Kawalya and Another v Reamaton (Civil Appeal 6 of 1999; Civil Appeal 7 of 1999) [1999] UGCA 34 (15 June 1999)

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

### AT KAMPALA

### CIVIL APPEAL NO. 6 AND 7 0F 1999

## HENRY KAWALYA & ANOTTIER APPELLANTS VERSUS

REAMATON RESPONDENT CORAM: HON. JUSTICE C. M. KATO, J. A.(Single Judge)

#### RULING

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This matter came to this court by way of a reference against the order of the Registrar under Rule 109 of the Rules of this court. When the reference was called for hearing, Mr. Babigumira learned counsel for the respondent raised a preliminary objection, which is the subject of this ruling. The objection was to the effect that the reference was defective, as it did not give grounds ofreference. It was his contention that a reference being in form ofan appeal should be accompanied by grounds indicating the nature of complaint against the order of the taxing master and that there should be a prayer at the end ofthe grounds of reference. He supported his argument with the case of: Patrick Makumbi v Sole Electrics (U.) Ltd. Supreme Court Civil Application No. I l/94.

On his part Mr. Kihika counsel for the applicant opposed the objection. He submitted that Rule 109 under which the application was brought does not require any formal procedure to be followed when filing this sort of application. He pointed out that his letter of 1ll2l99 by which this reference was made clearly indicated two grounds which had necessitated the filing of the reference and that in the same letter he had made a prayer as to what the court should do.

Rule 109 of the rules of this court under which the reference was made reads as follows:

"109. (1) Any person who is dissatisfied with the decision of the Registrar in his or her capacity as a taxing officer, may require any matter of law or principle to be referred to a Judge for decision; and the Judge shall determine the matter as the justice of the case may require.

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- (2) For the purpose of sub-rule ( 1 ), any decision extending or refusing to extend time for the lodging of a bill of costs or any exercise by the Registrar of the over-riding discretion given him or her by paragraph l2 of the Third Schedule shall be taken to involve a matter of principle. - (3) Any person who contends that a bill of costs as taxed is, in all the circumstances, manifestly excessive or manifestly inadequate, may require the bill to be referred to a Judge and the Judge may make such deduction or addition as will render the bill reasonable. - (4) Except as provided in sub-rule (3), There shall be no reference on a Question of quantum only.

- (5) An application for a reference may be made to the Registrar informally at the time of taxation or by writing within seven days after that time. - (6) A reference to a Judge may be adjoumed by him or her for the consideration of the Court.

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- (7) Any person dissatisfied with a decision of a Judge given under this rule may apply to the Court to vary, discharge or reverse the decision. - (8) Any application under sub-rule (7) may be made either informally to the Judge at the time of the decision or by writing to the Registrar within seven days after that time."

With due respect, I do agree with Mr. Kihika's contention that this Rule does not anywhere stipulate that the reference must b e accompanied by formal grounds ofappeal, in fact sub-rule 5 specifically states that the reference may be informally made. It is true to say that a reference should contain some kind of complaint against the Registrar's decision but that complaint need not necessarily take the form of a memorandum of appeal. In the instant case the grounds ofreference were contained in the letter of l1l2l99 written to the Registrar by the applicant's counsel. The letter reads in part as follows:

We require you to refet to a single judge to determine the following matters of principal :

(a) Whether it was not an error of principal by the taxing master not to take into account the fact that the applicants chose not to prosecute the application and this saved the time of the Court and both counsel.

(b) Whether it was not an elror of principal on the part of the taxing mater to take into account the subject matter of the main suit whereas he is not required to.

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We shall pray that the court substitutes the award ot instruction fees for a lower and reasonable one. We shall request the court to award costs of the reference application to the applicants."

In my view these two grounds were enough to put the respondent to notice as to what matters the applicant was complaining about. Mr. Kihika's letter does not only contain the grounds upon which the reference is based but it also contains the prayer as to what remedy the court should award.

The case of Makumbi (supra) which Mr. Babigumira relied upon did not make any firm holding to the effect that references ofthis nature must be accompanied by formal grounds of appeal. What the court said in that case on this subject was as follows:

"The memorandum of reference was drawn and filed by Sendege, counsel for the first applicant. At the hearing of the reference Mr. Womutuba, counsel for the second applicant adopted the first applicant's memorandum with leave of Mr. Sendege."

This passage was not stating the position of the law as to what procedure must be followed when filing this kind of reference. In that statement the court was simply referring to the manner in which the reference had been made in that particular case. The decision in that case did not lay down any rule as to what procedure should be followed when lodging reference under Rule 109, in fact that matter did not come up for consideration in that particular case.

I find no merit in this preliminary objection, it is accordingly rejected with costs to the applicant.

Dated at Kampala this $15.4$ day of $14.4$ 1999.

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C. M. KATO JUSTICE OF APPEAL

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