Tororo Cement Ltd v Zyene Enterprises Ltd and Others (Civil Appeal No. 62 of 2017) [2020] UGHC 415 (30 September 2020)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA**

**HOLDEN AT MBALE**

**CIVIL APPEAL NO. 62 OF 2017**

**(ARISING FROM CIVIL SUIT NO. 022 OF 2016)**

**TORORO CEMENT LTD ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF**

**VERSUS**

1. **ZYENE ENTERPRISES LTD** 2. **PAAPU SAYANI ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANTS**

**AND IN THE MATTER OF AN APPEAL BETWEEN**

**TORORO CEMENT LTD ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT**

**AND**

**WAKOU MICHEAL T/A KAWA**

**COURT BAILIFFS & AUCTIONEERS :::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

**BEFORE: HON JUSTICE SUSAN OKALANY**

**RULING**

**INTRODUCTION**

1. This Appeal was brought under ***Order 43, Rule 4, sub-rules (1), (3)*** and ***(5), Order 50, Rule 8*** of the ***Civil Procedure Rules*** and ***Section 98*** of the ***Civil Procedure Act,*** against the decision of Her Worship Mary Ikit, the Deputy Registrar of the High Court, delivered on 18th May 2017. It seeks for orders that: 2. The whole decision and orders of the learned Deputy Registrar made on 18th May 2017 in Civil Suit No. 022 of 2016, directing the Respondent to recover his costs of 41,765,000/= from the Appellant, be set aside; 3. The warrant of attachment and sale of the Appellant’s properties issued by Court be set aside; 4. Enforcement and execution of the orders made by the learned Deputy Registrar on 18th May 2017, be stayed pending the hearing and determination of the Appeal; 5. The Appeal be allowed; and 6. The costs of this Appeal be provided. 7. The grounds of the Appeal are that: 8. The Appellant is dissatisfied with the whole decision and orders of the court made by the learned Deputy Registrar on 18th May 2017; 9. The learned Deputy Registrar erred in law and fact when she vacated her earlier order requiring the Respondent to recover his costs from the properties of Zyene Enterprises Ltd and Pappu Sayani (Judgment Debtors); 10. The learned Deputy Registrar erred in law and fact when she took a decision on a matter where she was functus officio; 11. The learned Deputy Registrar erred in law and fact when she taxed the Respondent’s bill of costs in the absence of the Appellant and without according the Appellant a fair hearing; 12. The learned Deputy Registrar erred in law and fact in holding that the Appellant was liable for the Respondent’s costs; 13. The learned Deputy Registrar erred in law and fact when she issued a warrant of attachment and sale of the Appellant’s properties; 14. The Appellant shall suffer substantial loss if the order for stay of execution of the orders made on 18th May 2017 is not granted pending the hearing and final determination of the appeal; 15. The Appellant has made this application without delay; 16. The Appellant is ready to abide by any reasonable conditions that may be ultimately binding upon it; 17. The Appeal is meritorious and has a high likelihood of success; and 18. It is just, fair and equitable that an order for stay of execution doth issue against the respondent pending the determination of the appeal**.** 19. The Notice of Motion was supported by the affidavit of Ms. Brigitte Kusiima, an advocate working with the M/S Shonubi, Musoke & Co. Advocates,

**BACKGROUND**

1. The background of this Appeal is that on 11th October 2016, Judgment in default of an Application for leave to appear and defend, was entered against Zyene Enterprises Limited and Pappu Sayani for payment of three billion, eight hundred forty-four million, thirty-six thousand, eight hundred thirty-five shillings (3,844,036,835/=) and the costs of the suit. A Decree was extracted and the Appellant commenced execution proceedings. The Appellant appointed Kyenda Godfrey T/A Sky Rocket Auctioneers to execute the decree. The Respondent was also appointed by the Court to execute the decree in conjunction with Kyenda Godfrey. Before execution was completed, the Respondent was discharged by the Court from further executing the decree and an order for recovery of his costs from the Judgment Debtors’ properties liable for attachment was made. The Respondent filed his Bill of Costs, which were taxed (ex parte) and allowed by the Deputy Registrar at forty one million, seven hundred sixty-five thousand shillings **(**41,765,000/=). The Respondent commenced execution proceedings against the Appellant for the recovery of the said costs, following another order made, by the Deputy Registrar on 18th May 2017, directing the Respondent to recover his costs from the Appellant.

**REPRESENTATION**

1. The Appellant was represented by Mr. Paul Kaweesi, while the Respondent was represented by Mr. Allan Kikwe. 2. Mr. Kaweesi chose to argue grounds 1 to 6 of the appeal jointly and Mr. Kikwe, in his reply also chose to argue the said grounds jointly. Grounds 7 to 11 of the appeal were abandoned.

