Masiko v Magara and 4 Others (Civil Appeal 39 of 2024) [2025] UGHC 87 (31 January 2025)

Full Case Text

### THE REPUBLIC OF UGANDA

$\mathcal{L}$

#### IN THE HIGH COURT OF UGANDA AT HOIMA

CIVIL APPEAL NO. 39 OF 2024 (*Arising from Misc. Application No.024 of 2021*) (*Arising from Misc. Application No. 21 of 2020*) All Arising from C. S. No. 0035 of 2012)

MASIKO BENON :::::::::::::: **.....................................**

#### **VERSUS**

1. MAGARA FRED 2. SSEMPIJA TADEO 3. SSENKAYI GODFREY **RESPONDENTS** 4. SSEKYANZI ZAKARIA 5. MUSISI JIMMY

Before: Hon. Justice Byaruhanga Jesse Rugyema

# JUDGMENT

- $[1]$ This Appeal is arising from a Ruling of H/Worship George Mfitundinda the Chief Magistrate's Court of Hoima dated 12th July. 2024 where he overruled and dismissed the preliminary objections raised in **Misc. Application No. 24 of 2021** (Arising from Misc. Application No. 21 of 2020, all arising from Civil Suit No. 35 of 2012) - $[2]$ The brief facts of the Appeal are that in the court below, the Respondents filed a bill of costs in **Miscellaneous Application No. 24 of 2021** and during the taxation of the bill of costs, the Appellant/Applicant raised preliminary objections which were

dismissed by the trial Ag. Chief Magistrate (then) who accordingly allowed the taxation of bill of costs to proceed.

- $[3]$ The Applicant in the said Application, now the Appellant was dissatisfied with the said Ruling and lodged the present Appeal on the following grounds as enumerated in the memorandum of appeal. - The learned trial Aq. Chief Magistrate erred in law and fact $1.$ when he found that there was no error in the Respondents' bill of costs in Misc. Application No.24 of 20-21 being filed by Smak and Co. Advocates whereas not thus arriving at a wrong decision. - The learned trial Aq. Chief Magistrate erred in law and fact 2. when he found that the issue of costs in Misc. Application *No.24 of 2021 was addressed by Civil Appeal No. 46 of 2023 whereas not thus arriving at a wrong decision.* - The learned trial Aq. Chief Magistrate erred in law and fact 3. when he allowed the taxation of a bill of costs in Misc. *Application No. 24 of 2021 thus arriving at a wrong decision.* - The learned trial Aq. Chief Magistrate erred in law and fact $4.$ when he found that the failure of Counsel for the Respondents to file a notice of instructions was a technicality whereas not thus arriving at a wrong decision.

# **Counsel legal representation**

The Appellant was represented by the firm of $M/s$ Mutalya & Co. $[4]$ **Advocates, Kampala** while the Respondents were represented by the firm of M/s Smak Advocates, Kampala. Submissions were filed by the respective lawyers for consideration in the determination of the Appeal.

# Preliminary point of law

## **Competence of the Appeal**

- In his submissions, Counsel for the Respondents raised a $[5]$ preliminary objection which this court ought to determine first as such points of law may have the effect of disposing of a suit. He submitted that the Appellant's memorandum of appeal was filed out of time and without any application for the extension of time within which to file the same. He submitted an appeal from the decision, order and judgment of the lower court to the high court is commenced by a memorandum of appeal as per $0.43 \text{ r.1(1)}$ & (2) CPR. That the ruling being appealed against was delivered on $12th$ July, 2024 and the memorandum of appeal was filed on $26th$ September, 2024, after a period of more than 2 months. That the Appellant did not seek leave of court to extend time within which to appeal and since the memorandum of appeal was filed out of time, there is no valid appeal. - Counsel for the Appellant submitted in reply $[6]$ that the Respondents' point of law is a technicality which ought to be overruled. That by the time the Appellant filed the memorandum of appeal on $26th$ September, 2024, they were waiting for the typed record from the lower court which they requested for on $16th$ July, 2024 after the ruling had been delivered on $12th$ July, **2024.** That a person who files a memorandum of appeal 8 days before the record of proceedings is certified cannot be said to have flouted any law. Relying on Section 79(2) of the CPA **Cap.282 (Revised edition, 2023),** he stated that the time taken by court in making a record of proceedings should be excluded in computing the period of limitation for filing appeals.

## **Determination of the Objection**

$[7]$ $0.43(1)$ CPR is to the effect that every appeal to the high court shall be preferred in the form of memorandum signed by the appellant or his advocate.

**Section 79(1)** CPA provides the time lines within which to file an $\mathbf{S}$ appeal. It provides thus:

"Except as otherwise specifically provided in any other" law, every appeal shall be entered -

- *a) within thirty days of the date of the decree or order of the* court; or - *b) within seven days of the date of the order of a registrar,* as the case may be, appealed against; but the appellate court may for good cause admit an appeal though the period of limitation prescribed by this section has elapsed.

**Section 79(2) CPA,** is to the effect that;

"In computing the period of limitation prescribed by this section, the time taken by the court or the registrar in making a copy of the decree or order appealed against and of the proceedings upon which it is founded shall be excluded."

