Mukaaku v Ssemujju (Taxation Appeal 17 of 2022) [2023] UGHC 376 (12 June 2023)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA TAXATION APPEAL NO.17 OF 2022 (ARISING FROM TAXATION APPLICATION NO.84 OF 2022)**

**JOHN MUKAAKU:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT VERSUS**

### **RASHID SSEMUJJU BYANSI::::::::::::::::::::::::::::::::::::::::::::RESPONDENT.**

# *Before; Hon. Justice Victoria Nakintu Nkwanga Katamba*

#### **RULING.**

This is a taxation appeal brought under Section 62(1) of the Advocates Act and Rule 3(1) and Rule 3(2) of the Advocates (Taxation of costs) (Appeals and References) Regulations SI 267- 5 where the Appellant seeks the followings orders that;

1. The taxation award of Ugx.10,860,000/= granted by the Learned Deputy Registrar on 16/11/2022 in Taxation Application No.84 of 2022 be varied or set aside for being unfair, manifestly so high, harsh, excessive and exorbitant.

2. The bill of costs be re-taxed by this Court on items 1,3,4,5,6,7,13,14,15,16,19,20,21,22,23,24,25,26,27,28,30,31,33,34,39,40,41,54,55,56,57,58,6 4,65,66,67,68,69,70,73,76,78,79,80,81,82 and 83 and the awards therein be set aside.

3. The costs of the Application be provided for.

In support of the Appeal, an affidavit was deponed by the Applicant where in he states as follows that;

1. The Respondent was awarded Shs. 10,860,000/= as costs which is manifestly high and excessive.

2. An award of Shs.5,000,000/= as instruction fees is erroneous and baseless and that items 1,3,4,5,6,7,13,14,15,16,19,20,21,22,23,24,25,26,27,28,30,31,33,34,39,40,41,54,55,56,57,58,6 4,65,66,67,68,69,70,73,76,78,79,80,81,82 and 83 were erroneously awarded and excessive, having not been given due consideration by the Learned Deputy Registrar.

3. Counsel for Applicant was denied audience in the taxation application and the application was never opposed.


4. Items that provide for Appearances of the Clerk to the Commissioner of Oaths, to the Bank and to the opposite lawyer's office are not catered for in the current taxation rules hence were erroneously awarded.

5. This Court has power subject items stated in Paragraph 8 and above to fresh and thorough scrutiny and to come up with its own findings and set aside all of them.

An affidavit in reply was deponed by the Respondent where he stated as follows that;

1. The chamber summons and affidavit in support were served out of time.

2. The Appeal was filed on the 24th of November 2022 and the same was fixed on the 30th of March 2023 but the Application was never served on the Respondent.

3. On 17th April 2023 at 12.19pm, the Applicant's lawyers served the Chamber summons, submissions and a copy of a Court order extracted on 30th March 2023 directing the Applicant to serve the Chamber summons and submissions by Tuesday 11th April 2023 which order was not complied with.'

4. The orders of Court were not complied with.

5. The award of Shs5,000,000/= by the Learned Deputy Registrar was justified.

6. The award of Shs. 10,860,000/= was reasonable and justified.

7. The costs were taxed inter parties and the Appellant is estopped from stating that the Learned Deputy Registrar did not consider the Court record.

Both Parties filed written submissions which I have carefully considered. I shall not reproduce the submissions but I shall refer to them when the need arises during the determination of this Appeal.

Upon perusal of the affidavit in reply and the Respondent's submissions, it is my observation that the Respondent raised a preliminary point of law which was to the effect that the Appellant's appeal was served out of time.

## **Resolution of Preliminary point of law.**

### **1. Whether the Appeal was served out of time.**

It was submitted for the Respondent that the Taxation Appeal was filed on 24th November 2022 and it was endorsed by the Deputy Registrar on 12th February 2023. The Appeal was set down for hearing on 30th March 2023 at 10 O'clock in the morning. However, the Respondent was never served. It was further submitted for the Respondent that on 30th March 2023, the Court granted the Applicant's lawyers an extension of time within to serve the chamber summons


and submissions on the Respondent. According the Orders, service was to be effected by 11th April 2023 however, the Applicant's effected service on the Respondent on 17th April 2023 in violation of Court orders and there has been application for leave to extend time. Counsel prayed that the Appeal be dismissed. Counsel relied on the case of Rashid Ssemujju Byansi versus John Mukaaku, HCTA. No.2 0of 2021 to support his submission.