**SUBMISSIONS BY COUNSEL**

***Arguments of the Appellant.***

1. Mr. Kaweesi submitted that the Deputy Registrar on 3rd November 2016, discharged the Respondent from continuing to effect the execution process and issued an order where the Respondent was to recover his costs from the Judgment Debtors. That the Deputy Registrar later (on 18th May 2017), issued a warrant of execution against the Appellant, for the recovery of the bailiff’s costs of 41,765,500/=. According to Counsel, the Deputy Registrar’s actions amounted to vacating the Court’s order that she made on 3rd November 2016, which meant that the Registrar was functus officio for vacating the said order. To support his argument, he referred this Court to the decisions in ***Goodman Agencies Ltd v Attorney General Constitutional Petition No. 3 of 2008, A. K. P. M Lutaaya v Attorney General Civil Reference No. 1/2007*** among others,where the Courts held inter alia that once a Court makes a decision, the same Court cannot vacate or vary that decision. 2. Mr. Kaweesi argued that even if the Court later on found it necessary for the Respondent to recover his costs from the Appellant, it should not have taxed the bill exparte, but should have rather directed the Respondent to serve the bill of costs and the taxation hearing notice on the Appellant, to enable the Appellant Company to participate in the taxation of the said bill of costs. That the failure to include the Appellant in the hearing, deprived the Appellant of its right to a fair hearing, thus making the taxation proceedings and the award a nullity. To buttress his argument, he cited the cases of ***Kampala University v National Council for Higher Education Misc. Cause No. 53/2014, Amratlal Purshottam Bhimji & Another v Gian Singh Bhambra & 3 Others HCCS No. 298/2010*** among others. 3. Counsel for the Appellant asserted that this omnibus application contained an application for stay of execution. He prayed that this Court stays execution until it determines this appeal, because the Appellant’s bailiffs had only made a partial recovery of the decretal sum, meaning that the Respondent still had an opportunity to recover his costs from the properties of the Judgment Debtors as per the order of the Deputy Registrar of 3rd November 2016.

***Arguments of the Respondent.***

1. In reply, Counsel for the Respondent opposed the Appeal, arguing that it is meritless and incompetent, because Appeals are brought to the High Court by Memorandum of Appeal as provided for by ***Order 43*** of the ***Civil Procedure Rules***. He argued that having been aggrieved by the manner in which the Respondent’s Bill of Costs was taxed, the Appellant should have appealed against the taxation under ***Section 62*** of the ***Advocates Act***, which governs appeals arising from taxation matters. 2. He further argued that the earlier order of the Court, directing the Respondent to recover his Costs from the Judgment debtors, was never vacated by the Deputy Registrar. That having discharged the Respondent from further executing the Decree, the execution was therefore left in the hands of Kyenda Godfrey and the Respondent had no means of accessing the Judgment debtors’ properties liable for attachment so as to recover his costs. That the Deputy Registrar had only exercised her discretion in directing the Respondent to recover his costs from the Appellant to enforce the Court’s earlier order, which did not specify whether the Respondent would recover his costs from the judgment debtors or judgement creditors. He asked this court to consider ***Rule 15(4)*** of the ***Judicature Court Bailiffs Rules,*** which provides that in the event of a stay of execution for whatever cause, the Court Bailiff’s Costs shall be paid by the Judgment Creditor. According to him, there was stay of execution when the Respondent was discharged from completing the execution. 3. Regarding the Appellant’s complaint about having not been given a fair hearing, Mr. Kikwe submitted that ***Regulation 54*** of the ***Advocates (Remuneration and Taxation of Costs) Regulations*** allows the taxing master to proceed to tax the bill of costs exparte in default of appearance of either or both parties, as long as the Court was satisfied that there was service of court process. 4. Concerning the Applicant’s prayer for stay of execution, Mr. Kikwe submitted that stay of execution arises where there is a pending appeal, which was not the case in the instant case, since the Appeal was being heard.

