Muyanja Mbabaali v Birekeraawo Nsubuga Mathias (Civil Reference 73 of 2012) [2013] UGCA 2054 (9 April 2013)

## THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## crvrl REFERENCE NO.73 I 2OL2

(Arbing from Election Petition Appeal No.36 of 2O1 1)

ANJA MBABAALI : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :APPELLANT

## VRS

REKERAWO NSUBUGA MATHIAS RESPONDENT

ram Before Justice Remmy. K. Kasule, as a single Justice.

## RULING

This Reference arises from a Bill of Taxation of costs lodged by e respondent relating to Election Petition Appeal No.36 of 11: Muyanja Mbabali Vs Birekeraawo Mathias Nsubuga. The ection Petition Appeal was dismissed by a full Bench of this Court K. Byamugisha, A. S. Nshimye and M. S. Arach-Amoko) on . O5.2012 with costs to the respondent.

this ruling the applicant for the Reference is the "Appellant" and one against whom the Reference is brought is the spondent." e

The Reference was lodged by the appellant to the appeal, uyanja Mbabali, through his lawyers KMT Advocates.

In a letter of 14.06.2012 to the Registrar of this Court, the pellant's said lawyers wrote:

".............we are dissatisfied with your decision to issue taxation notices and conduct taxation proceedings in the above matter.

Accordingly, we require that the bill be referred to a judge under Rule 11O(1), 11O(5) all of the Court of Appeal Rules and the contingent enabling provisions of the Law."

On 18.06.2012 when the Taxation carne up before the Assistant strar of this court (Alex Ajiji), Counsel for appellant repeated his r for a Reference on the grounds stated in the already stated espondence. Counsel for the respondent opposed the prayer to a Reference to a single Justice and urged the Assistant strar to proceed with the taxation. The Assistant Registrar then d thus:

"With all due respect to both counsel and without running the risk of delving into arguments ralsed by counsel of the parties especlally that the respondent has what he has filed in court a reference, let the matter be referred to a single judge to determine lssues raised in seeking the reference.

The matter shall now be placed before a slngle judge of the court within 7 days from today" (sicl

reference was hence placed before me.

At the hearing, learned Counsel Simon Peter Kinobe appeared the appellant while Counsel Caleb Alaka and Brian Kabayiza resented the respondent.

For the appellant it was submitted that the Reference should be owed because the Registrar had been biased against the pellant when the said Registrar failed to note on the court record ssrs KMT Advocates as the new firm of lawyers representing the ellant. The Registrar had instead continued to deal and serve t process upon the old lawyers on the court record who had resented the appellant at the hearing of the Election Petition al. By so conducting himself, the Registrar had shown bias also denied the appellant of a right to a fair hearing. Counsel er submitted that no taxation of costs should be done in the ction Petition Appeal No.36 oI 2OL1 before the disposal of titutional Petition No.22 ol2Ol2, the appellant had lodged the Constitutional Court, questioning the constitutional validity e way the Court of Appeal had handled and disposed of the Election Appeal. in of

Counsel for the respondent strongly opposed the allowing of the erence. The allegation of bias against the appellant had no merit bias can only be by a named judicial officer and not the whole e of Registrar, Court of Appeal. The appellant had named no h particular judicial officer in the office of Court Registrar. e a Reference is in the nature of an appeal, it was a presite that before the same is lodged there had to be in place a AS

cision capable of being appealed against, one upon which a ference is being preferred against.

This decision was lacking in this instance. The Ruling of the sistant Registrar forwarding the parties for a Reference to a single stice had not also specihed any such decision. As to the ertion that the Registrar had not dealt with the new lawyers of appellant while fixing the Taxation for hearing, the remedy for s was for the new lawyers to seek more time to prepare by asking an adjournment, but not by having the taxation referred to a <sup>e</sup>justice.

