Gukiina v Tebajanga (consolidated civil reference application 63 of 2021; consolidated civil reference application 64 of 2021) [2022] UGSC 41 (14 February 2022)

Full Case Text

#### THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA AT KAMPALA CONSOLIDATED CIVIL REFERENCE APPLICATIONS NO. 63 & 64 0F 2021

## ARISING FROM MISCELLANEOUS APPLICATION NO.17 OF 2O2O AND MISCELLANEOUS APPLICATION NO. 01- OF 2021

Gukiina Sarah Applicant

#### Versus

l. Tebajanga Tony 2. Ssekamanje George 3. Abraham Mukume Kiyiti Respondents 4. Namanyi Catherine (Administrators of the estate of the late Kizaalabye Eilith Grace)

### Ruling of Percy Night Tuhaise, JSC (Single ]udge)

The Applicant, Gukiina Sarah, filed two References, namely Civil Reference Application No, 63 of 2021, (arising from Miscellaneous Application No.17 of 2020) and Civil Reference Application No.64 of 2021. (arising from Miscellaneous Application No. 01 of 2021), and all arising from Court of Appeal Civil Appeal No.039 of 2008.

The two References were challengng a Taxation Ruling by the Assistant Registrar of this Court, sitting as the Taxing Master. The Taxation Ruling covered two Bills of Costs filed by the Respondents, the first relating to the Applicant's Notice of Appeal which was,uide Miscellaneous ApplicationNo.0l/2079 filed by the Respondents, struck off with costs by this Court for failure to prosecute iU and the second relating to this Court's dismissal of the Applicant's Miscellaneous Application No.77/2020 for leave to file and serve her appeal out of time.

Mr. Lwanga Hassan appeared for the Applicant while Mr. Nuwamanya Justus appeared for the Respondents. The Applicant did not attend, but Mr. Lutalo Mubarak attended Court on her behalf. The 2"d and 4ft Respondents attended the hearing ,"{-

When Miscellaneous Application No. 63 of 2021was called for hearing, Counsel for the Applicant prayed that it should be consolidated with Miscellaneous Application No. 64 of 2021since both applications (References) arise from one ruling which covered two bills of costs. The Respondent's Counsel did not object and the prayer was granted.

When the two consolidated References were called for hearing, Counsel for the Respondents raised preliminary objections on points of law that the consolidated References were incompetent

and barred in law, based on two reasons which he orally submitted on.

The first reason was that, following the delivery of the ruling by the taxing master on 26h November 202L, Counsel for the Applicant did not make an informal application before the Registrar for a reference to a Single Judge, neither did he file a written reference within 7 days after the delivery of the ruling as mandated by rule 106 (5) of the Rules of this Court. ..."S( The Respondents' Counsel referred this Court to pages L1"-15 of the record of proceedings regarding both References. He submitted that though the Applicant was in Court, there is no indication anywhere after the ruling was delivered that the Applicant applied for a Reference to this Court. Counsel also submitted that the Applicant hadT days under Rule 106 (5) of the Rules of this Court within which to file a written Reference, but he did not do so; that instead, both References were filed on the 23'd day of December, 2021; and that there is no evidence that the Applicants were given leave to file the References out of time, neither did they apply for any. Counsel relied on the decision of this Court in Utex Indushies V Attorney General SCCA No. 52 of 7995, and URA V Consolidated Properties Ltd SCCA No. 31 of 2O01., where it was held that time limits set by Statutes are matters of substantive

justice and not mere technicalities, and that as such they must be strictly complied with.

Secondly, Counsel for the Respondent submitted that he was not served with the two References within the 7 days as required by Rule 106 (5) of the Rules of this Court; and that the Applicant also contravened rule 18 of the Rules of this Court as to who should be served.

Counsel concluded by praying to this Court that the consolidated References be struck out with costs.