***Appellant’s Arguments in Rejoinder.***

1. In rejoinder, Mr. Kaweesi submitted that this type of application is accepted by the Courts. That an appeal from the decision of the Registrar goes to the High Court and is made by Notice of Motion. According to Counsel, ***Order 43, Rule 1*** of the ***Civil Procedure Rules*** deal with appeals from the Magistrates Courts to the High Court. 2. Mr. Kaweesi argued that ***Section 62*** of the ***Advocates Act*** is not applicable to the instant case, since this was not a Client – Advocate Bill of Costs, but rather, a Bailiff’s costs, where the applicable law was the ***Judicature (Court Bailiffs) Rules, SI 13-16***. Furthermore, Counsel contended that even if the Court found that the Deputy Registrar had properly exercised her discretion under ***Regulation 54*** of the ***Advocates (Remuneration and Taxation of Costs) Regulations,*** there was no evidence on the record of the court to prove that the Appellant was served with any taxation hearing notice. 3. He contended that the Appellant did not appeal against the bill of costs granted, because the Deputy Registrar’s order issued on 3rd November 2016, was against the Judgment Debtors and not the Creditors (Appellant). That it was the duty of an aggrieved party to appeal the bill of costs, and in this case, it was the Judgment Debtors who should have appealed against the same. He stated that since the Respondent had submitted that the order made on 3rd November 2016 was not specific on whom the Respondent was to recover his costs from, the Respondent should have appealed against the order and should not have waited for these proceedings to say that the said order was ambiguous. 4. In response to Counsel Kikwe’s submission that there was a stay of execution, which gave the Deputy Registrar the discretion to vacate the order of 3rd November 2016, Mr. Kaweesi submitted that ***Rule 15(4)*** above mentioned applies to a stay of execution, but in this case, there was no order of Court staying execution. He prayed that execution be stayed, the warrant of attachment and garnishee proceedings commenced by the Respondent be set aside, the Respondent be ordered to recover his costs against the debtors as per the earlier order of the Court, and that this appeal be allowed with costs against the Respondent.

**RESOLUTION**

1. I have considered the appeal, the record and decision of the Deputy Registrar, the submissions of Counsel and the law applicable. 2. Before I examine the grounds raised by the Appellant in this application, I will first determine the point of law raised by Mr. Kikwe, regarding the nature of pleadings in this appeal. 3. Mr. Kikwe’s contention was that the Appellant should have appealed by Memorandum of Appeal as stipulated in ***Order 43, Rule 1*** of the ***Civil Procedure Rules***, instead of appealing by Notice of Motion. According to him, the said application was incompetent and was a fatality that should not be considered by this Court. In Response, Counsel Kaweesi’s argument in reply that appeals from Registrar are brought by Notice of Motion under **Order 50, Rule 8** *of the* **Civil Procedure Rules**. 4. ***Order 43, Rule 1*** of the ***Civil Procedure Rules*** is to the effect that appeals instituted in the High Court shall be brought by Memorandum of Appeal. Section 16 of the Judicature Act provides that the High Court has appellate jurisdiction from decisions of the Magistrate Courts and subordinate Courts. Thus, appeals brought to High Court from the said courts have to be by Memorandum of Appeal. However, **Order 50, Rule 8** of the ***Civil Procedure Rules*** provides that any person aggrieved by any order of a registrar may appeal from the order to the High Court and that the appeal shall be by Notice of Motion. 5. ***Order 50, Rule 4*** of the ***Civil Procedure Rules*** provides that formal orders for attachment and sale of property and for the issue of notices to show cause on applications for arrest and imprisonment in execution of a decree of the High Court, may be made by a registrar. The Deputy Registrar of this Court on 18th May 2017, issued a warrant of execution for the recovery of the bailiff’s costs and further issued a garnishee order nisi to Stanbic Bank (U) Ltd on 23rd May 2017, to attach the Appellant’s account to answer a taxation decree. 6. The law set out in ***Order 50, Rule 8*** of the ***Civil Procedure Rules*** is specific about the procedure to be applied once one is aggrieved by a registrar’s decision, unlike ***Order 43, Rule 1***, which is concerned with appeals from Magistrate courts. Thus, this application was properly instituted in this Court. Mr. Kaweesi’s submission that ***Order 50 Rule 8*** of the ***Civil Procedure Rules*** applies to this appeal, is accurate. 7. Counsel Kikwe also complained that the appeal in this Court is omnibus, while Respondent’s response was that an omnibus application can be brought if the procedure is the same and before the same judge. To support his argument, Counsel Kaweesi cited the case of ***Kalumba Benjamin Ssebuliba & Anor V Kakira Sugar Works (1985) Limited Miscellaneous Application No. 4611 of 2014.*** Inthat case, Respondents were opposing an application to amend pleadings and at the same time to add a party. The Court held that it was perfectly in order to amend the pleadings and add a party at the same time, because it would not be necessary to file two applications as the first application automatically led to the other. In ***Mugemu Enterprises vs Uganda Breweries Ltd, Cs No. 462 Of 1991 (Unreported****),* it was held that an omnibus application is possible where the applications are of the same nature and one supersedes the other and it is for expeditious disposal of matters and for the avoidance of a multiplicity of suits. 8. In this case, the Appellant has brought two different matters in one application, namely; - an appeal against the decision of the Deputy Registrar delivered on 18th May 2017 and an application for stay of execution. The grounds to be resolved in these applications are quite different and different principles of the law are apply. The said applications cannot in the circumstances of this case, be handled as one. Also, the parties have substantially submitted on the grounds of appeal and not tackled the grounds for stay of execution, showing their inclination towards the resolution of the appeal. In any case, the determination of the grounds of the appeal will automatically resolve the entire omnibus application. 9. I will proceed to determine the appeal. It is my view upon examining the appeal, that grounds 3 and 4 of the appeal will dispose of the entire appeal. I will consider the said grounds separately.