Respondent's counsel further submitted that the lodgement in rt by the appellant of Constitutional Petltion No.22 of 2Ol2 d not be an automatic ground to stop the taxation of the pondent's bill of costs in Election Petition Appeal No.36 of 11. This is because the respondent, whose bill of costs is the ect of taxation is not a party to the said Constitutional Petition. s the Attorney General and the Electoral Commission who are pondents to the same. At any rate, as far as election matters are cerned, the law mandates the Court of Appeal to be the final t. Therefore the respondent having had the issue of costs ided by the final court is entitled to have his bill of costs taxed. It

The same above arguments, according to respondent's counsel, lied with equal force to Constitutional Applications Nos. 2O 2L of 2OL2 for substantive and interim applications to stay

cution of the decree in Election Petition Appeal No.36 of 2O11 sing from High Court, Masaka, Election Petition No.6 of 2O11.

The remedy of damages, respondent's counsel maintained, is ays there to compensate the appellant should the issues in nstitutional Petition No.22 of 2Ol2 be decided in his favour.

I will now proceed to resolve the issues of this Reference as itted upon by counsel for the respective parties.

A Reference is in the nature of an appeal: see: Court of Appeal ference No.39 of 2OL2: Kirya Grace Wanzala Vs Daudi ereko.

Rule 110(1) of The Judicature (Court of Appeal Rules) ctlons provides:

t110. Reference on Taxation.

(l)Any person who is dlssatisfied wlth a decision of the Regtstrar in his or her capacity as a taxing officer may require any matter of law or principle to be referred to a judge for decislonl and the Judge shall determine the matter as the justice of the case may require."

The above rule envisages that the Registrar must Iirst make a ision as a taxing officer concerning a bill of taxation before him er and the decision must be one of law or principle. It is that or

cision that may be referred to a single justice for determination way of appeal, if any party to the taxation, is dissatisfied with it.

With respect to the Assistant Registrar of this court who ordered s Reference to be made to a single justice, there is no decision by of a matter of law or principle that he specified as having been de by himself, as the Registrar taxing the bill of costs in issue, d as the decision he was referring to a single justice for <sup>a</sup> rmination.

Be that as it may, from the 14.06.2012 letter of appellant's nsel already quoted above, and from the submissions made ore the Assistant Registrar on 18.06.2012 and to this Court on alf of the appellant and opposed by counsel for the respondent the hearing of this Reference, the grounds giving rise to the erence appear to me to be: at

- 1. The issuance by the Registrar of Taxation Hearing Notices with a view to tax the respondent's bill of costs relating to Election Petition Appeal No.36 of 2O11 when the Registrar was aware of the existence in the Constitutional Court of Constitutional Petition No.22 of 2OL2 and Constitutional Applications Nos.2O and 2L of 2012. - 2. The Registrar being biased against the respondent by failing to note on the court record the appellant's new firm of lawyers of Messrs KMT Advocates and failing to serve upon the said new lawyers hearing notices for the taxation.

With regard to the first ground, the facts are that the appellant d respondent to this Reference were both candidates in <sup>a</sup> liamentary Electiou for Bukoto South Constituency, Lwengo trict, held on la. O2.2OlL. The election was won by the llant. Through Election Petition No. OO6 of 2O11 in the High , Masaka, the respondent petitioned court to annul the said tion results on the ground that the appellant did not qualify to d as a Member of Parliament, as he did not have the necessarSr emic qualifications. The High Court (Owiny-Dollo, J.) allowed said election petition on O2. O9.2Oll. Both the nomination and sequent election of the appellant were annulled and a byeon ordered. The petitioner, now respondent, was awarded ts of the petition. The appellant appealed the decision of the Court, Masaka, to the Court of Appeal through Election ition Appeal No.36 of 2011. The Court of Appeal dismissed same and confirmed the orders of the High Court on O5.2O12. The respondent was again awarded costs of the appeal those of the High Court below. Subsequent to the dismissal of ction Petition Appeal No.36 of 2OL1, the appellant lodged in Constitutional Court Constitutional Petition No.22 of 2OL2 st the Attorney General and Electoral Commission as ondents on 17. O5.2O12. The appellant alleged in the petition the Court of Appeal Justices who determined Election tion Appeal No.36 of 2OL1 abdicated their constitutional pendence and impartiality in contravention of Articles 28 and of the Constitution. The appellant, following the lodgement of

