Rodrigues v The British High Commission (Civil Application 7 of 1988) [1988] UGSC 6 (1 December 1988)

COURT $\cdot_{\rm CF}$ UGANDA $PHE$ SUFREME $_{\rm IN}$

### **MENGO** $\mathop{\mathrm{AT}}\nolimits$

#### APPLICATION NO. .7 OF 1983

AFPELLANT/APFLICANT 1111111111 EDDIE RODRIGUES

### A N D

RESPONDENT THE BRITISH HIGH COMMISCION ::::

> (Reference to a Judge of the Taxation Ruling of the Registrar of the Supreme Court of Uganda (Mr. B. F. B. Babigumica) Dated 12th August, 1988).

BETORE: The Honourable Mr. Justice A. H. O. Oder J. S. C.

## RULING

The appellant/applicant (referred to hereinafter as "the applicant") sued the respondent in the High Court of Uganda regarding a residential property situated in Kampala. The suit was dismissed on prelimary points which the respondent had raised. While his appeal to the Supreme Court of Uganda in Civil Appeal No. 8 of 1987 was dismissed with costs, the respondents' cross-appeal in the same appeal was allowed The respondents' bill of cosus in the appeal with costs. was on 12.8.1988 taxed and allowed by the Registrar under Rule 108 of the Court of Appeal for East African Rules, 1972 which still govern matters of Procedure in this Court (hereinafter referred to as the Rules"). The applicant was dissatisfied with that decision of the taxing officer, at the end of which his counsel made an informal application for reference to a judge under rule 109 of the Rules, The application was allowed by the taxing officer.

as taxed unreasoby the Registrar is manifestly excessive/oppresive, nable and that the same be deducted to a reasonable sum. ' On 1-5.10.1988, the applicant filed an application by .notice of motion under rule 109(1) and (2) of the Rules for an Order that the respondents' bill of costs

. 2

me. only the Registrar (of the Supreme Court), on application The . rule does not say that a party can himself apply to a judge of this court.' The learned co// el then drew a \* contrast between rule 109(1) and 109(5). Unlike the former, the latter gives a party power to apply to the court. If the legislature had intended to give the party the power to apply to a judge against the decision of the Registrar under rule 109(1) that power would have been expressly given Counsel also drew a comparison between rule' 109(1) and section 8(b) of the Arbitration Act (cap.55) which empowers an arbitrator to state a special case for the opinion of the court on any question of la., involved. Counsel then urged me to dismiss this application. the ground that the application is not properly before The learned counsel argued that under Rule 109 of the Rules, At the hearing of the application beforeme, Mr. Kateera, counsel for the respondent took, a preliminary objection on • made to him on that behalf, can refer to a judge, upon request by the party who seeks that reference be made. as in rule 109(5)•

against certain orders. In his reply, Mr. Wobutuma, counsel for the applicant, submitted that the provisions of rule 109(1) are analogious to the provisions of Order 40 rule 2 of the Civil Procedure Rules, wiich require that leave should be obtained for appeals According to counsel rule 109(1)

.../5

requires a person dissatisfied to apply to the Registrar for leave to refer the matter to a judge of the Supreme Court. It is not a requirement that such reference should be done by the Registrar himself. If it were so, the rule would have said so expressly. In the instant case, the applicant made an application for reference. The application was granted; thereafter, it was proper for the applicant to refer the matter to a judge of this court as has been done.

