.C (T/A HBM Advocates) (2023/HP/1251) (15 November 2024) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA 2023/HP/1251 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (Civil Jurisdiction) BETWEEN: JOB MABUTI PLAINTIFF AND DR HENRY MBUSHI, S.C DEFENDANT (T/A HBM Advocates) Before Honourable Mr. Justice C. Kafunda in Chambers on the 15th day of November, 2024 For the Plaintiff' Ms. J.L. Sipalo of Mosha and Company Legal Practitioners For the Defendant: Mr Makenda of HBM Advocates JUDGMENT CASES REFERRED TO; 1. Kuta Chambers (Sued as a firm) v Simbulo (Suing as Administratrix of the Estate of the late Francis Simbulo) Appeal 122 of 2012 [2015} ZMSC 75 2. CMM Property Consultants Limited v Ventus Legal Practitioners (Appeal No 221 of 2022) [2023] ZMCA 185 3. Chazhya Silwamba v Lamba Simpito [2010] Volume 1. ZR 475 4. Dockland Construction Limited v Maureen Mwanawasa (Sued in her capacity as trustee and Chairperson of the Maureen Mwanawasa Community Initiative) Appeal No 036/2018 Unreported 5. Motherland Enterprises Limited v Trampet Security Systems Limited 2019/HP/1829. 6. Mwendelema v Zambia Railways Board (1978) ZR 65 7. Dr Kenneth Kaunda & United National Independence Party v Central Chambers & 5 Others SCZ (Appeal no 237/2013) [2020] ZMSC 83 8. Himani Alloys Limited v Tata Steel Limited8 2011 (3) Civil Court Cases 721. LEGISLATION REFERRED TO; 1. High Court Act Chapter 27 of the Laws of Zambia 2. Rules of the Supreme Court of England (Whitebook) 1999 Edition This is a Judgment 1n respect of the Plaintiff's application for determination of the matter on point of law and for Judgment. The application is made pursuant to Order 14A of the Rules of the Supreme Court of England 1965 (Whitebook) 1999 Edition ("RSC") which provides as follows; 1) The court may upon the application of a party or its own motion determine the any question of law or construction of any document arising in any cause or matter at any stage of the proceedings where it appears to the court thata) Such question is suitable for determination without full trial. b) Such determination will finally determine (subject only to any possible appeal), the entire cause or matter or any claim or issue therein. 2) Upon such determination the court may dismiss the cause or matter or make such order or judgment as it thinks fit. 3) The Court shall not determine any question under this order unless the parties have either2 ; I a) Had an opportunity of being heard on the question, or b) Consented to an order or judgment on such determination.,, The questions set out by the Plaintiff in the summons for the Court's determination are as fallows; 1. That the following question of law be determined, namely, whether the Defendant as a Legal Practitioner is entitled to exercise a lien over client's money and apportion it to legal fees allegedly unpaid by the Plaintiff 2. If the question is answered in the negative, Judgment be entered for the Plaintiff as pleaded in the statement of claim together with costs AND if the question is answered in the affirmative, the action against the Defendant be dismissed and the Plaintiff pays the Defendant costs for this action. The Plaintiff filed an affidavit in support of the application on 14th May, 2024. It was deposed that the Defendant, in his defence, admits receiving the sum of ZMW2,300,000.00, comprised of the sum of ZMW2,000,000.00, being damages paid to the Plaintiff and the other sum of ZMW300,000.00, being legal fees paid to the Defendant, arising out of a consent judgment under Cause No. 2015/HB/231, a matter between the Plaintiff and the Attorney General. The Defendant was the Plaintiff's legal counsel in the said matter. It was deposed that the Defendant, in withholding the sum of ZMW2, 000,000.00 paid to him as counsel, in favour of the Plaintiff who was his client, asserts the right of lien over the money received. This is on the basis that the Plaintiff has failed, refused and/ or neglected to settle outstanding legal fees and/ or costs due the Defendant as counsel. The Defendant filed an affidavit in opposition on 28th May, 2024, wherein he went at length to demonstrate that he acted for the Plaintiff under various causes, both civil and criminal, at the instruction of the United Party for National Development ("UPND") Secretariate. That the matters in which he represented the Plaintiff were of a political nature and hence instructions to represent clients such as the Plaintiff did not come from the client but from the UPND Secritariate. He appears to advance the point there was an understanding that monies paid to such clients as compensation would also go to settle outstanding legal fees arising out of representation in such political matters. In the Plaintiff's skeleton arguments in support of the application, filed on 14th May, 2024, the Plaintiff submitted that the application is premised on Order 14 A of the RSC. It was submitted that the Defendant's conduct as counsel towards the Plaintiff raises the question of whether a Legal Practitioner is : t ,.. entitled to retain or deduct money from a judgment sum recovered on behalf of a client. The