Mugisha v Nsabiyumva (Civil Appeal 8 of 2024) [2025] UGHC 261 (29 April 2025)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KABALE

## CIVIL APPEAL NO. 0008 OF 2024

# (Arising from Civil Suit No. 0006 Of 2010)

**MUGISHA BERNARD=====================APPELLANT**

#### **VERSUS**

#### NSABIYUMVA ROBERT=====================RESPONDENT

#### BEFORE: HON. JUSTICE SSEMOGERERE KAROLI LWANGA

#### JUDGMENT

This is an appeal against the entire decision from a ruling arising out of a 15 preliminary point of law raised by the Judgment Debtor, now the Appellant before the taxation officer, His Worship the learned Chief Magistrate of Kisoro, His Worship Kenneth Komakech dated January 25, 2024. The preliminary objection was to the effect that the Bill of Costs filed by the Judgment Creditor now the Appellant was defective in that it offended Section 77(1) of the Advocates Act, Cap 20 295 formerly Cap 267 and Regulations 47(1) and 48 of the Advocates (Remuneration and Taxation of Costs) Regulations S. I.267-4 (as "amended") (the "Regulations").

There is also a preliminary objection by the Respondent to the effect that the appeal is incompetent due to absence of leave under Order 44 Rule 1(2) of the 25 Civil Procedure Rules S.1. 71-1.

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<sup>&</sup>lt;sup>1</sup> The Appellant ignored the fact that the regulations initially promulgated in 1982 had been amended in 2018.

#### **Brief Facts.** $\mathsf{S}$

In the underlying suit, Mugisha Bernard, the Appellant was the unsuccessful party in Civil Suit No. 0006 of 2010; while Nsabiyumva Robert was the successful party. Appellant during taxation raised a preliminary objection to the effect that the bill of costs offended Regulation $47(1)$ and 48 of the Regulations. It is important to note, that the cited regulations were repealed and replaced by Regulation 4, of

the Advocates (Remuneration and Taxation of Costs) Regulations, 2018.

In respect of the form of the bill, under regulation 4, the Appellant complained the bill form of the bill had six rather than five columns, the offending extra column being the addition of a column with an item number. The second objection was to the effect that the notice of taxation had no address of the person on whom it was served.

Appellant framed one ground of appeal stating that the learned Trial Magistrate erred in law and fact when he ruled that failure to prepare a bill of costs as per the rules was not fatal.

#### Representation. 20

At the hearing of the appeal, Appellant was represented by M/S Bikangiso & Co. Advocates, while the Respondent was represented by M/S Skaar Advocates.

### **Discussion and Analysis.**

I have read submissions of both parties. I will dispose of the preliminary objection first before turning to the appeal. I reproduce the objection here for ease of 25 reference.

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"That the appeal is incompetent due to absence of leave under Order 44 Rule 1(2) of the Civil Procedure Rules S.1. 71-1. The objection as stated in the submission is that the effect of absence of leave is an illegality of the proceedings".

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The Respondent cited a number of authorities, which unfortunately did not address the alleged absence of leave, in the instant case.

It is long settled law, that the right of appeal is a creation of statute, as courts including the High Court don't have inherent appellate jurisdiction (emphasis mine). In Baku Raphael Obudra & Anor v Attorney General, Supreme Court Constitutional Appeal No. 1 of 2005, Odoki Benjamin C. J., as he then was held:

"It is trite law that there is no such thing as inherent appellate jurisdiction. 15 Appellate jurisdiction must be specifically created by law. It cannot be inferred or implied."

In the instant case, the right of appeal is provided for in the Advocates Act, Cap $295$ , as:

Section 68(1) of the Advocates Act provides for appeals and references. It states: $20$ "A person affected by an order or a decision of a taxation officer made under the Act or any regulations may appeal within thirty days to a Judge of the High Court." (Emphasis mine).

This section is the specific law governing the appeal in the instant case, and its provisions are self-explanatory. I find no reason to entertain this argument for $25$ two reasons. First, a provision in subsidiary legislation cannot oust a provision in

a principal Act. Second, where any ambiguity exists between the application of $\mathsf{S}$ more than one law, the specific law prevails. The rule in **David Ssejjaaka Nalima** v Rebecca Musoke Civil Appeal No. 12 of 1985, [1986 UGSC 16, decided **November 19, 1986**, is simple, as far as it describes the duty of the trial Judge,

"What was called for was the application of the relevant provisions of the law to the issues before him or her [I supply the addition].