There does not appear to any decided authority on the matter under consideration, but in my view, the whole of the provision of rule 109 is relevant to the issues raised by both counsel in this application. The rule provides as follows:-

- "(1) Any person who is dissatisfied with a decision of the Registrar in his capacity as taxing Officer may require any matter of law or principle to be referred to a Judge for his decision and the Judge shall determine the matter as the justice of the case may require. For the purpose of this sub-rule,<br>any decisio extending or refusing to extend time for<br>the lodging of a Bill of Costa or any exercise by the Registrar of the over-riding discretion given him by paragraph 12 of the Third Schedule shall be deemed to involve a matter of principle. - (2) Any person who contends that a Bill of Costs as taxed is, in all the circumstances, manifestly excessive or manifestly inadequate, may require<br>the bill to be referred to a Judge and the Judge shall have power to make such deduction or addition as will render the bill reasonable. Save as this sub-rule provided, there shall be no reference on a question of quantum only. - $(3)$ An application for a reference may be made to the Registrar informally at the time of taxation or by writing within seven days thereafter. - (4) A reference to a Judge may be adjourned by him for the consideration of the Court. - (5) Any person dissatisfied with a decision of a Judge given under sub-rule (1) or sub-rule (2) may apply to the Court to vary, discharge or reverse the same. , Such application may be made either informally to the Judge at the time of decision or by writing

n to the registrar oithin seven days cl th t tine.

I

In sub rules (1) and (2)\_ of this rule the operatives words <sup>3</sup> In either case, make an application for such reference infernally to the Registry at the tine of taxation or by vritin within seven lays thereafter. Registrar as the taxing officer may require any principal or the taxed bil" (as the case shall be) to be referred to a judge for his decision. Then under sub rule (5) a person so dissatisfied and wishes tc require reference to a judge nay appear tc be "may require to be referred tc- a judje". any person who -'is dissatsfled with a decision of the matter of law or

rules (1) and (2), underlined above, is that all that is dissati-Registrar's decision er taxat on order to a judge. After he has done so, it is for the Registrar to refer-the natter to a juoge. It is not a dissatisfied person who had to refer t^e natter ever which he is dissatisfied to a Judge. The sub rule (5) which specifically provides that a person dissatisfied person signifies such a wish oy an infernal application or in writing as provided oy subrule (5)- To my mind trie combined meaning of the expressions\*in sub That role in my view belongs to the Registrar in Lis capacity as the taxing officer. situation in sub rules (1) and (2) in in contrast to that in qnb rule (3^ if a disotisifed tisfied with a decision of a judge given under sub rules (1) and (2) may apply to the court to vary, discharge cr reverse the sa e/ I accept Er. Kateera's view tbr,t if sub rules ("I) and (2) required a person to himself make a reference to a judge by an application as sub rule (5) provides in similar situation, it would have been expressly provided. Secondly there wpmid appear to be no need for an informal application to the registrar under ersen under \*ub rules (1) and (2) <sup>j</sup> sifed person has to do is to require the Registrar to refer the The dissa-

respect, I do not accept Mr. Womutuba's argument that the effect of sub rule (3) is the same as requirement for leave to appeal under Order 40 rule (2) of the C. P. R. In my view sub rule (3) of hule 109 of the Rules is not a requirement for leave. It. appears to me that the effect of the provisions of the sub rule a requirement for notification to the "egistrar by a dissatisfied person that he requires to have the matter referred to a judge. After such notice @ made either by an informal application application or in writing) the Aegistrar does not so ear to have any discretion in the matter. But to state a case the a judge. It is the judge who should then determine in the natt $\texttt{\&r}$ - subject to the provisions of sub rules $(4)$ and $(5)$ .

In the circumstances, I consider that this application $\mathbf{1s}^{\text{is}}$ not properly before me. It should not have been brought in the manner it was. Mr. Kateera's objection is, therefore, accepted and the application is struck out with costs.

DATED at mengo this 1st day of December, 1988.

# $A. H. O. ODE'$ . JUSTICE CURRENT COURT.

1.12.1983, 3.40 p.m.: $-$ In Chambers. Mrs. I. Muguma for the Respondent

Mr. Womutuba for the appellant/applicant

Muling delivered and signed in the presence of both parties.

HH. O. ODER $J. F. C.$ 1.12.1983

J CERTIFY THAT THIS IS A TRUE COFY OF THEORIGITAL.

**BARTGITMTD**