In the instant case, as per the record, the Appellant filed the notice $[8]$ of appeal on $18th$ July, 2024. The memorandum of appeal was filed on 26th September, 2024 a period of more than 2 months after the ruling was delivered on $12^{th}$ July, 2024. The lower court record was certified on $10th$ October, 2024 upon a letter by Counsel for the Applicant dated 15th July, 2024 filed on 18th July, **2024** requesting for certified proceedings and ruling. Since the letter requesting for certified copy of the proceedings and ruling for appeal purposes was filed within the time of filing the appeal,

it follows that the Appellant having filed the memorandum of appeal on $26th$ September, 2024 albeit the record having been certified on 10th October, 2024, he was well within stipulated time if court is to exclude the time the lower court took in preparing the typed record. In the premises, I find that there was no need for the Appellant to seek leave of court to have the memorandum of appeal admitted on record.

$[9]$ The Appellant's appeal is in the premises found proper before this court and therefore, the preliminary objection is overruled with costs.

## **Merits of the Appeal**

# Duty of the 1st Appellate Court

- [10] It is trite that the duty of the $1^{st}$ Appellate court as the present one is to subject the evidence to a fresh and exhaustive scrutiny, weighing the conflicting evidence and drawing its own inferences and conclusion from it, Selle Vs Associated Motor Boat Co. [1968] EA 123. - [11] In this appeal, the Appellant raised 6 grounds of appeal which appear interconnected and the Appellant's counsel compressed them into three issues and this court shall consider the same as argued by counsel in his submissions. - Issue No.1. Whether the learned trial acting Chief Magistrate erred in law and fact when he found that there was no error in the Respondents' bill of costs in Misc. Application No.24 of 2021 being filed by Smak & Co. Advocates.

- [12] Counsel for the Appellant submitted that under **Regulation 2 of** the Advocates (Professional conduct) Regulations, no advocate shall act for any person unless he or she received instructions from his or her duly authorized agent. That it was wrong for the trial court to rule that it was a mere technicality for counsel not to file a notice of instruction from the Respondents. He submitted that Smak & Co. Advocates flouted the rules of procedure as provided for under the Advocates (Professional conduct) Regulations and therefore, the bill of costs in Misc. Application No.24 of 2021 should be expunded because the lawyers had no instructions from the Respondents to file the same. - [13] The Respondents' counsel on the other hand, submitted that a notice of instructions had been filed on 15th November 2021 clearly indicating that the Smak Advocates had received instructions from Kaggwa and Partners Co. Advocates to represent the respondents. That the Respondents did not object or challenge to representation by **Smak Advocates** and that is why the court allowed the bill of costs to be fixed for taxation. - [14] It is the duty to administer justice to all parties by making sure that all disputes are investigated and decided on merit, See **Banco** Arabe Espanol Vs Bank of Uganda [1999] 2 EA 22. In my view, in a situation where the Respondents had **Smak Advocates** as their counsel and the Respondents did not object or challenge the representation in court, in absence of any such objection to the Respondents' legal representation, I find that the trial court was justified in allowing the taxation of the bill of costs. Indeed, it was a mere technicality which could not and should not deter the Respondents from pursuing their rights since there would no injustice caused to the Appellant by the representation. The only

important point here however is that the counsel would not be entitled to any instruction fees and costs of his actions during the time or period prior to the instructions filed on record. This is a factor that has to be taken into consideration during taxation of the bill of costs. This issue is to this extent resolved in the negative.

- Issue No.2: Whether the learned trial Acting Chief Magistrate erred in law and fact when he found that the issue of costs in Misc. Application No.24 of 2021 was addressed by Civil Appeal No.46 of 2023. - [15] Counsel for the Appellant submitted that in **Civil Appeal No.46** of 2023, the judge found that the Magistrate was justified to dismiss the application with costs. That the acting Chief Magistrate erred when he stated in his ruling that the judge had addressed the issue of costs when there was no order in the Appeal as regards to costs in Misc. Application No.24 of 2021. Counsel for the Respondents submitted that the issue of costs was ground 6 in Civil Appeal No.46 of 2023 which did not succeed. That this meant that the H/W Opio's award of costs to the Respondents was not tempered with on appeal thus the Respondents were justified in filing their bill of costs because the status quo as ordered in the lower court was maintained. - The judgment in Civil Appeal No.46 of 2023 was delivered by $[16]$ this court and indeed, paragraph 30 on page 11 of the judgment is to the effect thus;

"As a result of the foregoing, I find that the trial Magistrate was justified to disallow the impugned application with costs..."

The above excerpt is very clear. The Appellant's counsel argument that there was no order as regards to costs in M. A No.24 of 2021 is not correct. The court indeed addressed the issue which had been presented as **ground 6** of the appeal by maintaining the lower court order on costs. The same was found devoid of merit and therefore, I find no absolutely fault in the Acting Chief Magistrate's finding that the issue of costs had been properly addressed in **C. A No.46 of 2023.** The trial Acting Chief Magistrate did not error at all in finding that issue of costs had been addressed in C. A No.46 of 2021.

# **Issue No.3: Whether the Appellant is entitled to the Remedies** sought.

[17] The Appellant is not entitled to any of the remedies sought in this appeal save for an order **vide HCCA No.46 of 2023** for execution of the Consent agreement/judgment in C. S No.35 of 2012. The Appeal is in the premises accordingly dismissed with no order as to costs since the Appeal is against the impugned bill of taxation that was filed by counsel without instructions at the time.

Dated at Hoima this $31^{st}$ day-of January, 2025.

**Byaruhanga Jesse Rugyema JUDGE**