Isaya v Masereka (HCT-01-CV-CA 4 of 2023) [2024] UGHC 226 (19 April 2024)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL** 3 **HCT – 01 – CV – CA – MO. 004 OF 2023 (ARISING FROM TAX APPLICATION NO. 59 OF 2023) (ARISING FROM REVISION APPN NO. 6 OF 2019 AND ELECTION** 6 **PETITION NO. 001 OF 2019) THEMBO ISAYA :::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT VERSUS** 9 **MASEREKA GODFREY SHARIFU :::::::::::::::::::::::::::: RESPONDENT**

# **BEFORE: HON. JUSTICE VINCENT WAGONA**

### **RULING**

12 This appeal arises from the decision of the Deputy Registrar, His Worship Matenga Dawa Francis where he dismissed Taxation Application No. 59 of 2023 for non attendance of the parties.

15 The applicant is seeking orders that; the order of the Learned Deputy Registrar/Taxing master dismissing the taxation application on 28th November 2023 be set asid; that the appellant's bill of costs be taxed and a certificate issued and the costs of taking out the

18 appeal.

The application was supported by an affidavit deponed by the appellant where he averred as follows:

- 21 1. The applicant was the successful party in Misc. Application No. 8 of 2023 where court awarded him costs of the application. That he later filed a bill of costs under Taxation Application No. 59 of 2023. - 2. That on the 11th 24 day of October 2023, a pre-taxation meeting was held between counsel for the appellant and the respondent and they agreed on some items in


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the bill. That on 12th October 2023, the appellant's lawyer submitted to court that they had done a pre-taxation meeting and agreed on some of the items with the 3 opposite counsel and a consent was to be filed.

- 3. That the consent was later filed on 30th October 2023 reflecting the agreed items and those which were not agreed upon. That on the 28th day of November 2023, 6 the Deputy Registrar dismissed the taxation application for lack of appearance by either party on the date fixed for mention. - 4. That the taxing master/officer erred in law and fact when he dismissed the 9 taxation of the appellant's bill of costs when a pre-taxation meeting had been held and the items to tax were indicated. That the taxing master erred in law and fact when he did not consider the consent reached at the pre-taxation meeting. - 12 5. That the taxing master erred in law and fact when he failed to tax the items not agreed upon by the parties and dismissed the taxation application.

The application was served per the affidavit of service on record and the motion was

15 duly acknowledged by M/s Bagyenda & Co. Advocates being counsel who represented the respondents. No response was made by the respondent an indication that he did not intend to object to the application. I shall thus proceed and consider this application 18 exparte.

#### **Issues:**

*Whether or not the taxation master erred when he dismissed taxation application No.* 21 *59 of 2023 for lack of action and appearance by either party on the date fixed.*

#### **Hearing and Representation:**

Mr. Bwiruka Richard appeared for the appellant and filed written submissions in 24 support of the application which I have duly considered herein.


#### **Resolution:**

Order 50 rule 8 of the Civil Procedure Rules grants an automatic right of appeal to a 3 party aggrieved by the decision of a Registrar to the judge. It provides thus;

> *"Any person aggrieved by any order of a registrar may appeal from the order to the High Court. The appeal shall be by motion on notice*."

6 Section 62 (1) of the Advocates Act provides further provides that;

*"Any person affected by an order or decision of a taxing officer made under this Part of this Act or any regulations made under this Part of this Act may appeal* 9 *within thirty days to a judge of the High Court who on that appeal may make any order that the taxing officer might have made."*

Learned counsel for the applicant contended that the learned trial Deputy Registrar 12 erred in law and fact when he dismissed the bill instead of taxing the same. He argued that Rule 13A of the Advocates (Remuneration and Taxation of Costs) Regulations as amended by SI 7 of 2018 provides that:

- 15 (1) The advocates for the respective parties or the parties themselves, if unrepresented, shall jointly identify the costs, fees and expenses on which they agree if any, before the taxation of the bill of costs. - 18 (2) For every taxation, the taxing officer shall record the costs, fees and expenses that are identified in sub regulation (1) if any and then proceed to tax the costs, fees and expenses on which there is no agreement if any. - 21 He submitted that in the instant case, the appellant filed a bill of costs under Taxation Application No. 59 of 2023 and on 11th October 2023, a pre-taxation meeting was held between both counsel for the parties and a consent was filed to that effect where items - 24 agreed upon were included and those where they failed to agree upon were left to the


taxing officer to consider. That the learned Deputy Registrar thus erred when he dismissed the taxation for lack of action yet preliminary steps had been taken by the 3 parties as provided for under the law.

