Tinka v Butera and Another (Miscellaneous Application 39 of 2021) [2024] UGHC 429 (26 April 2024)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT MASINDI

**MISCELLANEOUS APPLICATION NO. 0039 OF 2021**

(Arising from Misc. App. No. 145 of 2019) (Also arising from Civil Appeal No. 5 of 2019)

TINKA CHARLES ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

### 1. BUTERA GEORGE

2. SEBUTUKU JAMES:::::::::::::::::::::::::::::::::::: Before: Hon. Justice Byaruhanga Jesse Rugyema

# **Ruling**

- $[1]$ This is an Application under S.98 CPA S.33 Judicature Act and 0.52 rr 1,2 & 3 CPR for orders that the taxation Ruling in Misc. Application No. 145 of 2019 be set aside and costs of the Application be provided for. - $[2]$ The Application is based on grounds set out in the Affidavit of the Applicant in support of the Application which briefly are: - $1.$ The bill of costs is also for Civil Appeal No. 05 of 2019 and M. A. No. 144 of 2019 which are yet to be heard and be determined by Court. - $2.$ The bill of costs is drawn contrary to the Amended Advocates' Remuneration and Taxation of Costs Rules and is a nullity.

- The Applicant has filed an Application to review the orders $3.$ in M. A. No. 145 of 2019 which is not yet heard and determined by Court. - It is in the interest of natural justice, equity and fairness that $4.$ this Application if granted. - The Respondents opposed the Application through an Affidavit in $[3]$ reply deposed by the $2^{nd}$ Respondent, **James Sebutuku** which is to the effect that: - $1.$ It is true that M. A. No. 144 of 2019 has not yet been heard and determined by this Court but that the Application is now moot since this Court set aside the bill of costs and execution. - That only items 1-7 of the impugned bill of costs concern $2.$ M. A. No. 145 of 2019 which was allowed by the learned Judge on points of law.

## **Background**

$[4]$ The Applicant filed Misc. Application No. 145 of 2019 for an interim order of stay of sale of the Respondents' 62 heads of cattle in execution of H. C. C. A. No. 59 of 2005 that had been decided in favour of the Respondents. The Application was heard and a Ruling in favour of the Respondents was delivered on 4<sup>th</sup> August, 2020. A bill of costs was filed by the Respondents and taxed by the Registrar inter-party. The Applicant is presently seeking for the setting aside the bill of costs and certificate of taxation thereof.

# **Determination of the Application**

#### Whether the Application is competent before this Court; $1.$

- $[5]$ Counsel for the Respondents submitted that the Application is incompetent on the ground that as per its head note, it arises from Civil Appeal No. 05 of 2019 and not M. A. No. 145 of 2019 and therefore this Application is a nullity for seeking to set aside a non-existent Taxation Ruling. - I have perused the impugned bill of costs in M. A. No. 145 of 2019. $[6]$ Its head note is to the effect that it arises out of Misc. Application No. 144 of 2019 and Civil Appeal No. 005 of 2019. Upon perusal of M. A. No. 145 of 2019 which gave rise to the impugned bill of costs I find that its head note is also to the same effect i.e. that it arose out of M. A. No. 144 of 2019 and C. A. No. 005 of 2019. The Applicant cannot therefore be faulted for clearly indicating that the present Application arises from the above said Application and Civil Appeal. It is clear that the bill of costs being challenged is out of M. A. No. 145 of 2019. This Court shall consider the merits of the objections to this particular bill accordingly. This Application is found therefore to be accordingly competent before this Court. This objection is found to have no merit and it is accordingly overruled. There exists a taxation Ruling of the bill of costs arising from M. A. No. 145 of 2019 and it this Ruling that the Applicant is seeking to set aside.

- Whether this is a proper case for setting aside $2.$ **Taxation ruling** - This Application seeks to set aside the whole bill of costs on the $[7]$ grounds that: - It incorporated items of M. A. No. 144 of 2019 and Civil $(a)$ Appeal No. 05 of 2019 of which there is no ruling and order awarding costs to the Respondents. - $(b)$ M. A. No. 145 of 2019 whose bill of costs was a subject of taxation is pending hearing of its review vide M. A. No. 38 of 2021. - [8] As regards this last point raised by Counsel for the Applicants, it is indeed noted that both M. A. No. 38 of 2021 for review of the ruling in M. A. No. 145 of 2019 and the present (Application No. 39 of 2021) for setting aside the bill of costs and certificate of taxation in M. A. 145 of 2019, were filed on the same day of 29<sup>th</sup> April, 2021. It is my view therefore that the taxation of the impugned bill of costs on 29<sup>th</sup> April, 2021 which had been filed on 11<sup>th</sup> November, 2020, was done without knowledge of the existence of M. A. No. 038 of 2021 seeking review of M. A. No. 145 of 2019 and it is even possible that at the time of the taxation, M. A. No. 38 of 2021 had not been filed. The bill of costs was taxed interparty. The record of taxation dated 29<sup>th</sup> April, 2021, clearly show that Counsel for the Applicants Mr. Lubega Willy who represented the Applicants in taxation did not bring it to the attention of the Taxing Master that the Applicant had filed M. A. No. 38 of 2021 seeking for review of M. A. No. 145 of 2019 which gave rise to the impugned bill of costs.

