Ssaka and Another v Kavunia (Civil Appeal No. 62 of 2003) [2006] UGCA 62 (1 January 2006)

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

# HON. JUSTICE C. N. B. KITUMBA, JA. CORAM: HON. JUSTICE C. K. BYAMUGISHA, JA. HON. JUSTICE S. B. K. KAVUMA, JA.

# CIVIL APPEAL NO. 62 OF 2003

#### **GODFREY SSAKA** TONNY KAMOGA :::::::::::::::::::::::::::::::::::: 1. $2.$

# **VERSUS**

# FREDRICK KAVUMA ::::::::::::::::::::::::::::::::::::

[Appeal from the ruling of the High Court held at Kampala in Miscellaneous Cause No. 152 of 2003 (Bamwine, J.) dated $1/4/2003$ ]

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# **JUDGEMENT OF KITUMBA, JA.**

This is an appeal against the order by the learned trial judge in High Court Miscellaneous Cause No. 152 of 2003 that each party to the application of the extension of the caveat that was struck out meets its 25 own costs.

The following is the background to the appeal. On $15/7/2002$ the appellants became the registered proprietors of land comprised in Kyadondo Block 220 Plot 11 Kiwatule as administrators of the estate of the late Dasani Matovu. The late Dasan Matovu was registered as proprietor of the same land in 1961.

Jalia Nalubega who was the second applicant in the application before the High Court, lodged a caveat on 19/8/2002 as a lawful and registered 35 proprietor of the same land. She attached a copy of certificate of title.


On 29/8/2002, the officer in charge of Kampala mailo office wrote to her informing her that the certificate of title upon which she was relying did not have any root of title and was an illegal document.

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On 16/6/2002 one Kate Akandinda lodged a caveat on the same land $5$ claiming that she had purchased 0.25 acres out of the same land from Jalia Nalubega in October 2001. The caveat lapsed in October 2002, but while it was still subsisting, Fredrick Kayuma who was the first applicant, lodged a caveat on the suit land. The basis of his interest in the land was by virtue of a customary tenure lasting over forty years. $10$

It was the appellants' case that Kavuma had never occupied and was not occupying any part of the suit land and his claim based on customary occupancy was false. On receipt of the notice from the Chief Registrar of

Titles to show cause under section $149(2)$ of the Registration of Titles Act $15$ why the caveat should be retained on record, the respondent by notice of motion under section 149 (3) of the Registration of Titles Act and Order 48(1) of the Civil Procedure Rules applied to court to have the caveat extended.

On consideration of the affidavit evidence on record and the submissions by counsel for both parties, the learned trial judge rejected the application for being misconceived and incompetent and struck it out. He ordered each party to meet its own costs of the application because of the inconclusive nature of the dispute.

The appellant was dissatisfied with the order on costs and filed the appeal to this Court on one ground that reads:-

"1. The trial judge erred in law and fact by ordering each party to meet its own costs."

He prayed this Courr:

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(a) to allow the appeal and order that the trial judge's order that each partv meets its own costs to be set aside and to be substituted by an order awarding the appellant the costs of the said ca use

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# (b) to order that costs of the appeal in this Court and in the Court below be awarded to the appellants

l0 l5 When the appeal came up tbr hearing NIr. Ronald Oine,leamed counsel fbr the appellant, informed Court that the appellant had abandoned the appeal against the second respondent the late Jalia Nalubega who had passed away after the filing of the appeal. He applied to proceed under rule 99(3) of the Court of Appeal Rules. This Court noted that the respondent had been duly served with the hearing notice. There was on record the affidavit of service dul,," sworn on 711112003 by Stephen Musisi. The court allowed him to proceed ex parte.

l0 :5 Submitting on the sole ground of appeal, leamed counsel contended that the leamed trial judge did not exercise his discretion judicially when he denied the appellant costs of the application in the High Court. He argued that according to section 27 of the Civil Procedure Act the judge has the discretion to award costs. The costs of any cause or matter in issue tbllow the event, unless the court for good reason otherwise orders. Counsel submitted that the discretion of a judge in matters of costs must be exercised judicially and a successful party can only be denied costs if it is proved that but for his conduct the action would not have been brought. In support of his submissions he relied on the following ar-rthorities: Uganda Development Bank vs. NIu venga C. <sup>o</sup>nstructio <sup>n</sup>

# Company Ltd [1981] H. C. B. 35 Makula International vs Cardinal Nsubuga [1982] HCB 11.

Counsel criticised the learned trial judge for denying costs of the application to the appellant whereas he had made the following $\mathsf{S}$ statements and findings in his ruling. He had found *that the respondent* had come to court with dirty hands, and that the application was incompetent and misconceived an abuse of process and ordered it to be struck out. He argued that the court could not finally determine the dispute because of the way the respondent had brought the claim to court. $10$

I have perused the record and considered the submissions of counsel made both orally and as contained in the conferencing notes. Counsel has correctly stated the law and principles on the award of costs. The judge has the discretion to award costs or not but that discretion must be $15$ exercised judicially. The law is well settled that an appellate court should not interfere with the exercise of the discretion of a trial judge unless it is satisfied that the judge misdirected himself or herself on some matter and as a result arrived at a wrong decision, or unless it is manifested from the case as a whole that the judge was clearly wrong in the exercise of his 20 discretion and as a result there was a miscarriage of justice. See **Mbogo** and Another vs Shah [1968] EA 93.

