Musoke v Agard and Others (MISCELLANEOUS CAUSE NO.O87 OF 2023) [2024] UGHC 1227 (8 July 2024)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## (LAND DIVISION)

## **MISCELLANEOUS CAUSE NO.087 OF 2023**

## (ARISING FROM CIVIL SUIT NO. 132 OF 2011 OF ENTEBBE CHIEF **MAGISTRATES COURT)**

## PADDY MUSOKE::::::::::::::::::::::::::::::::::::

#### **VERSUS**

## 1. JOHN AGARD

2. ANDREA DOERY::::::::::::::::::::::::::::::::::::

# 3. EVA WINFRED MAYANJA

### **BEFORE: HON LADY JUSTICE NABAKOOZA FLAVIA. K**

#### **RULING**

- 1. This is an appeal brought by Chamber Summons under Section 62 of the Advocates Act Cap 267; Rule 3 of the Advocates (Taxation of costs) (Appeals and References) Regulations SI 267-5 for orders that; - a. The taxing master's taxation ruling and certificate arising from Civil Suit No. 132 of 2011 be set-aside. $132$ - b. Costs of the Application be provided for. - 2. The grounds of the appeal are briefly that: - a. The award of 89,170,000/- as costs to the Defendant were excessive, unreasonable, oppressive and made in disregard of the subject matter. - b. The taxing master erred when he applied a wrong law, (the new Advocates Remuneration and Taxation of costs Amendment Regulations of 2018) yet the relevant law was the old law SI 267-4. - c. The taxing master erred when she awarded an amount as costs which was beyond her pecuniary jurisdiction that prohibits her from handling matters whose subject matter is in excess of Uqs 50,000,000/- - d. The decision is a nullity as at the time of hearing, the taxing master lacked both the territorial and pecuniary jurisdiction as it was vested in the Chief Magistrates Court of Makindye since the suit land is situate in Makindye Sabagabo.

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- e. The taxing master erred in law and fact when in disregard of the applicable principles/regulations awarded overstated costs for items vide numbers 2 to 20 yet some of them are not provided for in the Applicable law. - f. The taxing master erred in awardlng the Respondent Ugx 45,000,000/- as instruction fees yet he had taxed off more than three quarters of the Bill of costs and ilso without due regard to the true subject matter thus the amount is excessive and unconscionable. - 3. The grounds are supported by the affidavit in support deposed to by the Applicant. He made depositions similar to the above grounds and I shall not reproduce them. - 4. Only the 3'd Respondent opposed the appllcation by filing an affidavit in reply. She averred that they awarded costs of Ugx. 89,170,000/- as successful pafties in CS No. 132 of 2011. That the taxing master was alive to the law, the taxed costs are not excessive and a taxing master in the Magistrates Cout can award costs beyond his/her pecuniary jurisdiction. That this application is not for revision, thus challenging the jurisdiction of a cout. She prayed that the court maintains the award and dismisses the application with costs.

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- 5. In rejoinder, the Applicant claimed that the taxation ruling was delivered prematurely on 1910512022 because the matter is pending before the Supreme Court under Civil Application No. 35 of 2021. That on 2510512022, his lawyers wrote a letter requesting for proceedings which was within 6 days after delivery of the ruling. - 6. During hearing of the appeal, the 3'd Respondent was represented by Counsel Emmanuel Kakenga while the Applicant was represented by Counsel Najibu Mujuzi. The said Counsel Filed written submissions, and they shall be relied on in this ruling. - 7. Counsel for the Respondent raised preliminary objections which I have considered first. - B. Flrst, is that the application was filed out of time. That Section 62(1) of the Advocates ActCap 267 requires filing of the appeal to a Judge of the High Court within 30 days. That the decision of the taxing master was delivered on 1910512022, however, the appllcant uploaded the instant application onto ECCMIS on 2510512023 and was admitted thereto on 710612023. That the application was filed one year after the decision of the taxing officer was made and therefore filed out of time and in absence of an application to extend time. - 9. In reply, Counsel for the Applicant relied on the case of Eng. Yashwant Sidpra & Anor Vs Sam Ngudde Odaka & 4 Ors (HCCS No. 365 of 20O7) and

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Mukisa Biscuits Manufactures co. Ltd vs west fflo'6,r,.,ouaors Ltd [1969] EA 696 where it was pointed out that, a preliminary objection cannot be raised if facts have to be ascertained. He submitted that the Applicant wrote <sup>a</sup> letter to the trial Magistrate on 2510512022\_indicating that they were dissatisfied with the taxation ruling and intended to appeal to this court. That the Applicant further requested for a record of proceeding to enable the filing of the appeal. Counsel argued that once an intended appellant writes a letter, it has the effect of freezing time until the proceedings are provided. That the Applicant filed this appeal on realizing that the proceedings have been delayed and were incomplete due to the elevation of the Magistrate to the position of Assistant Registrar and his transfer. Secondly, that the file had been called by the Inspectorate of Courts for perusal and guidance.