In reply, Counsel for the Applicant first prayed to this Court to be given time to file written submissions since he had not anticipated the objections. The Respondents' Counsel had no objection and the prayer was granted. -G(

Counsel, in his written submissions, stated that the now consolidated References were each filed and served in time on the Respondents' Counsel, in compliance with rules 106 (3) and 18 of the Rules of this Court. He referred this Court to pages 4 - 10of the record of proceedings/references and submitted that the ruling on taxation was delivered on 26m November 202L; that on the 1't day of December 2021, five days from the delivery of the Taxation Ruling, the Applicant through her lawyers, wrote to the Registrar of this Court, to the effect that she was dissatisfied with the

Counsel contended that there is a simple and expeditious manner of instituting references like the instant one under rule 110 of the Rules of this Court. He argued that in the instant case the Applicant's letter filed in this Court on 01/12/202'1. is not a reference within the meaning and compliance of rule 106 (5) of the Rules of this Court. He also argued that even if such letter was taken to be a reference, it was filed out of time; and that the only letter on record is that requesting for a record of proceedings to enable the Applicant to prepare a Reference, which, according to Counsel, cannot amount to a request to refer the matter to a Single Judge as envisaged in the Rules of this Court.

In his written submissions in surreioinder, which he justified by stating that the Respondent's Counsel's rejoinder raised fresh arguments regarding the procedure of instituting a Taxation Reference, and when the seven days' timeline within which to file the Reference starts to run, the Applicant's Counsel highlighted the process that was followed by the Assistant Registrar (Taxing Master) of this Court and himself from the time the Taxation Ruling was delivered to the time the now consolidated References were filed. He reiterated that the References were not filed out of time, that if there was any anomaly in the filing, the same should

Taxation Ruling in both Miscellaneous Applications No. 1 and No. 17 of 2020, and that they be referred to a Single Justice of the Supreme Court.

Counsel also submitted that even if there was any anomaly in the filing and service of the References, the same could be cured by Article 1,26 (2) (e) of the Constitution of the Republic of Uganda since the anomaly is a mere technicality which can be overridden with the necessity to serve substantive justice. He cited the case of Brenda Nabukenya V Rebecca Nalwanga Balwana, Court of Appeal Taxation Reference No. 208 of 2014, to support his arguments. -.-(

Counsel prayed that this Court finds no merit in the Preliminary Objection, and overrule it with costs to the Applicant, and further order that the consolidated References No. 63 &.64 of 2021be heard and determined on the merits.

ln rejoinder, the Respondent's Counsel submitted in his written submissions that the authority of Brenda Nabukenya V Rebecca Nalwanga cited by the Applicant was distinguishable from the instant case, that in the Brenda Nabukenya case, the Court of Appeal only dealt with the procedure of commencing a reference to the judge, where the Appellant's using a letter instead of a Notice of Motion was treated as a technicality. be treated as a technicality under Article 1,26 (2) (e) of the Constitution.

## Consideration of the Preliminary Objection

Rule 106 of the rules of the Judicature (Supreme Court Rules) Directions SI 13-11, herein referred to as the "Rules of this Court", provides for references on taxation.

Rule 106 (1) of the said Rules provides that:-

"Any person who is dissatisfied with a decision of the registrar in his or her capacity as a taxing oficer may require any matter of law or principle to be refened to a judge of the court for his or her decision and the judge shall determine the matter as tlrc justice of the case may require." (bolded for emphasis). M-

In addition, Rule 106 (5) of the same Rules provide that:-

" An application for a reference may be ntade to the registrar informally at the time of taxation or by zoriting within seoen dnys after that time." (bolded for emphasis).

This, in my considered opinion, means that one can apply to a Registrar for reference either informally at the time of taxation or by writing within seven days after that time. The two modes of applying for a reference are therefore alternatives, and either can suffice.

The record of the now consolidated References shows that the ruling of the Taxing Master regarding Miscellaneous Application No. 17 of 2020 and Miscellaneous Application No. 01 of 2021, was delivered on 26ft November 2021. The record also shows that there are two separate letters from M/S Tuhimbise & Co. Advocates addressed to the Registrar of this Courf in regard to each of the References. The letters were each duly received by the Registry of this Court on L't December 2021. Each of the said letters indicate that the Applicant was dissatisfied with the taxation ruling, and intends to have the taxation referred to a Single Justice. Each of the said letters highlighted the grounds of the intended reference and requested for certified copies of the ruling and the record of taxation proceedings to enable memorandum of reference. them prepare and file a

It is clear from the two separate letters on record that the Applicant, through her Counsel, informed the Registrar of this Court in writing about her intention to have the ruling of the taxing master referred to a Single Justice. The two letters, which were received by the Registrar of this Court on 1't December 2021., were filed five days after the ruling was delivered. This was clearly in compliance with Rule 106 (5) of the Rules of this Court which requires an application for a reference to be made to the Registrar of this Court

orally at the taxation, or in writing within seven days after the taxation.