- $[9]$ In the premises, it is my finding therefore, that it is not true and correct that the filing and taxation of the impugned bill of costs took place when M. A. No. 38 of 2021 seeking for review of M. A. No. 145 of 2019 was pending in Court. There is no evidence to support such a claim. - [10] As a result of the above, the claim that the taxation of the impugned bill of costs emanating from M. A. No. 145 of 2019 was done when M. A. No. 38 of 2021 seeking to review M. A. No. 145 of 2019 cannot in the circumstances of this case be a good ground to set aside the impugned bill of costs and the certificate of taxation. - $[11]$ As regards the incorporation of items for taxation of M. A. No. 144 of 2019 and Civil Appeal No. 05 of 2019 of which there is no ruling or order awarding costs to the Respondents, Counsel for the respondents and the Respondents themselves conceded that items 1-7 concern Civil Appeal No. 5 of 2019 and M. A. No. 144 of 2019 and therefore cannot be comprised as taxable items in M. A. No. 145 of 2019. However, that the remaining items 8-88 properly concern M. A. No. 145 of 2019 that was the subject of taxation. - $[12]$ Counsel for the Respondent rightly submitted under $As$ Regulation 47 of the Advocates (Remuneration and Taxation of costs) Regulations, bill of costs must be itemized. Each item is taxed on its own and the failure or success of one item does not affect the other unless it duplicates it or covers the other. The taxing master therefore ought in the circumstances to have taxed off items 1-7 because they did not concern M. A. No. 145 of 2019

which bill was the subject of taxation. His failure to do so does not however vitiate the entire bill i.e. items 8-88 which are conceded to properly being under M. A. No. 145 of 2019 which gave rise to the impugned bill of costs would be accordingly taxed as a component of the bill in question.

- Indeed, M. A. No. 144 of 2019 and C. A. No. 05 of 2019 had $[13]$ become moot in that both had sought for setting aside the taxed bill of costs and execution in the Fort portal H. C. C. A. No. 59 of 2005. In the determination of M. A. No. 145 of 2019 the said taxed bill of costs and execution were nullified, thus rendered the 2 matters overtaken by events. - [14] As was held in H. C. C. A. No. 28 of 2015, Uganda Telecom Vs. Warid Telecom;

"...... to pursue an appeal on matter which have since lost backbone would in my view be an exercise in futility and thus merely academic and would add no value to the jurisprudence of the Courts and would be of no consequences since issues of costs which this instant appeal is grounded has already been completely resolved".

In the instant case, the issues of costs in Fort Portal H. C. CS. No. $[15]$ 59 of 2005 which were the subject of M. A. No. 144 of 2019 and C. A. No. 5 of 2019 were completely resolved in M. A. No. 145 of 2019 where they were nullified for being filed by dead persons. To therefore include items 1-7 in the present impugned bill of costs which concerned M. A. No. 144 of 2019 and C. A. No. 5 of 2019 without an order for those costs was in error.

- [16] This Court is empowered under S.33 of the Judicature Act so as to have the matter in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided, correct or rectify the Taxing Master's error of allowing items 1-7 in the impugned bill of costs. I therefore disallow them and vary the total amount allowed by deducting or taxing off a sum for items 1-7 i.e. $(3,421,719 + 200,000 + 60,000 + 2,000,000 + 1,400,000$ $+ 200,000 + 60,000) = 7,341,719/$ = from the total allowed figure amounting $19,898,069=$ to thus have total of Ugx. $\mathbf{a}$ 12,556,350/= (Twelve million, five hundred fifty-six thousand, three hundred fifty shillings only) as the final allowed amount. - [17] In the premises, the Application is partially allowed with a variation of the allowed total bill of costs. It is reduced by taxing off Ugx. 7,341,719/= for items 1-7 conceded to be wrongly included in the bill and have $Ugx. 12,556350/=$ as allowed with no order as to costs.

Dated at Masindi this $\mathcal{A}$ day of $\mathcal{N}$ 2024.

Byaruhanga Jesse Rugyema **JUDGE**