Katunda v Atuhaire and Another (Civil Appeal No. 5/06) [2008] UGCA 24 (11 January 2008)

Full Case Text

#### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

HON LADY JUSTICE A,E,N. MPAGI-BAHIGETNE, JA. IION. MR. JUSTICE S. G. ENGWAA, JA. HON, LADY JUSTICE C. K. BYAMUGISHA, JA, S CORAM:

#### CIVIL APPEAL NO.5/06

#### BETWEEN

#### GODITREY KATUNDA APPELLANl'

#### l5 AND

- I 2 . tsETTY A'|UHAIIIE BWESHARIRI] . NABO'IH A'fAMBA ITESPONDtrNl'S - 20 [An qped ftom the rulihg tttld o ler of lhe High Cou of ttgtrutu sitti,tg ot Mbattro (Mtgamba J) lulel 2lh September 2005 in Misceltuneous Applicotion No.203/04J

#### JUDGMENT OF BYAMUGISHA, JA.

25 This appeal arises out of the ruling by Mugamba J wherein the appellant's application for revision was allowed with each party to bear its costs

The background to the matter now before us can be summarized as follows: The appellant filed a suit in the Local Council 1 court at Kyobukyera, Kyeibare,

-t0 Mutara, in Bushenyi District against the first respondent for alleged trespass to his tand. He lost the case on 25il' September 2004.

The very next day he filed an appeal to the LC I I court. The court was unable to hear the appeal under the pretext that the case was beyond its jurisdiction.

On 27'h September 2004 the LC 1 Chairperson issued a warrant of attachment and handed it to the second respondent as the court bailiffto put the first respondent in possession. The warrant in question was in the names ofthe first respondent and one Amos Kamujanduzi who was not a party to the suit.

5 On 30'h November 2004 the appellant filed Miscellaneous Application No.302l04 in the High Court Registry at Mbarara Circuit for revision. It was brought under the provisions of section J2 of the Executive Committees (Judicial Powers) Act; section JJ ofthe Judicature Act; section 98 of the Civil Procedure Act and Order 48 rules I and 3 of the Civil Procedure Rules.

The application was seeking many orders and reliefs. It was heard and partly allowed. The leamed judge set aside the judgment of the LC1 court and ordered the hearing ofthe dispute de novo in Bushenyi District Land Tribunal. The warrant of attachment was quashed and the court ordered the status quo

- I5 ante to prevail. As stated earlier each party was to bear its costs. The appellant was dissatisfied with the order for costs hence the instant appeal. The memorandum of appeal filed on his behalfhad 4 grounds but they were reduced to only one in a joint memorandum of agreed facts filed in this court on 26'h luly 2006. - 20 The ground is whether the leamed judge erred when he ordered each party to bear its own costs.

Mr Francis Bwengye represented the appellant. In his submissions he stated that the appellant was successiul in the l{igh Court and therelorc dcserved costs. He pointed out that the court had to give good reasons for denying costs and the

-5 errors that were commilted by thc lower court was not good reason for denying costs in the High Court.

FIe submitted quite rightly rhar section 27 of the Civil Procedure Act gives discretionary powers to award costs rvhich must be exercised on llxed principles.

I0 [ [c also referred to thc principlcs of non- interference on appcal with the exercise ol discretion by a lower court

Mr Ngaruye-Ruhindi, leamed counsel for the respondent, opposed the appeal and invited us to dismiss it with costs. He pointed out that the appellant having

15 been spared to pay costs in the High Court should not have come to this court on appeal.

He concurred with the submissions of Mr Bwengye on the legal principles in that costs follow the event unless the court orders otherwise. He supporled the decision ofthejudge which he termed good and therefore it should not be

20 interfered with.

It common ground that section 27(supra) gives wide discretion to the court as to costs ofthe proceedings. since they follor.v the event. However thc scction has a proviso, which statcs as fbllows:

"Provided thot the costs of un1' action, couse or muller sholl Jitllow lhe evcnt .t unless the courl or the judge shall fitr good reason otlterwise order."