Court was referred to the cases of Kuta Chambers (Sued as a firm) v Simbulo (Suing as Administratrix of the Estate of the late Francis Simbulo)1 and CMM Property Consultants Limited v Ventus Legal Practitioners2 on the position that a Legal Practitioner cannot legally deduct or withhold client's money to cover outstanding legal fees. It was submitted that the recourse available for Legal Practitioners who recover a judgment sum on behalf of a client and whose legal fees are unpaid, is to commence an action, a month after delivering to the client a bill of legal fees due as provided for under Order L Rule 2 of the High Court Rules, High Court Act Chapter 27 of the Laws of Zambia ("HCR") which provides as follows; "No practitioner shall commence any suit for the recovery of any fees for any business done by him until the expiration of one month after he shall have delivered to the party to be charged therewith or sent by registered letter to or left for him at his office, place of business, dwelling house or last known place of abode a bill of suchfees, such bill by either being signed by such practitioner (or, in case of a partnership, by any of the partners, either in his own name or in the name of the partnership) or being enclosed in or accompanied by a letter signed in the like manner referring to such bill." The Court was further referred to Section 38(2) of Legal Practitioner's Act, Chapter 30 of the Laws of Zambia which is conched similar in similar terms to the above referred to provision in the HCR. It provides as follows; "(2) subject to the provisions of this Act, no action shall be brought to recover any costs due to a practitioner until one month after a bill thereof has been delivered in accordance with the requirements of any rules of Court: ... " It was submitted that that Defendant does not dispute receiving the money recovered under the consent judgment but asserts that it was legally justifiable for him to withhold the recovered sums in order for him to recover legal fees allegedly owed to him by the Plaintiff. The Court was thus emplored to determine whether it is legally tenable for a Legal Practitioner to withhold client's money so as to recover legal fees. The Defendant filed skeleton arguments in opposition to the Plaintiff's application wherein it was submitted that the Defendant disputes the admission attributed to him. That, the Plaintiff had no ,.. hand in the award of the sum ZMW 2,000,000.00 as instructions to commence matters in respect of members of the UPND, in both civil and criminal matters, were through the UPND Secretariate. The Defendant essentially argued that the compensation paid to the Plaintiff and other clients in similar circumstances was intended to be used to offset legal fees owing especially in criminal cases in which the Defendant also represented the Plaintiff. The Defendant submitted that the cases of Kuta Chambers and CMM Property Consultants Limited supra, relied upon by the Plaintiff, had no connection or relevance to the case in casu. It was submitted that the authorities relied upon by the Plaintiff refer to the Legal Practitioners Act which governs costs in civil matters. That the issue before the Court concerns costs in criminal matters, in respect of which there were no instructions from the Plaintiff but from the UPND Secretariate. The matter came up for hearing of the Plaintiff's application on 18th June, 2024. Learned counsel relied on the affidavit in support and skeleton arguments of 14th May, 2024. Leaned Counsel for the Defendant relied on the affidavit in opposition and skeleton arguments of 28th May, 2024. It was submitted that the issue raised by the Plaintiff for determination on a point of law, is a contentions issue that can only be determined through trial. Reliance for the proposition was placed on the case of Mwendelema v Zambia Railways Board6 In reply, it was submitted that the full determination of the question before Court will save all parties time and resources and will allow the Court to channel the time and resources to other matters. I have considered the affidavit evidence, skeleton arguments as well as the verbal submissions made on behalf of the parties. The Plaintiff anchors his application on Order 14A of the RSC setting out a question for the Court's determination but which question the Defendant contends is a triable issue and therefore must be determined at trial. Order 14A of the RSC is intended to address questions of law or construction of any documents arising in a matter, whose determination, has the effect of finally determining the entire cause without having recourse to a full trial. In response to the Plaintiff's claim for the payment of the sum ZMW 2,000,000.00, being money paid as damages for false imprisonment to the Plaintiff, through the Defendant as counsel, the Defendant admitted to receiving the money in issue. The Defendant, however, asserts a legal justification to exercise a lien over the money, on the premise that the Plaintiff owed him legal fees. As a consequence of the Defendant's position above, the Plaintiff has posed a question to the