Mbulamuko v Stabex International Limited (Civil Appeal 19 of 2024) [2024] UGHC 1073 (25 November 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

# MISCELLANEOUS CIVIL APPEAL NO. 019 OF 2024

## (ARISING FROM TAXATION IN BUDAKA CHIEF MAGISTRATE COURT CIVIL SUIT NO. 23 OF 2022)

## MBULAMUKO KENETH ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

### STABEX INTERNATIONAL LIMITED ::::::::::::::::::::::::::::::::::::

### **BEFORE: JUSTICE LUBEGA FAROUQ**

#### **RULING**

### 1. Background:

- 2. This Appeal arises from the taxation ruling of the Chief Magistrate Court of Budaka. In that ruling, the Respondent's bill of costs was allowed at Ugx: 5,791, 618/= (five million seven hundred nighty one thousand six hundred and eighteen). The Appellant was dissatisfied with that ruling hence this appeal. - 3. This Appeal was brought by way of Chamber Summons under section 98 of the Civil Procedure Act Cap 282, section 62(1) of the Advocates Act Cap 267, Rule 3 of the Advocates (Taxation of costs) Appeal and Reference Regulations SI.267-5, Regulations 10(2) and 13A of the Advocates (Remuneration and Taxation of Costs) (Amended) Regulations 2018 and order 5 of the Civil Procedure Rules SI.71-1 for orders that- - (a) That extension of time be granted within which to appeal the taxation decision in Budaka Chief Magistrate's Court Civil Suit No.23 of 2022 - (b) The taxation decision in Budaka Chief Magistrates' Court Civil Suit No. 23 of 2022 be set aside on grounds that- - The Trial magistrate erred in law when she heard, taxed and $(i)$ determined Advocates Bill of Costs without according the Appellant a fair hearing; - The trial magistrate erred in law when she failed to follow the $(ii)$ legal procedure governing taxation of Advocates' Bill of Costs; - The trial magistrate erred in law when she awarded exorbitant $(iii)$ bill; - (c) Costs of the appeal be provided for.

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- 4. The Appeal is supported by the affidavit sworn by Mbulamuko Kenneth where he averred that- - (a) The Respondent filed Civil Suit No. 23 of 2022 against the appellant in Budaka Chief Magistrate's Court Civil Suit No. 23 of 2022 which was decided in the Respondents favor; - (b) The Respondent then filed her bill of costs but deliberately refused to serve the same upon the appellant and as such was taxed ex-parte; - (c) The taxing master awarded an excessively high sum of costs which was unreasonable and without participation of the Appellant; - (d) The Appellant only learned of the taxation of the bill of costs through his advocates who were served with a copy of a Notice to Show Cause and a copy of untaxed bill of costs on the same day being 29th day of February, 2024; - (e) The Appellant was condemned unheard in taxation proceedings contrary to his constitutional right to a fair hearing and extraterrestrial to the law governing taxation of bill of costs; - (f) That the Applicant will be highly prejudiced if the instant application is not granted. - 5. This Appeal was opposed by Otim Christopher the legal officer of the Respondent Company wherein he averred that- - (a) He shall raise a preliminary objection that; - The Application is defective as the days expired minus the appellant $(i)$ serving him nor serving the same to their lawyers; - The application was not served onto him neither did the Appellant $(ii)$ serve the same to their lawyers; - The application has no merit, bad in law, a blatant abuse of court (iii) process and he shall pray that the application be struck off and or dismissed with costs. - (b) In the alternative the Respondent averred that the Applicant was duly served with the taxation hearing notice on the 20th day of October, 2023 and on the 9th day of January, 2024 but the same was ignored by the Applicant; - (c) After serving the Appellant with the bill of costs together with the taxation hearing notices, he suggested to enter into consent in order to pay the same but he later declined; - (d) That a taxing master has the discretion to preside over a taxation hearing in the absence of one or both parties provided there is sufficient evidence that the said party adamantly refused to attend; - (e) That the affidavit in support should be denied since the Applicant does not specify which item of the bill of costs was a warded excessively;

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- (f) That the Applicant has not demonstrated to this court how he will be highly prejudiced if the instant application is not granted; - (g) That this Application does not in any way meet the condition precedent for the grant of an order for extension of time within which to appeal against the taxation. - 6. In the rejoinder the Appellant contended that he has never been served by the Respondent at all and does not know a person called Aramazani Muyindi yet they were much aware of his address.

