Nantaba v Nabasirye & Another (Taxation Reference 291 of 2019) [2024] UGCA 276 (18 September 2024)

#### THE REPUBTIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### TAXATION REFERENCE NO.291OF 2019

(Arising out of Election Petition Application No. 2 of 2015)

#### NANTABA IDA ERIOS

APPLICANT

VERSUS

#### 1. NABASIRYE MARGARET

2. KASUMBA BRUHAN RESPONDENTS

# (Coram:Moses Kazibwe Kawumi, sitting as a Single Judge)

RUt!NG

#### lntroduction

This taxation reference was brought under Section 12(1) of the Judicature Act and Rule 53(1) of the Judicature (Court of Appeal Rules) Directions S.l 13-L0. The reference is against the orders of the taxing master.

The background to the application is that the Respondents filed Civil Suit No.245 of 2015 in Jinja High Court seeking a declaration that the Applicant was not qualified to be nominated to contest for the position of Woman member of Parliament for Kayunga District. The Respondeitts further filed Miscellaneous Application No.456 of 2015 seeking an injunction stopping the Electoral Commission from nominating the Applicant as a candidate which application was granted by the court.

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The Applicant filed Election Petition Application No.1 of 2015 for an order to stay the implementation of the injunction granted to the Respondents. The court granted an interim order staying the implementation vide Election Petition Application No.2 of 2015 filed by the Applicant. The Applicant subsequently withdrew Election Petition Application No.1 of 2015 which court allowed with no order as to costs. The court however awarded costs to the Respondents in Election Petition Application No.2 of 2015 much as it was heard ex-parte.

'lhe Respondents filed a bill of costs of UGX.236,905,800 which on taxation was allowed at UGX.20,407,800. The Applicant opposes the au,ard through this reference before a Single Justice of the Court.

# Representation

At the taxation hearing on 5th September 2024 Mr. Asingwire Martin appeared for the Respondents. Mr. Tebyasa Ambrose for the Applicant uras not in court. Counsel applied for the court to adopt the submissions frled by the parties for the determination of the Reference. The application was allowed and the Ruling is premised on the submissions.

# Submissions for the Applicant

It rvas submitted for the Applicant that the taxing master ought not have entertained the bill of costs since the Respondents did not participate in Election Petition Appeal No.2 of 2015.|t was further submitted that the allowed fees for particular items in the bill of costs were contrary to rule 9(3) of the 3'd schedule to the Judicature (Court of Appeal Rules) Directions which provides for reasonable fees of not less than UGX. 1000. Counsel proposed a nominal fee of UGX.5000.

Counsel for the Applicant argued that non participation of the Respondents in Election Petition Application No.2 of 2015 implied that they did not earn any fees or incur any costs to be taxed by the taxing


master. The court was urged to set aside the award by the taxing master and instead award costs of the Reference to the Applicant.

## Respondent's submissions

Counsel for the Respondents raised an objection to the effect that the Reference was never served on him within the time prescribed by Order 49 rule 2 of the Civil Procedure Rules and only got a copy after almost four years. lt was submitted that failure to serve summons renders the matter as dismissed under Order 5 rule 1(3) of the Civil Procedure Rules citing Namuddu V Godfrey Rwabuganda. SC Civil Application No.16 of 2014 and Sulaiti Dungu V Kateera Akuguzibwe. CACA No.44 of 2015 for the proposition.

It was further submitted that the Reference lacked merit since it v'as silent on the principle or law that was contravened by the taxing officer as required by Rule 110(1) of the Judicature (Court of Appeal Rules) Directions. S.l 13-10.

Counsel for the Respondents also argued that the bill should only have been sent to a Single Justice to increase or reduce the amounts allowed by the taxing master since only the quantunt is contested by the Respondent. lt was argued that the interim order application hearing was inter-parties as indicated on the court record. The court was urged to dismiss the Reference with costs to the Respondents.

## Rejoinder by the Applicant

It was re-joined that the late service was a lapse by counsel who handled the matter at the time and it does not go to the root of the Applicatior. Counsel further argued that no prejudice was occasioned to th..l Respondents since an oral application could have been opted for by the Applicant's Counsel. lt was further argued that the Respondents failed to


formally challenge the Reference and/or recover the costs hence their objections are misconceived.

Counsel relied on Francis Kimbugwe &Others V Birungi Deus. CACA No. 186 of 2013 for the proposition that a respondent who has defaulted on the proper procedure of the law cannot be permitted to fault the Applicant for a default in the legal process.

It was submitted that the non-participation of the Respondents in the Apolication based on which costs were awarded denied them any justification for the costs which were also outrageous and baseless.

# Determination

the Respondents raised an objection relating to the failure by the l,pplicant to serve them with the Reference citing the civil procedure Rules providing for service to be effected within 21 days as stipulated for Summons under order 5 rule 1(3) and order 49 rule 2 of the civil Procedure Rules. A perusal of the Judicature (Court of Appeal Rules) Directions.s.l 13-10 however does not reveal any prescribed period within which a Reference has to be served on the opposite party.

It is also not argued by the Respondents that any prejudice was c'ccasioned to them by the alleged late service hence I find no reason to sustain this objection. lt is also apparent from the Reference that the Applicant objects to both the quantum of the award by the taxing master and the principal of awarding costs in a matter that was heard ex-parte.

The lleference is therefore not prohibited by Rule 110(4) of the Judicature (Court of Appeal Rules) Directions.

section 27 of the Civil Procedure Act provides for costs to follow the event in effect implying that the successful party is awarded costs. Election Petition Application No.2 of 2015 was filed by the Applicant and tne relief she sought was granted by the court. The Respondents who


were neither parties nor participants in the proceedings could not be entitled to any costs.

It was therefore incumbent on the Registrar to verify the role played by the Respondents before entertaining the filed bill of costs. All the effort expended in taxing the bill and arriving at UGX. 20,407,000/-. was in vain since the Respondents did not incur any expenses meriting taxation.

The reference succeeds for the reasons enumerated above. The Respondents shall pay costs of this application to the Applicant.

Dated and delivered this ....................................

Moses Kazibwe Kawumi JUSTICE OF APPEAL