In the instant appeal the judge held that there was no suit between the appellant and the respondents pending final determination. For the 25 aforesaid reason the application was an abuse of process, it was incompetent and misconceived and ordered that it be struck out. The judge declined to use his discretion to extend the caveat because it was an equitable remedy. He rightly stated that one seeking such a remedy must come to court with clean hands. He held that the respondent did not 30

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come to court with clean hands for two reasons. Firstly, the certificate of title which the second applicant had attached to her application tbr the caveat was lalse and had been declared illegal by olficer in charge of the mailo oft-rce. Secondly, the atlldavit by the respondent contained t'alsehoods. The learned trial judge held fur-ther that he could not finally determine the dispute whether the respondent had proprietary interest in the suit property or not because of the nature of the suit.

It is obvious that all that the judge found were mistakes authored by no other than the respondent. The respondent dragged the appellant to court on a misconceived and an incompetent application which was an abuse of court process. He failed to hle a proper suit tbr the determination of his alleged customary occupancy. With the greatest respect, if the learned trial judge had properly directed himselt', he would not have denied the appellant's costs of the applicaion. IU li

In the result, I \*ould allow the appeal. As By arnLrgisha. JA. and Kavuma, JA agree I allor.r the appeal. -[ he order of the trial judge that each partl meets its own costs r'r'ould be set aside. [t is substituted with the order thirt the responcient pa)s the appellants the costs in thc High C ourt.

This appeal is allowed with costs to the appellant

itr\_ <sup>L</sup> Dated at Kampala th is day of 2006. l5

\_:N-4,. fE-,\\_- C. N. B. KitLrmbr JUSTICE OF APPEAL

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

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CORAM: $\mathsf{S}$ HON. LADY JUSTICE C. N. B. KITUMBA, JA HON. LADY JUSTICE C. K. BYAMUGISHA, JA HON. MR JUSTICE S. B. K. KAVUMA, JA

## CIVIL APPEAL NO.62/2003

### **BETWEEN**

#### 1. GODFREY SSAKA 2. TONNY KAMOGA::::::::::::::::::::::::::::::::::: $15$

### AND

#### FREDERICK KAVUMA::::::::::::::::::::::::::::::::::: 20

Appeal from the ruling and orders of the High Court of Uganda at Kampala (Bamwine J) dated $1<sup>st</sup>$ April 2003 in Miscellaneous Application No.152/2003

#### JUDGEMENT OF BYAMUGISHA JA 25

$10$

I had the benefit of reading in draft form the judgement of Kitumba JA

that has just been delivered. The facts leading to the institution of the

application in the lower court are sufficiently set out in the lead

judgement and I need not repeat them. I agree that this appeal ought to 30 succeed. However, I have a few remarks of my own to make. Sections 27

### of the Civil Procedure Act (Cap 71 Laws of Uganda) governs the

award of costs in civil matters. It states as follows:

"(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the 35 costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by

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whom und out of what property tttd to whut extent tose costs are to be puitl, und to give oll necessary directiotts for tlrc purposes uforesoitl.

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(2) Thefact that the court orjudge hus jurisdiction to try; the suit shall be no bar to the e-rercise of the powers in subsection (1); but the costs of any action, cause or other nrutter or issue sltall follow the event unless the court orjudge shallfor good reason otherwise order".

The provision of this section gives the court orjudge wide discretion as to

- l0 costs, since they follow the event. Determining as to who should bear the costs is a discretionary matter, which like any discretion, must be exercised judicially. The judge ought not to exercise it against a successful party, except for some good reason connected with the case. - t5 In the instant appeal, in refusing to award costs olthe action to the appellants, the leamed judge was of the view that the rnatter could not be conclusively determined because of the manner the application was presented to couft. The other reason was that the atfidavit that was swom in support of the application was tull olt-alsehoods. The tailure by the t0 respondent to present his case properly, as the law requires was no good reason to deny the appellants their costs as successful litigants in my view. Theretbre I consider this appeal to be one olthose cases in which an appellate court ought to interi-ere with the exercise oldiscretion by <sup>a</sup> judge because the reasons given did not meet the reqr.rirements of section l5 27(supra).

I would allow the appeal in the terms proposed by Kitumba JA.

Dated at Kampala this. 27th day of Test 2006.

mugisha C. K **Justice of Appeal**

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# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA

# **AT KAMPALA**

# CORAM: HON. LADY JUSTICE C. N. B. KITUMBA, JA. HON. LADY JUSTICE C. K. BYAMUGISHA, JA. HON. MR. JUSTICE S. B. K. KAVUMA, JA.

# CIVIL APPEAL NO. 62/2003

### **BETWEEN**

- 1. **GODFREY SSAKA** - TONNY KAMOGA................................... $2.$

# AND

FREDERICK KAVUMA................................... [Appeal from the ruling and orders of the High Court of Uganda at Kampala (Bamwine J) dated 1<sup>st</sup> April 2003 in Miscellaneous Application No. 152/2003]

# JUDGMENT OF S. B. K. KAVUMA, JA.

I have had the benefit of reading in draft the judgment prepared by C. N. B. Kitumba, JA. I agree with the reasoning and orders made in the said judgment and I have nothing to add.

Dated at Kampala this $2.7$ day of $4.5$ cm.................................... $S. B$ Justice of Appeal.