e Constitutional Petition, also filed in the Constitutional Court plications Nos. 2O of 2Ol2 and 21 of 2Ol2 for a temporary unction and interim order staying execution of the judgement d orders of Election Petition Appeal No.36 of 2O11 pending the al disposal of Constitutional Petition No. 22 of 2OL2. Both the nstitutional Petition and the two stated applications are still ding disposal in the Constitutional Court.

In the meantime, the court decree in Election Petition Appeal .36 of zOlL was partly executed in that the Electoral ssion held a bye-election in Bukoto South Constituency ich was won by the respondent who is now the Constituency g Member of Parliament.

I note that Constitutional Petition No.22 of 2OL2 as well as plications Nos. 2O|2OL2 and, 2Ll2Ol2 have the Attorney ral and the Electoral Commission as the respondents and not respondent to this Reference. Appellant's counsel submits that Registrar must not proceed with the taxation until the stitutional Petition and the two applications have been disposed He relies on Article 137 l7l of the Constitution as the basis this submission. of.

With respect to appellant's counsel, there is nothing in Article (7) to back up his submission. The effect of that Article is that Constitutional Court has to give priority to petitions and rences that require constitutional interpretation by determining sarne as soon as possible, and for that purpose, the Court may

spend any other matter pending before it. The Article is no ense to the Constitutional Court to make decisions that violate er provisions of the Constitution. For example, the Right to be ard under Article 28(1) of the Constitution is a non-derogable t under Article 4apl.

The submission that the respondent to this Reference should be ented from enjoying the benefits of the decree in Election tltion Appeal No.36/2O11 because of the existence, pending posal, of Constitutional Petltion No.22 of 2Ol2 and plications Nos.2Ol2O12 and 2ll2ol2, to which the respondent this Reference is not a party and thus cannot be heard, is not tified. to

I therefore hold that the existence, pending disposal, of titutional Petition No.22 of 2OL2 and Applications Nos 2OL2 and 2ll2OL2, to which the respondent is not a party, is a valid reason for preventing the respondent from moving the strar of this Court to proceed with the taxation of the ondent's bill of costs in Election Petition Appeal No.36 of 1.

n the issue of the Court Registrar being biased against the llant, I note that the appellant did not specify any particular or vidual Registrar being biased against him. It is diffrcult to ciate that the appellant's case is that the whole Court of al Registry, as an entity, was biased against him. The ciple of law is that the party alleging bias bears the burden to

t5

that bias. This burden can only be discharged by clearly ntifying the individual judicial officer alleged to be the author of bias. The appellant never did this in this case.

The grounds constituting bias, according to Counsel for the pellant, are that the Registrar failed to note on the court record ssrs KMT advocates, the new firm of lawyers, that the appellant <sup>d</sup>just instructed in the cause. The Registrar had also continued serve hearing notices and other court process of the taxation on the old lawyers of the appellant, excluding the stated new rS

It is necessary to determine whether these grounds are capable onstituting bias in law or in fact or in both. of

There are two tests that courts of law apply to determine ether there has been bias. The oldest test is whether the facts w that there is a real likelihood of bias. This is done by ertaining whether the judicial officer alleged to be biased acted er the influence of some interests, be it pecuniary, proprietary dred. or

