Tolith v Dholaga (Miscellaneous Appeal 3 of 2020) [2024] UGHC 614 (8 July 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT JINJA **MISCELLANEOUS CIVIL APPEAL NO.003 OF 2020** [ARISING OUT OF CIVIL SUIT NO.113 OF 2016]

### TOLITH ANDREW::::::::::::::::::::::::::::::::::::

#### **VERSUS**

### DHOLAGA FRED::::::::::::::::::::::::::::::::::::

# **BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI**

#### **RULING**

#### **Introduction**

This Appeal was brought by way of Chamber Summons under Section 62 of the Advocates Act, Regulation 3 of the Advocates (Taxation of costs) (Appeals and References) Regulation seeking orders that the ruling and orders of the learned Chief Magistrate, Her Worship Hellen Ajio be set aside and that the Appellant be allowed to file its bill of costs.

The grounds of the Appeal were laid out in the Affidavit in Support of the Application deposed by Tolith Andrew but are briefly stated as follows;

- 1. The taxation was done without giving the Appellant a right to be heard. - 2. That the amount awarded is manifestly low with no reason assigned. - 3. That the learned trial Magistrate taxed costs in the absence of a bill. - 4. That the award of costs was made without following the taxation principles.

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The Respondent filed an affidavit in reply wherein they averred that the application is incompetent, misconceived and barred in law and as such should be dismissed with costs.

#### **Representation**

The Appellant was represented by Asingwire & Partners Advocates & Legal Consultants while the Respondent represented himself.

### **Preliminaries**

The first point of law was raised by the Respondent who submitted that from the wording of Section 62 of the Advocates Act and Regulation 3(1) and (2) of the Advocates (Taxation of Costs) (Appeals and References) Regulations, suits of this nature are restricted to Appeals from which Bills of costs have been drawn, filed, taxed and a taxation order or decision issued against the Appellant. It is only then that a dissatisfied party can lodge an Appeal to the High Court.

He argued that in the instant case, no taxation order or certificate of taxation was presented by the Appellant to qualify this suit to fit within the ambits of section 62 of the Advocates Act and Regulation 3(1) and (2) of the Advocates (Taxation of Costs) (Appeals and References) Regulations. That this renders the said Appeal incompetent before this court and it ought to be dismissed with costs at this stage.

In consideration of this point of law, it should be noted that the Appeal in point was brought under Section 62(1) of the Advocates Act which provides that;

"Any person affected by an order or decision of a taxing officer made under this Act or any regulation made under this Act may appeal within thirty days to the Judge of the High Court who on that appeal may make any order that the taxing officer might have made."

I agree with the holding of Justice Eva K Luswata in the case of Nsubuga v Kahiire (Misc Cause No. 073 of 2013) [2014] UGHCLD 87 (10 February 2014) where she

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stated that Section 62 of the Advocate's Act was intended for parties aggrieved against taxation orders to seek relief on appeal.

Section 62 of the Advocates Act envisions a scenario where the taxation of the Bill of Costs has been completed and a certificate of taxation has been issued by the taxing officer. It is at this point that a taxing decision has been made. There is a law namely the Advocates (Remuneration & Taxation of Costs) Regulations Statutory Instrument 123 of 1982 that specifically prescribes how this process of taxation of costs has to be undertaken. It is only after this process has been concluded and a taxation decision has been reached that an aggrieved party can invoke section 62(1) of the Advocates Act.

In the instant case, the Appellant has not furnished evidence to show that there was any kind of taxation of costs process envisioned under the Advocates (Remuneration & Taxation of Costs) Regulations Statutory Instrument 123 of 1982 that was instituted by the Trial Magistrate. I therefore find that the Appellant commenced this Appeal under the wrong law and procedure.

Since the Appellants were not happy with part of the judgement of the trial Magistrate, they had a right of appeal under section 220 (1) (a) of the Magistrates Courts Act. (See Hajji Kasim Ddungu V Nakato Nuliat and Another Civil Appeal No. 72 of *2002*). Instead of wrongfully instituting the suit under section 62 of the Advocates Act, the Appellants should have commenced the appeal challenging part of the decree issued by the trial Magistrate by filing a memorandum of Appeal under Order 43 of the Civil Procedure Rules.