## 7. Legal representation

- 8. E. Eelijah & Co. Advocates represented the Appellant whereas the Respondent was represented Kob Advocates & solicitors. - 9. This Appeal proceeded by way of written submissions and both parties complied. - Counsel for the Appellant framed four issues for this court's 10. resolution which include- - (a) Whether extension of time within which to appeal should be granted. - (b) Whether the appellant was denied a fair trial - (c) Whether the taxing master flouted the legal procedure governing taxation of advocate's bill of costs - (d) What remedies are available to the parties? - However, before I delve into the merit of this appeal, I will consider 11. the preliminary objections raised by counsel for the Respondent first.

#### Preliminary objection. 12.

- The 1st Preliminary Objection: That the Application/Appeal is 13. defective as the summons expired minus the Appellant serving the same onto the Respondent nor his lawyers. - Counsel for the Respondent submitted that Chamber Summons 14. were neither served upon the Respondent nor the Respondent's lawyer contrary to Order 5 rule 1 of the Civil Procedure Rules which requires service to be effected within 21 days except that time may be extended by showing sufficient reasons. - He argued that the Chamber summons were filed in court on 7th of 15. March, 2024 and the same were endorsed by the Registrar on the 6th of March, 2024 but were never served on the Respondent nor upon his lawyers. - Counsel contended that his lawyers only came to know about the 16. case when they cross checked with the court and it is when they discovered that the Appellant had filed an application for extension of time and the summons were signed on the 6th of March, 2024.

- Counsel for the Applicant on the other hand submitted that the 17. Respondent was dully served with the summons of the instant application as stated in paragraph 5 of the Appellant's affidavit in rejoinder on 2 instances being the 8th of March, 2024 upon Kob Advocates and on 11th of March, 2024 at the Respondent's business branch situated at Budaka town as can be deduced from the affidavit of service. The service was effected on the branch manager identified as Mr. Kennedy Kipjorir Chesire on the 11th of March, 2024. - He added that Mr. Kennedy Kipjorir was handed the summons and 18. he perused through the copies but refused to acknowledge receipt and summons were nonetheless left with him.

#### **Determination of court** 19.

Order 49 rule 2 of the Civil Procedure Rules provides that- $20.$

- "All orders, notices and documents required by the Act to be given to or served on any person shall be served in the manner provided for the service of summons." - Order 5 rule 2 of the Civil Procedure Rule provides that-21.

"Service of summons issued under sub-rule (1) of the rule shall be effected within twenty one days from the date of issue; except that the time may be extended on application to court, made within fifteen days after the expiration of the twenty one days, showing sufficient reasons for the extension."

- According to the court record, there is an affidavit of service sworn 22. by Wamimbi Moriss a court process server attached to E-Elijah & Co. Advocates which indicates that the Respondent's counsel was served with the Chamber Summons on 8th of March, 2024. The same summons were further served to the Respondent's branch manager at Budaka called Mr. Kennedy Kipjorir Chesire on 11th of March, 2024. It is however indicated that the receptionist and the branch manager declaimed to endorse on the summons. - Order 5 rule 16 of the Civil Procedure Rules provides that service of 23. summons shall be proved by tendering in court an affidavit of service sworn by the serving officer which Wamimbi Moriss did. However, since the recipients refused to endorse on the summons, with the introduction of mobile phones, Wamimbi Moriss as an experienced process server, ought to have gone an extra mile to at least taken pictures in effecting the said service to buttress his allegations but he did not. - From the court record, the Respondent filed its affidavit in reply on 24. 30th of August, 2024 way beyond the time line within which to file a reply and with the allegations of none service, to this court, he cannot be faulted.

