Kidega Lak v Non-Performing Assets Recovery Trust (CIVIL APPEAL NO.27 OF 2000) [2001] UGCA 55 (1 January 2001)

# THE REPUBLIC OF UGANDA IN THE COTIRT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO.27 OF 2OOO

# TITUS KIDEGA LAK APPELLANT

### VERSUS

## NON-PERFORMING ASSETS RECOVERY TRUST :::::::]:::::]::::::: :: :: ::::::: ::::: RESPONDENT

(Appeal from the ruling of the High Court of Uganda at Kampnla (Mr. Justice Malinga G. O.) dated 24/5/98 )

## CORAM: HON. JUSTICE C. M. KATO,.lA. HON. JUSTICE G. M. OKELLO, JA. HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA.

## <sup>J</sup>T] DG]VIENI' OF- C. I!T. K{TO J. A.

This is an appeal against the ruling ofthe High Court Judge ordering each party to meet its own costs.

20 The background of the case may be surnrnarised as follows. The appellant, who is a court bailiff, was authorised by the High Court District Registrar at Lira to carry orrt an execution in a number of cases involving Uganda Cotnmercial Bank, as the.ludgment creditor. This bank was replaced by the present respondent, the Non-Perforrning Assets Recovery Trust under the provisions of statute No.ll of 1999. The appellant was stopped by the respondent from proceeding on with the execution. The appellant then drew up bills of costs in respect of the decrees he had executed. The bills were duly taxed by the District Registrar at Lira. He sought to recover those costs {iom the respondent. 30 The District Registrar issued notice to the respondent to show cause why it should not pay the appellant's costs. Counsel for both parties appeared and addressed the Registrar on the issue and he ruled that no cause had

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been shown by the respondent as to why it should not pay appellant's costs. He ordered execution to issue against the present respondent. The respondent appealed to the High Court against the order ofthe Registrar. The High Court dismissed the appeal on the ground that it was timebarred. The judge ordered each pafty to bear its own costs because the appeal arose from orders which were a nullity. The appellant has now appealed against that part of the order concerning the costs, on the sole ground that the learned trial judge ened in law and fact in ordering each party to bear its own costs.

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Both parties made written submissions. Mr. Vincent L. Okucha Emoru, learned counsel for the appellant, contended that as the appellant was successful in the appeal before the High Court he was entitled to costs under section 27 of Civll Procedure Act. He further contended that the judge acted on the wrong principle when he exercised his discretion and that the statement made by the judge to justify his refusal to award the appellant costs was obiter dictum.

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Mr. Peter Nkurunziza, counsel for the respondent, submitted that a judge has discretion to deny a successful party costs. According to him the judge correctly refused to award costs to the appellant since the orders by the District Registrar were null and void. In his view, the judge had good reason within the meaning of section 27 of the Civil Procedure Act, for not awarding costs to the appellant.

It is trite law that award of costs is at the discretion of the court and that unless there are special reasons a successful party should be entitled to costs (See: Bhagwanji Roja v Swaron Singh s/o Hari Singh [962] EA 288 at page 299).

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Counsel for both parties agree that the statutory law governing costs in this country is essentially to be found in section 2'7 ofthe Civil Procedure Act which reads:

" 27 (l) Subject to such conditions and limitation as may be prescribed, and to the provisions ofany law for the time being in force, the costs of and incident to all suits shall be in the discretion of the court or.iudge and the court or judge shall have full power to determine by whom and out ofwhat property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the court orjudge has no jurisdiction to try the suit shall be no bar to the exercise ofsuch powers.

Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.

