Non - Performing Assets Recovery Trust v Kagadu Enterprises Limited (Civil Appeal 26 of 1998) [1999] UGCA 56 (31 March 1999)

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CIVIL APPLICATION NO. 31 OF 1999

## CORAM HON. MR. JUSTICE S. T. MANYINDO, DCJ.

NPART APPLICANT

#### VERSUS

# KAGADU ENTERPRISES RESPONDENT

# RULING ON A REFERENCE

This is a reference against the Ruling and order of the taxing officer wherein he taxed the instruction fee of Counsel for the respondent at Shs. 18 million. That was on 27.7.1999. A sum of Shs. 22,800,000/= had been claimed as instruction fee. Some other items, not subject of this reference, were taxed at Shs. 374,5001=.

The respondent company has no Counsel in this matter, it having dispensed with the services of its precious Counsel, Mr. Ayena Odongo. Mr. Richard Kagwa Olet one of the Directors of the respondent, was served with the hearing notice but did not turn up in court on the hearing day. And so the matter was argued exparte, under rule 55(2) of the rules of this Court.

Mr. Mulyagonia Kakooza who presented and argued the reference did not allude to one important fact, namely, that her client had already paid out the taxed costs in full to the respondent's former Advocates. It appears that on $2^{nd}$ August, 1999 the respondent wrote to the appellant demanding payment of the taxed costs. The appellant replied on 6<sup>th</sup> August, 1999 as follows:

"Mr. Richard Kagwa Olet C/o Kagadu Enterprises Ltd P. O. Box 572 KAMPALA.

Dear Sir,

RE: CIVIL APPEAL NO. 26 OF 1998 ARISING OUT OF HIGH COURT MISC. APPLICATION NO. 394 OF 1998 KAGAGU ENTERPRISES LTD. - VS - NPART A/C RICHARD KAGGWA OLET.

Your letter of the 2<sup>nd</sup> August, 1999 under reference ALFRED ATENG and addressed to ourselves and our lawyers among others refers.

This is to inform you that all your costs in the sum of Shs. 18.374.500 were contrary to what you allege in your letter, paid to your lawyer M/s Ayena Odongo Co. Advocates vide the Trust's cheque No. C024097 of the 3<sup>rd</sup> August, 1999.

You are hereby advised to deal directly with your lawyers on this matter before reverting to us.

Yours faithfully

Herbeft Kwikiriza

# for: TRUST ADMhVlSIRAfOR

cc Kakooza, Kawuma Co. Advocates The Legal Depaftment, Uganda Commercial Bank Ltd M/s Ayena Odongo Co. Advocates Twindha and Twiiza Auctioneers The Law Council The Court of Appeal of Uganda The High Court of Uganda"

A photocopy of the cheque for Shs. 18,374,5001= in the names of Ayena - Odongo & Co. Advocates and another one for Shs. 600,000/= in the names of the Court Brokers, Messrs, Twiidha and fwiiza Auctioneers were attached to that letter. lt may well be that the respondent did not come to court on the hearing day as their claim was settled fully.

I am not prepared to consider the reference on merits because it should not have been brought since the appellant accepted the ruling of the Taxing officer and paid the taxed costs. There is no evidence that the payment was made under protest; there was no attempt made to stay execution. lt is quite remarkable that Counsel for the appellant chose to keep quiet about the matter in court. I discovered it by chance and after the hearing had ended. It can be said that the counsel avoided the issue deliberately.

I think what has happened is an abuse of court process. The appellant cannot approbate and reprobate. ln the result I find the reference misconceived. lt is dismissed. I make no order for costs.

DATED at KAIVIPALA this ..11. IL ... day of 04 J,unb 2000.

S. T. MANYINDO DEPUTY CHIEF JUSTICE.