Determining as to who should bear the costs is a discretionary matter which , like any discretion. must be exercised judicially, and the court ought not to exercise it against a successlul party, except for good reason connected with the

case. See Donald Campbell v Pollak lI92U A. C.732; Kiska Ltd v De Angelis fi9691 EA 6; lanmomohamed v Twenthche |1967J EA 26 and Muila on Code of Civil Procedure I2'h Etln page 150 Kompah Land Board v Narantlos Rajaram Co(Africo)Lttl Civil Appeal No. 32/05(CA). l0

An appellate court rvill not interfere with the exercise oldiscretion by a trial

- court unless it is shown clearly that the exercise was unjudicially or wrong principles were followed. Where a trial court gives reasons which do not constitute good reason. the appellate court will interf-ere and if no reasons are given. the appellate court will interfere if the order made was wrong. t5 - 2t) ln the instant appeal, the leamed judge gave only one reason fbr the order he the subject of revision. The error rvas the issuance of a warrant for the execution made. The reason is that court rvas involved in the errors that rvere committed-

olthe judgment befbre the expiry ol'l4 days within which an appeal could be lodged. The appellant succeeded in having the warrant quashed. Ilowever thc f'acts of the case are that the appellant filed a case in a court that had no jurisdiction and its.iudgment rvas a nullity to all intents and purposes.

.5 '['he appellant therefore cannot strictly be called a successful party in the language used in secliar 2 7(supra). The warrant rvas quashed fbr being issued outside the statutory period allorvcd by law.

The judge was correct in the exercise of his discretion and he cannot be l'aulted I find no mcrit in this appeal. It is accordingly dismissed with costs to the

I0 respondents

t-Datcd at Kampala this 200tt l.l......day o

C. l5 .lusticc of Arlpcal

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA

#### AT KAMPALA

#### CORAM: HON. LADY JUSTICE A. E. N. MPAGI. BAHIGEINE, JA HON. MR. JUSTICE S. G. ENGWAU, JA HON. LADY JUSTICE C. K. BYAMUGISHA, JA

### CIVIL APPEAL NO. 5/2006.

#### BETWEEN

GODFREY KATUNDA APPELLANT

#### AND

1 . BETTY ATUHAIRE BWESHARIRE

. NABOTH ATAMBA RESPONDENTS 2

[An appeal from the ruling and order of the High Court of Uganda sifting at Mbarara (Mugamba J) dated 2dh September 2005 in miscellaneous Application No. 203/041

### JUDGMENT OF ENGWAU JA.

I have read in draft the judgment of Byamugisha, JA and I entirely agree with her findings and conclusion dismissing this appeal. I have nothing useful to add.

Dated at Kampala this t .day of ... ...tf:::;.....2008.

S. G. ENGWAU Justice of Appea!.

#### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIJ'IL,IPPE,II- NO, 5 OF 2006

CORANI:

# HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA HON. JUSTICE S. G. ENGWAU. JA HON. JUSTICE C. K. BYAMUGISHA, JA

#### CODFREY KATUNDA :::::::::::::::::::::::::::::::::::::::: APPELLANT

#### vERSI. IS

# I. BETTY ATUHAIRE BWESHARIRE

2. NABOTH ATAMBA ::::::::::::::::::::::::::::::::::::: RESPONDENTS

(An Appeal front the rulittg of the High Court of Ugonda at Mbarara (Mugambn ,I) lared the 28't' September,2005 itr Miscettoneous Application No.203 of 2004)

#### JUDGEMENT OF HON. A,E. N. MPAGI-BAHIGEINE, JA

I have read in draft the judgement of C. K. Byamugisha, JA. I entirely agree with her that according to the facts of the case the learned Judge exercised his discretion properly when he ordered each party to bear its own costs'

I would also dismiss the appeal.

Since Engwau JA agrees. The appeal stands dismissed with c respondents osts to the

Dated at Kampala tfris .....tl.l.1\*a day of ....... . ..... 2008.

> Hon. A. E. N. Mpagi-Bahige JUSTICE OF APPEAL nc !a

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