(2) The court or judge may give interest on costs at any rate not exceeding six per centun per annum and such interest shall be added to the costs and shall be recoverable as such. rr

In the instant case, the reason given by the judge for denying the appellant costs was that the orders which the District Registrar made concerning the decrees which are subject of this appeal were null and void. In his ruling, the judge does not attribute the illegality to the appellant. I am of the view that the judge was wrong to penalise the appellant for the alleged wrongs comrnitted by an official of the court. The appeal was dismissed because the respondent (appellant in the High

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Court) had instituted it when it was tirne barred, it was therefore irnproper to deny the present appellant his costs for the respondent's mistake. I agree with Mr. Emoru's contention that even in Makula Internotional Ltel. v His Emminence Cordinul Nsubusa and a,rother lI982l HCB Il where the court found that there was an illegality still it did not order each party to bear its own costs, one of the parties was condemned in costs. Illegality per se should not be a ground to deny an innocent party its costs. I would hold that there was no good reason within the meaning of the proviso to section 27(l) of the Civil Procedure Act to warrant the appellant being denied his costs.

The appellant being a court bailiff, his costs are not governed by the provisions of section 27 of the Civil Procedure Act alone but also rule l3(4) of the Court Bailiffs Rules I987. Although the judge alluded to this (he mistakenly referred to the year as l98l not 1987) rule in his ruling he rnisdirected himself as to its correct interpretation. The rule reads as follows:

> " I3(4) Ifexecutiott is prevented on a stoy of erecution for whatever cause tlre court bailiff s costs, if any, shall he poid bv the iudgntetrt cretlitor" (my underlining).

My understanding of this rule is that once a court bailiff has been duly instructed to carry out execution and he does so, lre is entitled to his costs despite the fact that the execution has been stayed. In light ofthe above clear provision of the law, I cannot see how the appellant could have been denied his costs.

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In the result, I would hold that the judge was not justified in ordering each party to bear its own costs. The appellant who was the winner was entitled to his costs. I would therefore allow this appeal and set aside the order of the judge with costs here and in the court below to the appellant.

Since Okello, JA. and Mpagi-Bahigeine, JA. also agree, the appeal is allowed with costs in this court and in the High Court to the appellant. The High court order concerning costs is set aside. So it is ordered.

Dated at Kampala this $\frac{14}{4}$ day of $\frac{17}{4}$ My....... 2001. 10

C. M. Kato **JUSTICE OF APPEAL**

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

### HON. C. M. KATO, JA. **CORAM:** HON. G. M. OKELLO, JA. HON. A. E. MAPGI-BAHIGEINE, JA.

## CIVIL APPEAL NO. 27 OF 2000

$\cdot$

### **BETWEEN**

### TITUS KIDEGA LAK:::::::::::::::::::::::::::::::::::

### AND

#### NON-PERFORMING ASSESTS}::::::::::::::::::::::::::::::::: **RECOVERY TRUST** $\mathbf{I}$

(Appeal from the ruling of the High Court (Malinga J (RIP) dated 24/5/98 in High Court Misc. Application No. 899 – 906 of 1998)

## **JUDGMENT OF G. M. OKELLO, JA**

I have had the chance to read in draft the judgment of C. M. Kato, JA and I agree with his reasoning and conclusion. I have nothing useful to add.

Dated at Kampala this $14/\hbar$ day of $\mu$ 2001

G. M. OEKLLO **JUSTICE OF APPEAL**

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

## CORAM: HON. C. M. KATO, JA. HON. G. M. OKELLO, JA. HON. A. E. MPAGI-BAHIGEINE, JA.

## **CIVIL APPEAL NO.27 OF 2000**

### **BETWEEN**

#### TITUS KIDEGA LAK :::::::::::::::::::::::::::::::::: APPELLANT

### **AND**

#### NON-PERFORMING ASSETS} :::::::::::::::::: **RESPONDENT RECOVERY TRUST** $\mathcal{L}$

(Appeal from the ruling of the High Court (Malinga J (RIP) dated 24/5/98 in High Court Misc. Application No.899-906 of 1998).

### **JUDGMENT OF A. E. MPAGI-BAHIGEINE, JA.**

I agree with the judgement of C. M. Kato, JA. I have nothing more to add.

14<sup>th</sup> day of Mary 2001. Dated this. A. E. MPAGL-BAHIGEINE **JUSTICE OF APPEAL.**