He further asserted that rule 54 of the Advocates (Remuneration and Taxation of Costs) Regulations S.1 267-1, provided that the taxing master shall have the power to proceed

- 6 with the taxation exparte in default of appearance by either party or both of the parties or their advocates and to limit or extend the time for any proceedings before him or her and for proper cause to adjourn the hearing of any taxation from time to time. That in - 9 the present case since there was a pre-taxation meeting, the learned registrar had the discretion to proceed and consider the items which were not agreed upon exparte.

#### **DECISION:**

- 12 The law assumes that a taxing officer is a prodigy of taxation with vast knowledge and experience in such areas. Therefore interference by court in his decisions should be in exceptional circumstances where the law was not followed or where the principles of - 15 taxation were not taken into account in arriving at his findings. (See: *Mutegeki Ronald v Tibakunirwa Robert, High Court Taxation Appeal No. 006 of 2022*).

It was contended by Mr. Bwiruka for the appellant that the taxation officer erred when 18 he dismissed the bill on account of parties failing to take steps to progress the same when efforts had been undertaken to that effect. There was a pre-taxation meeting where parties and the advocates agreed on some items and failed to agree on others which 21 were submitted to the taxing officer for consideration.

*The Advocates (Remuneration and Taxation of Costs) (Amendment) Regulations 2018 No. 7* introduced the pre-taxation meeting where it is provided that:

24 *"13A. Pre-taxation meeting of advocates or parties*


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- *(1) The advocates for the respective parties or the parties themselves, if unrepresented, shall jointly identify the costs, fees and expenses on which they* 3 *agree, if any, before the taxation of a bill of costs.* - *(2) For every taxation, the taxing officer shall record the costs, fees and expenses that are identified in sub-regulation (1) if any, and then proceed to* - 6 *tax the costs, fees and expenses on which there is no agreement, if any."*

There is a preliminary requirement for the parties or their advocates to hold a pretaxation meeting on which they may agree on some items of the bill before the same is 9 considered by the taxing officer. This requirement makes taxation of costs a participatory process. Where parties agree on items in the bill and fail to agree on others, the items where there is no agreement by the parties are submitted to the taxing 12 officer.

Under Rule 54 of The Advocates (Remuneration and Taxation of Costs) Regulations S1 267-5 as amended, the taxing officer is granted the discretion to proceed and tax the 15 bill exparte in default of the appearance of either or both parties or their advocates, and

- to limit or extend the time for any proceedings before him or her, and for proper cause to adjourn the hearing of any taxation from time to time. - 18 In the present case, the advocates of either party held a pre-taxation meeting and agreed on specific items which are contained in the consent signed by both counsel and filed on 31st October 2023. The consent indicated the items the parties agreed upon and - 21 listed the items which they failed to agree upon and indicated that the same be determined by court and a copy of the said consent is attached to the application as annexure A3. - When the case came up for mention on 12 24 th October 2023, learned counsel Musinguzi informed court that a pre-taxation was done and agreed on the entire bill and it was due


for endorsement by the opposite counsel. He prayed for one week adjournment and the matter was accordingly adjourned to 2nd November 2023. On the 2nd/11/2023 Mr.

- 3 Bwiruka for the judgment debtor was present and Nyaketcho holding brief for Mishelle Geofrey for the Judgment debtor. Court noted that the consent was not on file and the matter was adjourned to 28/11/2023 at 10:00am. - 6 On 28/11/2023, the parties were absent and the taxing officer dismissed the taxation application for lack of action and appearance by either side on a date fixed for mention on action points. The best course of action would have been to consider the bill in - 9 accordance with rule 54 already cited above. I thus set aside the order dismissing the taxation application No. 59 of 2023. This application therefore succeeds with the following orders: - 12 **1. The order dismissing taxation application No. 59 of 2023 is hereby set aside.** - **2. The file is remitted back to the Deputy Registrar to tax the items which parties failed to agree upon.** - 15 **3. Each party shall bear their own costs.**

**I so order.**


18 Vincent Wagona **High Court Judge FORTPORTAL**

**DATE: 19/04/2024**