- Therefore, since the Applicant did not attach any proof of service on 25. the affidavit of service he deponed, I am not convinced that the Respondent was effectively served. - However, since none of the parties were prejudiced by that omission, $26.$ in the interest of justice the same is ignored by this court. - 2nd Preliminary objection: **That the Application is brought under** 27. the wrong law. - Counsel for the Respondent submitted that the Appellant brought 28. this application under the wrong procedure of instituting the suit or application since it was brought as omnibus application with different prayers/orders which were being sought by the Appellant. The law provides that where mode is not provided for then the right procedure is by Notice of Motion. He cited Order 52 rule 1 of the Civil Procedure Rules to support his submissions. - I have studied the court record and noted that the matter before 29. court is a Misc. Civil Appeal which makes it to follow under the ambit of Rule 3 (1) of the Advocates (Taxation of costs) Appeal and Reference Regulations. Although I note that in the same application the Appellant further prayed for extension of time, in my view, the major subject matter is considered for the procedure in that regard. - Rule 3 (1) of the Advocates (Taxation of costs) (Appeal and Reference) 30. Regulations provides that-

"Every appeal shall be by way of summons in chambers" supported by affidavit, which shall set forth in paragraphs numbered consecutively particulars in regard to which the taxing officer whose decision or order is the subject of the appeal is alleged to have erred."

- Therefore, the matter before court being an appeal from the taxation 31. ruling, the Appellant brought it under the proper provision of the law. - This preliminary objection is accordingly overruled. 32. - I will now handle the instant application on its merit as below. 33. - Analysis of court 34. - Counsel for the Applicant argued issues No. 1 and 2 together. 35. However, following counsel's arguments, I will answer issues 1, 2, and 3 together. - Issue No.1: Whether extension of time within which to appeal 36. should be granted?

Issue No.2: Whether the Appellant was denied a fair trial? 37.

Issue No.3: Whether the taxing master flouted the legal 38. procedure governing taxation of advocate's bill of costs.

- Counsel for the Appellant submitted that this taxation appeal was 39. filed on the 7th of March, 2024 however according to annexure "A" of the Respondent's affidavit in reply which is a copy of the taxation hearing notice, it was issued on 12th of October 2023 and the Advocate's bill was taxed on 24th of October, 2023. - He cited section 62 (1) of the Advocates Act and argued that the 40. instant appeal was filed on 7th of March, 2024 yet the bill was taxed on 24th of October, 2023 which gives rise to 5 months outside the statutory period appeal. - He however, contended that the default was caused by the 41. Respondent's failure to serve him with the taxation hearing notice as per paragraph 4 of the affidavit in support and paragraph 7 of the rejoinder. He argued that the Respondents were at all material time aware of his address for purposes of service being Bubere Ward in Kibuku Town Council as indicated in the affidavit in support and his lawyers of E. Elijah and Co. Advocates as indicated at page 2 of the court ruling in an application for leave to appear and defend. - He submitted that the person referred to as Aramanzani Muyinda $42.$ referred to in annexure "A" to the affidavit in reply is unknown person. Counsel cited Articles 28, 42 and 44 of the Constitution which grantees a right to fair hearing. He also cited the case of Walakra Nakalanzi Taxation Appeal No.2 of 2019, where it was held that "before proceeding with the taxation hearing, the taxing master should have required the Respondent to duly effect service on the Appellant and file proof of service". - Counsel for the Respondent on the other hand submitted that as per 43. paragraphs 6 and 7 of the affidavit in reply, the Applicant/Appellant was dully served with the taxation hearing notices and he ignored to receive the same and later, serving him with the bill of costs together with the taxation hearing notices and he suggested to enter into consent in order to pay the same but later declined. - He contended that the draft copy of the consent was signed on by 44. the Appellant before he declined it to be endorsed and therefore he cannot again bring the allegations that he was never served with the taxation and hearing notices - Counsel submitted that the affidavit of service for taxation hearing 45. notices which were attached on the Respondents affidavit in reply under paragraph 6 are on court record for court emphasis to prove that the Appellant was dully served with the bill and taxation hearing notices. He added that the taxation hearing notices was signed by Aramazani Muyinda who was an agent of the Appellant and he cannot now dispute that he does

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not know him. He cited Mulindwa George William V. Kisubika William SCCA 12 of 2014 where the Supreme Court held that sufficient cause was not proved and they upheld the decision of Court of Appeal and dismissed the appeal with costs against the appellant.