The Respondent's Counsel in his submissions appears to suggest that a reference should be made within seven days after the taxation, and further argues that the letters written by the Applicant's Counsel are not references. In, my considered opinion, with respect, this is a wrong interpretation of rule 106 (5) of the Rules of this Court. 16-

I agree with the Respondents'Counsel that, indeed, the two letters the Applicant's Counsel wrote where he stated the Applicant's intention to have the taxation referred to a Single Justice are not references. The two letters are rather, applications for a reference, which is exactly what rule 106 (5) of the Rules of this Court envisages when it prescribed the time within which they can be made to the Registrar of this Court, that is either orally at the time of taxation, or written, within seven days after the taxation. Rule 106 (5) does not prescribe timelines for references, but rather, it does so for applications for references to the Registrar of this Court. Rule 106 (6) is the rule which provides for references, but even then it is silent about timelines for a reference, and only provides for the discretion of a Judge to adjourn a reference for the consideration of the Court.

Thus, based on the foregoing, I would overrule the Respondents' first objection.

The second objection, was firstly, that the Respondents' Counsel was not served with the References within seven days as required by rule 106 (5), and secondly, was with regard to who was served under rule 18 of the rules of th#Court.

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As already observed above, rule 106 (5) of the Rules of this Court does not specify when service of the Reference should be done. However, rule 18 of the same Rules states that service of documents should be effected in such a way as the court may, in any case, direct which shall normally be a way in which a comparable process of the High Court could be served. 1fi

There is an affidavit of service on record filed by the Applicant's Counsel. It was sworn by Asiimwe Bosco, on 25ft January 2022 and was filed in this Court on the same day. In the affidavit, Asiimwe avers that on 19m January 2022, he physically went to M/S Arinaitwe Law Advocates Plot 22 Jinja Road, Spear House, and served copies of the Taxation References and hearing notices to a one Jovas, a Receptionist at the Law firm. A copy of the hearing notice dated 19ft of January 2021, is attached to the affidavit of service. It is duly stamped received by the Respondents' Law Firm and the receiving date is 19h January 2021,. This was the same day

the hearing notices were issued. With respect to time, given that both the References and the hearing notices were signed and sealed by the Registrar on L9ft January 2021., and that the same were served upon the Law Firm of the Respondents' Advocate that same day, an objection cannot arise as to time of service.

In the second part of the objection, Counsel for the Respondent did not specify upon whom he objected to being served by the Applicant. This Court cannot speculate on his behalf who or why he objected to such person being served. Rule L8 (2) of the Rules of this Court allows service of any document to be effected upon the Appellant's or the Respondent's Advocate. Further, rule 18 (3) provides that service on a partner or a clerk of an Advocate at the office of the Advocate shall be taken to be service on the Advocate.

The affidavit of service of Asiimwe Bosco states that service was effected upon the Receptionist at Counsel for the respondent's Law Firm. However, as already stated, learned Counsel for the Respondents did not specify to this Court who exactly he objected to being served in his Law Firm. Nonetheless, even if it were to be that the Respondent's Counsel specifically objected to a Receptionist being served with documents, I would, in the spirit of Article 126 (2) (e) of the Constitution, treat this situation as a

technicality which should not override the administration of substantive justice, more so,, since the Respondents' Counsel, as well as the 2"d and 4ft Respondents, attended Court on the date fixed for hearing of the instant consolidated References.

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I would, based on the foregoing, overrule the Respondents' second objection.

Thus, for reasons given, the preliminary objections raised by Counsel for the Respondent are overruled. Costs will be in the cause.

The hearing of the consolidated References should accordingly proceed

Dated at Kampala this day of February 2022. +^ \

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Percy Night Tuhaise justice of the Supreme Court