Be that as it may, I will rely on the decision of Saggu v Road Motor Cycles (U) Ltd. [2002] I E. A 258; it was held that;

As far as wrong citation of law is concerned or wrong procedure is concerned the court restated the law the wrong procedure or wrong citation of law would not invalidate proceedings. It does not go to jurisdiction or cause prejudice to the opposite side. The general rule is that where an application does not cite any law at all or cites the wrong law but jurisdiction to grant the order sought exists then, the irregularity or omission can be ignored and correct law instilled.

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Based on the above cited case, I shall ignore that the appeal was brought under the wrong law and I will move ahead to determine this Appeal on the basis that there is a glaring illegality in the Judgement of the learned trial Magistrate. This court cannot sanction an illegality when it is brought to its attention despite the procedural irregularities cited above.

Upon perusal of the Judgement, the learned Trial Magistrate held;

"All in all, the suit is dismissed with minimum costs of 2 million Shillings to be awarded to the defendants jointly in equal portions"

Section 27 of the Civil Procedure Act grants the Court powers and discretion to award costs to a party to a suit (See Katon Manufacturers Ltd V Liao Ming Middle East Paper Company Limited Miscellaneous Application No.432 of 2010). The said section states:

Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incident 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 whom and out of what property and to what extent those costs are to be paid, and to give all necessary directions for the purposes aforesaid. (emphasis is mine.)

The import of section 27 of the Civil Procedure Act is that the Court shall have the discretion to award costs to a party to a suit. However, the award of these costs shall be subject to the provisions of any law for the time being in force. Such conditions and limitations may be found under the Advocates Act and the Advocates remuneration and taxation of costs rules. Costs are ordinarily awarded to a successful litigant. Generally speaking, costs shall follow the event as provided for in the proviso to the section. In the case of Makula International Ltd vs. Cardinal Nsubuga (1982) H. C. B. 11 which cited with approval the case of Premchant Reichard Ltd vs. Quarry Services of East Africa No. 3 (1972) E. A. 162, the court agreed that a successful litigant ought to be fairly reimbursed for costs he has had to incur. The discretion under section 27 has however to be exercised judicially. See Uganda

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Development Bank vs. Muganga Construction Company Limited (1981) H. C. B $35.$

It is trite law that the taxation of costs shall be carried out in accordance with the Advocates (Remuneration and Taxation of Costs) Regulations. Regulation 2 of the Advocates (Remuneration and Taxation of Costs) Regulations states that;

## **"Application of Regulations"**

The remuneration of an advocate of the High Court by his or her client in contentious and noncontentious matters, the taxation of that remuneration and the taxation of costs as between party and party in contentious matters in the High Court and in magistrates courts shall be in accordance with these **Regulations.** (Emphasis is mine)"

I have duly noted that the Trial Magistrate went ahead and issued a taxation of costs decision when she awarded minimum costs of two million shillings to the Appellant without subjecting the taxation of the costs to the law and procedure provided for in the Advocates (Remuneration and Taxation of Costs) Regulations. There is no bill of costs, a notice of a taxation hearing or even proceedings of a taxation hearing on the record. This amounts to an exercise of jurisdiction not vested in the court at that particular moment and as a result, the decision to specify the costs payable at that stage becomes illegal.

Much as the Trial Magistrate was vested with powers to award costs to the successful party, she did not have the discretion to specify the specific amount of costs without undertaking the procedure laid out in the Advocates (Remuneration and Taxation of Costs) Regulations.

In the circumstances, therefore, I find that the decision by the Trial Magistrate pertaining to the award of costs was illegal.

I therefore order as follows;

1. The Judgement/decree of the learned Trial Magistrate in Civil Suit 101 of 2015 pertaining to the award of costs is hereby set aside.

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- 2. The Appellant is awarded costs in Civil suit 101 of 2015. - 3. Both parties shall bear their own costs in this Application.

I so order

# FARIDAH SHAMILAH BUKIRWA NTAMBI

.<br>. . . . . . . . . . . . . . . . . . .

## **JUDGE**

Delivered on this ....................................

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