#### Determination of court 46.

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Regulation 9 of the Advocates (Remuneration & Taxation of Costs) 47. Regulations provides that-

> "When a bill of costs has been lodged for taxation, the registrar shall, upon payment of the prescribed fee, issue to the party *lodging the bill a notice of the date and time (being not less than five days after the issue of the notice, unless a shorter time is specially allowed by the registrar) fixed for taxation of the bill* of costs and shall also issue a copy of the notice, accompanied by a copy of the bill, to each advocate and other person whose name is endorsed on the bill as entitled to receive notice of the *taxation of the bill of costs.*"

Regulation $10(2)$ of the same Regulation provides that-48.

> "Due notice of the date fixed for the taxation shall be given to *both parties, and both shall be entitled to attend and be heard.*" Regulation 13A of the same Regulations provides that-

- 49. "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 a bill of costs." - The implication of the above provisions of the law is that taxation 50. hearing, right from the point of filing the bill of costs, should be done inter parties. - However, in the instant case, the Appellant averred under paragraph 51. 4 of the affidavit in support that they were only served with a copy of a notice to show cause and a copy of untaxed bill of costs on the 29th of February, 2024. - On the other hand, the Respondent averred under paragraphs 6 and 52. 7 that the Appellant was dully served with the taxation hearing notice on the 20th of October, 2023 and on the 9th of January, 2024 but the same was ignored by the Appellant. It added that after serving the Appellant with the bill of costs together with the taxation hearing notices, the Appellant suggested to enter into a consent in order to pay the same but later declined.

- I have perused the annexures attached to the affidavit in reply. The 53. Respondent attached a taxation hearing notice dated 12th of October, 2023. It shows it was received by Aramazani Muyinda but the date of receipt is not indicated. - Although the Respondent alleged that a one Aramazani Muyinda 54. was the Appellant's agent, the Appellant denied knowledge of him.

Order 5 rule 13 of the Civil Procedure Rules provides that-55.

> "Where in any suit the defendant cannot be found, service may be made on an agent of the defendant empowered to accept service or on any adult member of the family of the defendant *who is residing with him or her.*"

Order 5 rule 16 of the Civil Procedure Rules provides that-56.

> "The serving officer shall, in all cases in which the summons has been served under rule 14 of this Order, make or annex or cause to be annexed the original summons an affidavit of service stating the time when and the manner in which the summons was served, and the name and address the person, if any, identifying the person served and witnessing the *delivery or tender of the summons."*

- In the instant case, the Respondent did not adduce in court an 57. affidavit of service to prove that service of the taxation hearing notices was effected on the Appellant. - Secondly, Order 3 rule 2 of the Civil Procedure Rules describes who 58. a recognized agent is. This therefore means that if Aramazani Muyinda was to qualify as one, he had to fall under that provision of the law but the Respondent did not indicate if he did. - I have also seen the alleged consent order but it is not dated, not 59. signed by the Respondent or by any of the lawyers. For that reason, it is not an authentic document which this court can rely on. - In the view of the above, the Respondent failed to prove that the 60. Appellant was duly served with the taxation hearing notices, hence, the same was heard and determined without his participation contrary to the provisions of the law above cited. - Issues No.1,2 and 3 are answered in the affirmative 61.

Issue No.4: What remedies are available to the parties? 62.

- Section 96 of the Civil Procedure Act Cap 282 empowers this court 63. to exercise its discretion to enlarge period even though the period originally fixed or granted may have expired. - In the case of Molly Kyalikunda Turinawe and 4 others V. 64. Engineer Ephraim Turinawe & another Supreme Court Civil

Application No. 27 of 2010 the Supreme Court held that "the Applicant for extension of time must prove that he or she was prevented by a sufficient cause from taking out a particular act in time".

- In this case, the Appellant stated that he was not served with the 65. taxation hearing notices which prevented him from filing this appeal in time. To this court, that is a sufficient cause which grantees extension of time and it is accordingly extended. - Therefore, having found that the Appellant was not served with the 66. taxation hearing and the same was heard without his participation, the trial court's taxation findings in Civil Suit No.23 of 2022 are accordingly set aside. - The taxation hearing shall be heard afresh inter parties. 67. - Costs of this appeal are awarded to the Appellant. 68.

I so order.

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Ruling delivered via the emails of the Advocates of the parties on $25th$ day of November, 2024