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Sesana and Another v The Attorney General (Civil Appeal No. 21 of 202) [2003] BWCA 16 (23 January 2003)

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IN THE COURT OF APPEAL OF BOTSWANA
HELD AT LOBATSE
Court of Appeal Civil Appeal No.21 of 2002 (High Court Miscellaneous Application No. 52 of 2002)
In the matter between:
ROY SESANA       1st Appellant
KEIWA SETLHOBOGWA & OTHERS       2nd and further
Appellants
Versus
THE ATTORNEY GENERAL
(in his capacity as recognized agent of  Respondent
THE GOVERNMENT OF THE REPUBLIC OF BOTSWANA)
Advocate J. R. Whitehead with him Mr. Bayford for the Appellants Mr. A. C N. Nchunga with fiim Mrs. F. Matthews for the Respondent
JUDGMENT
CORAM: TEBBUTT, J.P.
R. I. SUTHERLAND, J.A. A. M. AKIWUMI, J.A.
TEBBUTT, J.P.:
This judgment relates in the main to a matter of costs.

The appellants who live in the Central Kalahari Game Reserve (CKGR) in Botswana brought an application in the High Court for an order, to put it in its briefest terms, that the Government restore to them certain basic and essential services which they allege the Government had terminated and further that certain of the inhabitants of the area who, they said, had been forcibly removed from the area, be restored into possession of their land. The Government opposed the application. The Attorney General, representing the Government, at the outset took a number of points in limine many of which related to the affidavits filed in support of the application. The matter came before Dibotelo J who upheld most of the points and dismissed the application with costs, but granted the appellants leave to institute fresh proceedings, if they so wished, on papers prepared in compliance with the Rules of Court. The appellants appealed to this Court against that judgment.
The appeal was enrolled for hearing on 11th July 2002. When the matter came before this Court, the Court expressed to counsel for both parties the view that whether it upheld the judgment of Dibotelo J or set it aside, on the affidavits which were already filed and many others which would have to be filed either by the appellants or by the respondent there would clearly be serious disputes of fact. In the light
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of this the sensible course would be, without incurring further costs in debating preliminary matters, to refer the case to the High Court for the hearing of oral evidence on the disputed issues in order to achieve a speedy resolution of them. Those issues should be suitably defined. As the appellants were, on their allegations, being denied certain basic rights and some of them being kept off their land, it was obvious that the matter was one of urgency. Counsel for the appellants pointed out that most of the appellants live in an area far removed from the High Court in Lobatse, and that it would be preferable if their evidence could be taken by a Judge sitting in Ghanzi which was the nearest large town to CKGR. Counsel for both parties agreed with the views expressed by the Court and, accordingly, an order was made by this Court in the following terms:
"1. The appeal is postponed to a date to be arranged with the Judge President.
2.       The appellants' and respondent's legal
representatives will formulate the issues on which the matter may be referred to the High court for the hearing of oral evidence on or before 10th August 2002.
3.       The costs of today will stand over for later
determination."
A further fact that requires to be mentioned is that counsel for the appellants intimated that their funds were depleted and that they
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would require time to source further funds in order to pursue the matter in the High Court. I, as Judge President, agreed that if and when such funds became available the issues as defined could be put before me and that I would then refer those issues to a judge of the High Court who would preside at the hearing of oral evidence.
On 12th August 2002 the appellants' attorneys, the necessary funds now having apparently become available to appellants, wrote to the Attorney General attaching a copy for the approval of the Attorney General of a draft order containing their suggestions as to the issues which should be determined. These included the hearing of oral evidence in Ghanzi. On 16th August 2002, the Attorney General replied to that letter stating:
"We have perused your draft order and fail to agree with it. It is biased in favour of the appellants and they are disadvantageous to the respondent in many ways. Your draft does not mention the fact that the respondents were awarded costs. The draft does not consider that the appellants' papers were incurably defective and need to be re-filed before any agreement regarding an oral hearing can be finalised. The draft does not consider the fact that the bulk of the respondent's witnesses are in Gaborone ... The draft presupposes that the Judge in the court a quo will automatically refer the case for oral evidence without considering the evidence in the affidavits. The draft does not try to resolve the issue of the appellant's papers having been pronounced defective and the Court of Appeal not having ordered the resuscitation. The appellants have no pending case until they re-file fresh papers."
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A suggested re-draft was furnished by the Attorney General in which the following appears:
"The appellants will within six weeks of this order re-file properly attested affidavits in accordance with the Rules of Court. The appellants will, within six weeks of this order, pay the respondent's costs for the hearing at the court a quo. Each party will bear its costs in the Court of Appeal hearing."
This was not acceptable to appellants. The matter was accordingly re-enrolled for hearing before this Court on 23 January 2003.
On 21 January 2003 the appellants' attorney filed a supplementary affidavit attaching certain letters that had passed between him and the Attorney General subsequent to August 2002. In a letter dated 17th January 2003 the Attorney General said:
"Secondly we wish to remind you that we have a well reasoned High Court Judgment of Learned Judge Dibotelo which was in our favour and as far as we are concerned it has not been overruled by the Court of Appeal. The Appellants' papers have not been re-filed, therefore as far as we are concerned the Appellants have failed to comply with the order of the Court a quo to file proper papers. If the Learned Judge in the Court a quo had ruled that the Appellants papers were not in order, what happened between them and now which has miraculously cured those incurable defects?"
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When the matter was called for hearing on 23 January 2003, the Court referred to the order made on 11 July 2002 and queried why no agreement had been reached as to the issues to be determined at the hearing of oral evidence. It again suggested to counsel on both sides that these could easily be defined and that the matter should proceed to the hearing of oral evidence as expeditiously as possible. The Court pointed out to the Attorney General's representative that the whole purpose of referring the matter for the hearing of oral evidence was to overcome any problems in relation to affidavits filed thus far and that any issues relating to them should no longer be a consideration in having the dispute between the parties resolved by oral evidence. Counsel for both parties thereupon proceeded to draw up an agreed list of issues. One factor was the question of the hearing of evidence at Ghanzi. Although this had been the subject of agreement on 11th July 2002, the Attorney General expressed reservations about having his witnesses testify there, a matter which created a stumbling block to the finalisation of the issues to be determined. This was resolved on 23 January 2003 by agreeing that certain witnesses would, for convenience, testify in Ghanzi and others in Lobatse.
What was, however, in dispute on the latter date was the question of who should bear the costs of the hearing on that day. The appellants
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contended that they should be borne by the Attorney General, as it was he who had caused the matter to have to be re-enrolled, and that they should be paid on the attorney-and-client scale. The Attorney General contested this. The Court was then called upon to determine the issue. It is that issue which, as stated at the start of this judgment, is the main subject of it. The Court ordered that the Attorney General, as respondent, should pay those costs, but on the party and party scale. It did not accede to the request of the appellants' counsel that they should be paid on the scale as between attorney and client.
The Court's attention was also drawn to the fact that a security bond had been provided by the appellants as security for costs of the appeal from the High Court to this Court and that the return of that bond required an order from this Court. It was agreed between the parties that such an order should be made. Having ordered the respondent to pay the costs of the hearing on 23 January 2003, the Court intimated that it would furnish its reasons for so doing, and these are those reasons.
The Attorney General clearly misunderstood the entire import of this Court having ordered that the matter be referred to the High Court for
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the hearing of oral evidence on issues to be determined. That order was made with the agreement of the parties. It was so as to have the dispute between the parties expeditiously resolved and to avoid further litigation about the defectiveness or otherwise of any affidavits or any other points in limine raised up to that stage. His statement in his letter of 10 August 2002 that the appellants' draft "presupposes that the Judge in the court a quo will automatically refer the case for oral evidence without considering the evidence in the affidavits" is clear evidence of his total misconception of what the position was. This Court had already referred the matter to the High Court for the hearing of oral evidence in its Order of 11 July 2002. It was only the issues on which such evidence had to be heard that was still to be settled. Moreover, it was agreed that the costs of the hearing in the Court of Appeal on 11 July 2002 would stand over for later determination. The Attorney General's statement, in his draft order on the issues, that each party would bear its own costs in the Court of Appeal hearing was accordingly in conflict with that order. The Attorney General's continued averment both in his letter of 16th August 2002 and of 17 January 2003 that the matter could not proceed to the hearing of oral evidence without the appellants' affidavits and papers being recast was completely misplaced and in direct conflict with what the agreement was between the parties on 11 July 2002 and with the
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Court's order of that day. It is clear therefore, that it was the attitude of the Attorney General in relation to the future conduct of the matter after 11 July 2002 that gave rise to the necessity for the appellants' having to re-enrol the appeal and for the appearance of the parties in this Court on 23 January 2003. The Court therefore decided that the Attorney General should have to bear the costs of that day and it was accordingly so ordered.
To avoid any further misunderstanding or confusion and in order that there be clarity as to what the Order of this Court was on 23 January 2003,that order is set out again hereinbelow as follows:
"1. An order is made in terms of the draft order initialled "PHT 23/1/2003" annexed hereto and marked 'A'
2.     
The Attorney General, as respondent, is ordered to pay the wasted costs of the hearing in the Court of Appeal on 23 January 2003 including the costs of counsel on the party and party scale.
3.     
It is ordered that the Surety Bond entered into by the appellants in respect of security for the costs of the appeal be returned to them by the Registrar of the Court."
DELIVERED IN OPEN COURT AT THE COURT OF APPEAL, LOBATSE, this 23rd day of January 2003.

P. H. TEBBUTT JUDGE PRESIDENT
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I agree,        
R. I. SUTHERLAND JUDGE OF APPEAL
I agree,
A. M. AKIWUMI JUDGE OF APPEAL

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