In response to the above submission, Counsel submitted that when Counsel's clerk went to Court to file the written submissions, he was told by the Court officials that the Court file for the Taxation Appeal No.17 of 2022 had been misplaced. That they needed some time to trace it and that they could not receive the submissions without first tracing the file. Counsel further submitted that the Counsel's clerk left copies of the submissions with one of the Court clerks to be filed upon the retrieval of the file. He further submitted that the file was retrieved on 13/04/2023 and the submissions were filed. The clerk then travelled to Masaka on 17/04/2023 and served the Respondent's counsel. Counsel attributed the mistake to Court staff and the same should not affect the Applicant.

Counsel relied on **Julius Ojara Otto versus Benson Okwera, HCMA. No.023 of 2017 and Hikima Kyamanywa versus Chris Sajjabi, CACA. No.1 of 2006** to support his submissions.

The Appellant conceded that they served the Appeal out of time but the delay in serving the Appeal was attributed to mistakes of Court staff.

I would like to first note that when Counsel appeared before me on 30th March 2023, he stated that he had not served the chamber summons on the Respondent because he needed the parent file for reference but the same had been archived by the Court staff. In the interest of justice, I granted the Appellant an extension of time within which to serve the chamber summons. Among the orders this Court issued on 30th March 2023, the Appellant was to serve the chamber summons and written submissions on the Respondent by 11th April 2023.

However, the Appellant effect service on 17th April 2023, which is beyond the time that was granted by Court. Counsel again attributed the delay to misplacement of the Court file by Court staff.

In *Jingo Livingstone Mukasa versus Rwaguma COACA No.190 of 2015***,** it was held that Courts approach the non-adherence to the directions they give parties on a case by case basis


with appropriate regard for the circumstances of each case. It was further observed that Court may for sufficient reason extend the time limited by any decision of the Court but what would amount to sufficient reason falls within Court's unfettered discretion.

In *Orient Bank Limited versus Avi Enterprises Limited HCCA. No.2 of 2013*, it was observed *interalia* that where chamber summons have not been served in the time stipulated, the Application ought to be dismissed. It was further observed that an Applicant may be apply for an extension of time and Court may exercise its discretion to extend the time where sufficient reason is shown.

I am disinclined to allow the Appellant's prayer that the Court should exercise its discretion because firstly, Counsel's submissions apart from amounting to testimony at the bar, are also hearsay and Court cannot rely on either. (See; *Mayanja Joshua Kajubi versus Wasswa Amon, HCMA No.44 of 2016* and *Ssembtya and Another versus Eco Petrol Uganda Ltd, HCMA. No.199 of 2015* for the proposition that Court cannot rely on evidence from the bar)

It is my opinion that since time within which to serve the chamber summons had elapsed, Counsel should have applied for extension of time, surrendered representation and sworn an affidavit in support or in the alternative, Counsel's Clerk would have deponed an affidavit establishing the veracity of the assertions by Counsel but none of the preceding propositions were considered by Counsel.

Even after there was noncompliance with the orders of Court, Counsel never sought Court's permission to serve Court process out of time and instead opted to serve expired chamber summons. This was never raised by Counsel for Appellant in his submissions in support despite being well aware of the circumstances. This issue was only raised in reply after the issue had been raised by Counsel for the Respondent. This in my view, alludes to bad faith on the part of Counsel for the Appellant.

Secondly, I also note that the assertions by Counsel highlight gross incompetence attributable to Court staff and it was therefore Counsel's duty to provide sufficient evidence to support such assertions in light of the fact that Court staff are not present to defend themselves. Counsel also submitted that no injustice shall be occasioned to the Respondent however it is my view that unjustified dilatory conduct on the part of the Appellants occasions an injustice


on the Respondent because it delays their enjoyment of the fruits of litigation. And the manner in which the Appeal was prosecuted amounts to dilatory conduct which operates to the detriment of the Respondent. Further, in relation to the appeal, the bill of costs attached to the Affidavit in support is insufficient to enable Court determine the Appeal due to its incompleteness, something that should have come to the knowledge of the Appellant's Counsel considering that the period between filing of the Application and the determination of Application to be almost 5 months.

For the above reasons, it is my finding that the Application is incompetent for non-service of Court process within the stipulated time and that the Appellant has also failed to provide cogent evidence to warrant the Court's exercise of discretion to entertain the Application out of time. The Application is therefore dismissed with costs to the Respondent.

I so order.

Dated and delivered electronically at Masaka this 12th day of June 2023.

**Victoria Nakintu Nkwanga Katamba.**

**Judge.**