Court, whether or not, a Legal Practitioner can exercise a lien over client's money. The Defendant having admitted receiving the money which forms the claim in the suit, it is my view that the only issue remaining for the determination of the Court revolves around the question posed by the Plaintiff. Thus, I am inclined to agree with the Plaintiff that, if the question posed to the Court is answered in the negative, the answer will fully dispose off the matter before the Court. A wealth of authorities, including the cases of Kuta Chambers supra and CMM Property Consultants Limited v Ventus Legal Practitioners supra, hold to the effect that a Legal Practitioner cannot legally deduct, withhold or exercise a lien over clients' money. I thus do not need to belabor the point that there is no legal justification available to the Defendant for him to exercise a right of lien over the funds he received on behalf of the Plaintiff who was his client. The law is very clear on the procedure that counsel ought to ~-- follow in order to recover legal fees that are owing from a client. The Defendant ought to have prepared and saved a bill of fees owing upon the Plaintiff. If, upon the expiry of 30 days of the delivery of the bill, the bill is unpaid, the Defendant would have been entitled to commence legal proceedings for the recovery of legal fees as outlined under Order L Rule 2 of the High Court Rule, HCR and Section 83(2) of the Legal Practitioner's Act, Chapter 30 of the Laws of Zambia. The Supreme Court in construing the provisions of Order L Rule 2 of the HCR, in the case of Dr Kenneth Kaunda & United National Independence Party v Central Chambers & 5 Others7 observed as follows; "The effect of the foregoing order is that before a legal practitioner can claim for legal fees he needs to render a bill to his client. Such a bill will explain the work done, the basis of the billing and the amount to be paid as remuneration for legal services rendered. The facts of this case and the documents on record of appeal do not reveal that a bill as envisaged by Order 50 Rule 2, was rendered and delivered to the appellants." The Defendant in his affidavit in opposition deposed that he issued 3 fee notes to the Plaintiff which he produced in his affidavit as "HM6", "HM7" and "MH8". The foregoing notwithstanding, it still remains the case that the Defendant did not commence legal proceedings to recover outstanding legal fees in respect of the fee notes which he claims he issued. Even if it was the case that the Defendant had commenced legal proceedings in respect of the fee notes he issued, that by itself would not have entitled him to recover from the Plaintiff in the manner he did. The recovery of outstanding legal fees follows a judgment or order in the favour of a legal practitioner, who, after commencing legal proceedings, would have proven to the Court that he/ she is indeed owed legal fees subject of the issued fee note. The mechanics of the actual recovery (execution) are also directed by the Court pursuant to the relevant rules of Court. Counsel cannot simply dip his hands into the clients' account and haul out money received on behalf of a client just because counsel has issued fee notes or because he has a judgment in his favour in respect of outstanding legal fees. The letter of the law on enforcement of judgments must be followed with respect to judgments for recovery of outstanding legal fees. The foregoing applies to outstanding legal fees be it civil or criminal. Thus, the growing tendency by Legal Practitioners to withhold clients' money under the guise of exercising a lien is wrong as it has no backing of the law and has been frowned upon by the Courts of law on various occassions. Counsel is urged to follow the laid down procedure for recovery of legal fees. In light of the above, I answer the legal question posed by the Plaintiff in the negative, precisely that the Defendant, as a Legal Practitioner, had no legal authority to exercise the right of lien over the sum of ZMW 2,000,000.00 he received on behalf of the Plaintiff who was his client. The foregoing legal finding disposes off the entire matter because it knocks out the only limb on ·which the Defendant's defence was premised. Having settled the legal question as in the foregoing, I hold that there is no need to hold a full trial in this matter because the central question of the anticipated trial has been resolved. Having found as I have and pursuant to Order 14A Rule 1(2), I enter judgment against the Defendant and direct as follows; that the money held by the Defendant amounting to 1. K2,000,000.00 be paid to the Plaintiff forthwith. The Plaintiff is awarded damages for breach of trust and 11. deprivation of the use of funds and the same shall be assessed by the Deputy Registrar. Interest on the awarded amount 1n paragraph (i) will be 111. applicable at average bank deposit rate from the date of writ of summons to date of judgment and at average bank lending rate from the date of judgment until final payment. Costs are awarded to the Plain tiff, to be taxed 1n default of agreement. DATED THIS 15TH DAY OF 13