Hyabene v Attorney General (Civil Application 4 of 1996) [1996] UGSC 30 (27 September 1996)

# THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA AT MENGO

(BEFORE A SINGLE JUDGE: KAROKORA, J. S. C.)

### CIVIL APPLICATION NO. 4 OF 1996

#### **BETWEEN**

Y. M. HYABENE ................................... AND ATTORNEY GENERAL ......................... RESPONDENT

> (Misc. Application. No. 359/96: Under Retrial of HCCS 94/90 The result of Supreme Court Appeal No. 2/93 Judgment dated 9/3/95)

#### RULING

$\quad .$

This application seeks leave of this Court to extend time within which the applicant should lodge an application for the Judge to waive or vary the Manifestly Inadequate Taxation of the Applicant's Bill of Costs in Civil Appeal No. 2 of 1993, where the Registrar of this Court awarded Shs. 925,000/- to the applicant as costs when the total bill of costs was Shs. $4,495,000/z.$

The ground for this application was that he delayed to refer the matter to the Judge for his decision, because he thought that if he filed it immediately he would not be paid his taxed costs, which he badly needed for purpose of refunding his creditors who had lent him money to enable him to prosecute the After getting the taxed costs from the respondent and case. paying his dues to his creditors, he decided to file this application for extension of time so that the bill of costs is fairly taxed.

He submitted that his application was supported by his affidavit sworn on 6/3/96.

Mr. Cheborion-Barishaki, Principal State Attorney for the State opposed the application, because he contended, there were no sufficient reasons advanced for extension of time. The reason the applicant gave was not sufficient reason contemplated by Rule He contended that it was not 4 of the Rules of this Court. reasonable for him to say he wanted to get money first before he He contended further that it could embark on this exercise. would have been reasonable if he had said he had no money to move the Court, because that would amount to sufficient reason to persuade the Court to extend time.

Further, it was contended that even if extension of time was granted the applicant had no chances of success for reference. The only reason the applicant gave was the Taxing Officer gave He did not state that the Taxing Officer Inadequate Costs. deriated from the principle governing Taxation.

Now having carefully perused the application and having heard submissions of the applicant on one hand and Mr. Barishaki, Principal State Attorney for the State on the other hand, I must first deal briefly with the Affidavit sworn in Order 17 of the Civil Procedure support of the application. Rules (CPR) provides the manner and when Affidavits must be An Affidavit is a written Statement made on Oath sworn. containing true facts signed by deponent before Commissioner for Oaths, designed for use as proof in a Court of Law. Rule 3 (1) of Order 17 states:

> "Affidavit shall be confined to such facts as the deponent is able of his own knowledge interlocutory except $\boldsymbol{\texttt{on}}$ to prove, application on which statements of his belief may be admitted, provided that the grounds thereof are stated."

Bearing in mind the above Rule, I think the Affidavit sworn by the applicant would no where be near what is an Affidavit. For instance, in para, 4, he averred:

"that there existed an open bias in the Ruling of the Taxing Officer, and in the of justice interest this applicant's application to be filed in lateness should be granted."

Further in para 5 he averred:

"That evidence on the record of the Bill of Costs indicate that both the Taxing Officer and the State Attorney who appeared at the Taxation Court at the hearing of this Bill of Costs, were incompetent to preside and represent the respondent, because:

- $(a)$ It was an obvious matter to prove at the hearing that the Taxing Officer relied on the State Attorney's baseless and groundless submissions against a clear Bill of costs of pauperly man, appearing in person. - (b) That furthermore, the Taxing Officer, who had only taken over from his predecessor with a limited time to peruse the records of the appeal and the Bill of Costs, to manage making a proper assessment of the Bill of Costs; exercised the process of his Ruling in more or less a matter of absent minded."

I must state that from above paragraphs, it is clear that the Affidavit is based on the personal opinion of the respondent. It is not based on the facts. In other words, the Affidavit is not based on deponent's own knowledge. It is based on his own opinion, which is no evidence at all.

That, apart, I think it would not be sufficient reason for the applicant to say that he did not apply reference in time, because if he had done so, the respondent would not pay the taxed costs, and thus, the applicant would not get the taxed costs, which he badly needed to pay to his creditors. Here the applicant is not saying he was unable to apply for reference because of pauperism. He was permitted by the Court to sue and appeal as a pauper. So he cannot complain that there was sufficient reason relating to his inability to take a particular step in time; that is, to refer the matter in question to a Judge for his decision. The reason he is giving is that if he filed

application for reference to the Judge for his decision in time, the respondent would not have paid him the taxed bill, which he claimed was grossly inadequate. He stated that he accepted and got the taxed costs from the respondent. After the respondent had paid, then he (applicant) decided to make this application so that the bill of costs could be fairly taxed.

While on this issue, I think in all fairness, it would not be proper for one to approbate an award by the Court and after reaping the Courts award reprobate the same award. That is that one cannot take the advantage of an award by the Court and at the same time say that it is not an award which binds one. So the applicant cannot take advantage of the award by the Taxing Officer and at the same time say that the award was grossly inadequate. See Verschures Creamaries v Hull & Hull & Netherlands Steamship Co. (1921) 2 KB 603, Dexters Ltd & Hillcrest Oil Co. (1925) ALLER 273 at page 276 and European Grain & Shipping Ltd v. John (1982) 3 ALLER 1989 where Lord Denning cited with approval the holding in Dexters Ltd case (supra) that a person could not reap the fruit of an award, because that infers that the award was right, and afterwards say that the award was wrong. He said:

> That is the same thing as saying first: T approbate this award and claim a benefit of Shs. 2,000/- under it; pay me that Shs. 2,000/- under it; pay me that Shs. 2,000/=; and then when he has got it, saying: "I reprobate this award and say it is wrong and ask you to subsisted another award...." $\mathbf{r}$

The above observation in my view apply to this case, although the observations were made in a case from a different jurisdiction. In my view even if time was granted for extension, he would not succeed on reference. Although likelihood of success is not a ground for extension of time under Rule 4 of the rules of this Court, it goes to strengthen applicant's case if he can show and prove it. In this case likelihood of success is very slim in view of the above abservations.

Secondly the likelihood of success are slim in view of the fact that the applicant was complaining merely because the Taxing Officer awarded him inadequate costs. The applicant never stated that the Taxing Officer deviated from the principle governing taxation. The Court of Appeal for East Africa held in Cost Brick & Titles Works Ltd & 4 Others v Prinmchand (1964) EA 517 that where there has been no departure on the part of the Taxing Master from the principles which govern taxation of costs, the Courts will not interfere with the award. Furthermore, in Thomas Arthur v Nyeri Blectricity Undertaken (1961) BA 492 the Court held that it is only in cases where there has been error in principle that the Court will interfere with Taxing Master, but question solely on quantum are regarded as matters within which the Taxing Master are fitted to deal and Courts will interfere in exceptional circumstances.

Therefore, in the circumstances, this application for extension of time has no merit. Accordingly, it is hereby dismissed. As the respondent asked for no costs, I award no costs to the respondent.

Dated this..27th.. day of ... September.., 1996.

## A. N. KAROKORA JUSTICE OF THE SUPREME COURT

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL

STRAR. SUPREME COURT.