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- lO. Counsel added that Section 62 (1) of the Advocates Act is not coached in mandatory terms; and that not filing within 30 days would not be fatal since the provision did not state that the Appeal SHALL be filed within 30 days. As such that the Legislators left room for the Judge's discretion. He relied on the case of Grace Namulondo & 3 Ors Vs Jone Serwanga & Ors (Misc. Cause No. 1 of 2019) and submitted that the preliminary objection cannot dispose of the entire suit and no prejudice will be occasioned to the Respondents unlike the Applicant. - 11. In rejoinder, it was submitted for the Respondent that the discretion to allow applications filed outside the 30 days must be exercised judiciously and not to condone a laissez-faire approach to litigants because of wordings of statutes. That although the Applicant wrote a letter requesting for the record of proceeding, he has filed the application without them. That the Applicant did not make an attempt to validate the pleadings or apply for enlargement of time within which to file the appeal. He cited the case of Boney. M. Katatumba Vs Waheed Karim (Civit Application No. 27 of 20O7) and submitted that counsel went to sleep after the letter was delivered to court since there is no follow up letter requesting for the record. That Counsel should have done physical follow up at the Registry as well to ensure that the record is completed within reasonable time. - 12. On the second objection, it was argued that Counsel for the Applicant requested for the record of proceedings but has filed the appeal without the said record. That an appeal flled without the record of the lower court is incompetent. - 13. I shall resolve the preliminary objections concurrently, since they are interrelated.

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- 14. Section 62 (1) of the Advocates Act (supra)requires filing of appeals to this court within 30 days. - 15. In this case, the taxation ruling was delivered on 19/05/2022 and the appeal challenging the same was lodged in this court on 25/05/2023, which is exactly a year from the time of delivery of the decision. - 16. In Nsubuga v Kahiire (Misc Cause No. 073 of 2013), Luswata J. (as she then was) when faced with a similar situation pointed out that:

The applicant had 30 days within which to lodge this reference/appeal i.e. by 7/7/13. He failed to do so; his defence being that the law allows him time to apply for and receive the certified record of proceedings, in order reasonably, to formulate the grounds of appeal. He also regarded his lapse to be a mere technicality that should not falter the merits of this reference. In my mind this argument is based on the provisions of Section 79(2) of the Civil Procedure Act Cap 71 which is to the effect that "in computing the period of limitation prescribed by this section the time taken by the court or registrar in making a copy of...the proceedings upon which it is founded shall be excluded. I have much doubt that Section 79(2) CPA covers references/appeals against taxation orders. This is because S.62(1) of the advocate's Act which makes specific provision for this type of action, made no provision to accommodate the time within which the Registrar issues a copy of the decree, order proceedings appealed against. None the less, this would not disentitle the appellant to apply for extension of time under the general rule, which he did not do (emphasis supplied).

- 17. Further, the same Judge relied on the case of National Social Security Fund vs. Joseph Byamugisha T/A J. B Byamugisha HCCA No.19 of 2012 where it was held that "the provisions of Section 62 of the Advocates Act are not mandatory. The word used is may and not shall; therefore, that where 'may' is used as opposed to 'shall', then the jurisdiction of the court is not rusted and the court should proceed to allow an appeal filed out of time to be heard and determined on the merits". - 18. In this case, the Applicant attached to his rejoinder, a letter received in the Chief Magistrates Court on 25/05/2022 requesting for the record of proceedings and a typed copy of the ruling *as annexure K*. The said letter was written within the time to appeal (Six (6) days after delivery of the decision) and accordingly copied to the opposite Counsel who has not contested the same.

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- $\mathcal{L}$ - 19. In Uganda Rural Development & Training (URDT) & Anor Vs Mugisa Kimarakwija(HC Civil Appeal No.060 of 2016) my brother Byaruhanga Rugyema J. relied on Yokosofati Muwonge Vs Godfrey Matovu Salongo, HCCA No.98/2018 and observed that:

It is an agreed position of the law that not until such time when the trial court has availed the intending Appellant with a record of proceedings can the Appellant prepare its memorandum of appeal and the 30 days' rule starts applying from the time the Appellant is availed with such record to enable it prepare the grounds of Appeal.

- 20. In this case, I am persuaded by the authorities I have cited. Accordingly, I agree with Counsel for the Applicant's case that Section 62(1) of the Advocates Act is not mandatory requirement; and that the time within which to appeal is freezes once a party requests for proceedings and until the same are availed. On the matter of failure to follow up and delay in filing the appeal, the Respondents have not demonstrated any prejudice occasioned to them. Accordingly, I overrule the first objection. - 21. On the second objection, it is conceded by both parties that there is no record of the lower court before this court. However, it should be noted that, the duty to avail the record of the lower court to this court lies with this the Registrar of this court and the Magistrates in the lower court. Therefore, the Applicant cannot be condemned for the lapse of court. In conclusion, the second objection is overruled as well. - 22. I am mindful that the duty of the first appellate court is to re-evaluate the evidence on the record of the trial court and draw its own conclusion (Selle Vs Associated Motorboat Co. (1968) EA 123 at Page 126). This duty cannot therefore be exercised unless this court is in possession of the lower court's record. - 23. I am aware that the Applicant attached on his affidavit in support a copy of the Plaintiff's Bill of costs, as *annexure 'A'*, and a copy of a Certificate of Taxation as **annexure 'B'**. These are however uncertified and, therefore unreliable. - 24. The Supreme court in the case of William Kyobe Vs Geofrey Gatete & Anor, (Misc. Application No. 10 of 2005) guided that there must a certified copy of the record of proceedings and must be delivered to the appellants and the time must be computed from thereon.

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- 25. However, before I take leave of this matter, I guide as follows; the Assistant Registrar of this court to cause the transmission of the lower courtt record to this court to enable the determination of this appeal. In the meantime, the appeal is stayed until the record of the lower court is provided. - 26. I make no orders to costs. Let each party bear their own costs.

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Signed, dated and delivered at Kampala this 8th day of July 2024.

Nabakooza Flavia. K Judge