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In the instant case, the Advocates Act, and regulations made thereunder are the specific law, and the Civil Procedure Act or Civil Procedure Rules (supra) are the general law. The rationale behind this rule is legislative efficiency. The proceedings before the learned Chief Magistrate were to bring to a close a suit filed as far back as 2010. My finding also disposes of the assertion of illegality in the Respondent's submission. I will accordingly dismiss the preliminary objection with no order as to costs.

I will focus my judgment on the legislative intent behind expeditious taxation of bills of costs filed by Advocates at the end of litigation or completion of professional work done by an Advocate.

Time is of the essence to conclude taxation matters. Section 63(1) of the Advocates Act provides as follows:

"Subject to this Act, no suit shall be brought to recover any costs due to an advocate until one month after a bill of costs has been delivered in accordance with the requirements of this section......"

Further, Section 63(2) of the Act states the requirements for delivery of a bill of costs. These are:

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- The bill must be signed by an advocate ... or be enclosed in or $(a)$ accompanied by a letter which is so signed and refers to the bill; and - The bill must be delivered to the party to be charged with it, either $(b)$ personally or by being sent to him or her by registered post to, or left for him or her at, his or her place of business, dwelling house or last known place of abode..."

Section $64(1)$ of the Act (ibid) states:

"Within one month of the delivery of an advocate's bill, the party chargeable with a bill, may by notice in writing, a copy of which shall be served by the person giving the notice on the advocate, require the taxation officer to fix a date for the taxation of the bill."

The rest of the provisions of this section only provide a sequence of events leading to the taxation of the bill. Section 64(5) allows court on application of either party to tax the bill. I find no need to reproduce these provisions for the purposes of this appeal.

I find that this appeal does not raise any discernible issues of fact and law to 20 resolve. The provisions of the principal Act are self-explanatory.

The purpose of subsidiary legislation is to give effect to the principal act. I find this passage in the Legislative Council in Brief No. 6 informative:

"Subsidiary legislation" means any proclamation, rule, regulation, order, resolution, notice, rule of court, bylaw or other instrument made under or by virtue of any ordinance and having legislative effect. It is the detailed rules and regulations, usually made by the Government, to provide for

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technical or procedural details necessary for the implementation of an ordinance"<sup>2</sup>.

The legislative purpose of the Advocates (Remuneration and Taxation of Costs) (Amendment) Regulations, 2018 is provided in the powers of the Law Council. the regulatory body responsible for the legal profession or the practice of law, in Uganda, to make regulations under Section 83(e) of the Act.

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I find no reason to interfere with the exercise of discretion by the taxation officer to disallow the preliminary objection. The only reason to disturb the discretion of the taxation officer is where it is carried out, outside the parameters of the law based on the facts before him or her. See the decision of Adonyo J., as he then was

- in Otim Richard v Alupo Bernadette Christine, Taxation Appeal No. 0003 of 15 2023, arising from Taxation Application No. 0023 of 2023, where he stated the basis for interfering with the discretion exercised by the taxation officer, as follows: - "Overall, I find this appeal as misconceived as it serves no legal purpose other than presenting an argument in futility with the hope of postponing the inevitable."

He concluded.

"I would find no reason to interfere with the discretion exercised as a whole in the impugned matter by the taxing master as that exercise of discretion

<sup>&</sup>lt;sup>2</sup> The Legislative Council Commission is educational in nature. Extracted April 25, 2025, https://www.legco.gov.hk/education/files/pdf/en/Factsheet6.pdf.

was carried out within the parameters of the law and based on the facts presented before her."

The facts of this case are similar, the appeal only being to delay the inevitable, recovery of costs awarded by court in a matter concluded. These are the kind of appeals filed to delay the inevitable.

**Conclusion:** 10

- 1. The preliminary objection fails with no order as to costs. - 2. The entire appeal fails. Costs are awarded to the Respondent in this Court and in the Chief Magistrate's Court. - 3. The matter is returned to the Taxation Officer to accordingly tax the bill of costs without further delay.

## I SO ORDER.

DATED AT KABALE THIS DAY OF APRIL 2025.

Ansoenegage

SSEMOGERERE, KAROLI LWANGA

JUDGE.

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