## See: Supreme Court of Uganda Crimlnal Appeal No.33 of 1: Professor Isaac Newton Ojok Vs Uganda. 20

e second test, stated to be a modern one in contrast to the e expectations of reasonable right-minded people. The court s at the impression, which would be given to other people. If one, is the one of reasonable suspicion of bias. This test looks at

l5

minded people would come to the conclusion that, in the umstances, there was a real likelihood of bias on the part of the icial ofhcer presiding over a cause, then that judicial officer ould not sit to judge the cause, and should he or she sit to. hear d determine the cause, then that judicial officer's decision cannot d, even if that oflicer was as impartial as he or she could be. t there must appear to be real likelihood of bias, in that, cumstances must exist from which a reasonable person would k it likely and/or probable that the judicial officer presiding r the cause would or did favour one side unfairly at the expense the other. Mere surmise, conjecture or wishful thinking is not ugh: See:

upreme Court of Uganda Criminal Appeal No. 1 of <sup>19822</sup> Nasur Vs Uganda,

Supreme Court of Uganda Civil Appeal No.7 of 1998 G. M. bined (U) Ltd Vs A. K. Detergents Ltd & 4 Others, 15

1: Obiga Mario Kania Vs Electoral Commission and Wadri siano Ezati, of Appeal of Uganda Election Petltiou Appeal No.4 of

## d also

## <sup>V</sup>Sussex Justice Er<-Parte McCarthy lL924l I KB 259.

allegation of bias against a judicial officer is a matter of grave sness and therefore ought to be made in public and in open with the proceedings being properly recorded by the court. u

e concerned judicial officer's response must also be as a result of exercise of judicial consideration and determination on his/her and that determination has to be part of the record. It is proper for other members of the court coram, if there is one, to termine the issue of bias, because to do so would tantamount by se other members of the court coram, judiciously determining integrity of their fellow judicial officer on the same coram, and have no jurisdiction to do that. See: Constitutional Petition . L of 1997 Attorney General V Major General Tinyefuza.

I have given due consideration to tJ..e facts of this Reference and grounds upon which the appellant alleges bias against him by Court Registrar. It is a fact that the court process as regards ation of the respondent's bill of costs uras served upon the old sel of the appellant. But it is also a fact, that at no time, was taxation conducted in the absence of the appellant or his sel whether the old one or the new one just instructed. When appellant's new lawyers Messrs KMT advocates pointed out to Registrar that they were now the ones representing the llant and that service of court process be effected upon them, Registrar so accepted and did not in any way reject or pprove of the said lawyers.

pplying the first test of bias to the above facts of the case, I am ble to find that the Registrar, whoever he was, acted or was ly to act under any pecuniary, proprietary, kindred, or any other rest or influence, at all, to the prejudice of the appellant.

Equally, applylng the second test to the same facts, I find that sonable minded people could not have come to the conclusion, the basis of the above stated facts, that there was reasonable spicion that the Registrar, whoever he was, was biased against appellant. Given the facts of this Reference, they, as reasonable ople would have come to the reasonable suspicion, which I also e to, that the failure to note the appellant's new lawyers on the rt record and the continuation of still serving court process, as ds taxation, upon the old lawyers, was a mere oversight on the t of the Court Registry staff, but not a matter of bias against the ellant by any particular Registrar. In my considered view, a yer for an adjournment for more time for the new lawyers of the ellant to properly prepare themselves for the taxation, if at all were not ready at that time, would have solved the situation. appellant and his counsel did not resort to this option.

In conclusion, given the fact that the Assistant Registrar did not e any grounds for resolution in the Reference, and, ependent of the just stated reason, the two grounds framed by for resolution on the basis of the proceedings, pleadings and missions before me, having been unsuccessful, this Reference omes devoid of any merit. Accordingly the sarne stands issed.

s to costs, I find that the issues of the Reference have been straight forward and ordinary. I award costs of the Reference

to the respondent but on the basis of only one counsel. It is so ordered. Dated at Kampala this .................................... $\ldots\ldots 2013.$ illes Remmy Kast $\mathsf{S}$ JUSTICE OF APPEAL $\overline{C}$ $s$ can lege iner $\mathscr{S}$ $\overline{0}$ $\mathbb{C}^{\mathbb{N}}$ KEMU $Siv$ $b \times b <$ $\alpha$ $\sqrt{ }$