***Ground 3 - The learned Deputy Registrar erred in law and fact when she took a decision on a matter where she was functus officio.***

1. Mr. Kaweesi faulted the Deputy Registrar for vacating her earlier decision where, she directed that the costs of execution incurred by Mr. Michael Wakou would be recovered from the Judgment Debtors’ properties liable for attachment and instead ordered that the Judgment Creditor pays the said costs. It was his opinion that in doing so, the Deputy Registrar had acted functus officio. 2. In reply, the Respondent’s Counsel stated that the Deputy Registrar’s decision for recovery of costs from the Judgment Debtor was never vacated by the Court, but that it had rather placed the burden of payment on the Applicant/ Judgment Creditor, so as to give effect to the order dated 3rd November 2016. He prayed that the Court finds that there was no order vacating the Court order of the Deputy Registrar dated 3rd November 2016. 3. Execution of judgment orders are carried out with the purpose of satisfying the Judgment Creditor and includes the realization of the bailiff’s costs incurred during execution proceedings. In ***Infinity Telecom Uganda Ltd Versus Eco Bank Uganda Ltd & Anor Miscellaneous Application No. 2129 of 2016***, the Hon. Justice Christopher Madrama Izama held that for an order or decree to be satisfied, the Judgment Creditor or an officer of the court, such as a bailiff, must force or compel the Judgment Debtor or third party such as the garnishee, using any of the modes provided for under ***Section 38 of the Civil Procedure Act*** to implement the order or decree. 4. In the present case, the costs of the Respondent, who was the bailiff were not paid and execution was not satisfied by the Court by merely stating that Mr. Michael Wakou would recover his costs from the properties liable for attachment. It was Mr. Kikwe’s assertion that since the Judgment debtors had not paid the bailiff’s bill of costs, the onus fell on the Judgement Creditor to pay the said costs, because there was a stay of execution, referring to ***Rule 15 (4)*** of the ***Judicature (Court Bailiffs) Rules Statutory Instrument 13-16*** which stipulates that if execution is prevented on a stay of execution for whatever cause, the Court bailiff’s costs, if any, shall be paid by the Judgment Creditor. 5. The record shows that the Deputy Registrar issued a warrant of execution against the Judgment Creditor on 18th May 2017, while the interim order, staying execution of the Garnishee order Nisi was issued on 23rd May 2017. The Deputy Registrar’s decision of 18th May 2017, was not based on the fact that there was any stay of execution, since her said decision was made earlier than the alleged decision that Mr. Kikwe regards as a stay of execution. I therefore find, contrary to Mr. Kikwe’s arguments, that the learned Deputy Registrar in making her order of 18th May 2017, had vacated her earlier order of 3rd November 2016, by making the Judgment Creditor liable to meeting the Bailiff’s costs amounting to 41,765,500/=. 6. The question that arises, is whether the Deputy Registrar was functus officio when she gave the subsequent order that the Judgment Creditor pays the Respondent’s Bill of Costs. In ***A. P. K. M Lutaaya vs Attorney General (supra),*** the Honourable Judges of the Supreme Court explained what the meaning of functus officio is, relying on ***Stroud’s Law Judicial Dictionary, 4th edition, volume 2, page 131 “… (3)*** where it is stated: ***An arbitrator or umpire who has made his award is functus officio, and could not by common law alter it in anyway whatsoever; he could not even correct an obvious clerical mistake.***

They also cited ***Black’s Law Dictionary, 5th edition, at page 606 –*** where it states: ***the expression functus officio means:***

1. ***A task performed*** 2. ***Having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority*.”** 3. Applying the above definitions of functus officio to the facts in that case, the Honorable Judges found that the learned single Judge did not consider the merits of the application in order to determine whether to either allow or not allow the applicant to institute an appeal out of time, but only considered whether in the absence of a sworn affidavit, the application before him was competent. That by striking out the application, he did not make a final decision on the merits and was therefore not functus officio when he considered Civil Application No. 12 of 2007, in which he was called upon to decide the merits of the Application. 4. In the instant case, Rule 9 of the Advocates (Remuneration and Taxation of Costs) Rules S. I 267 – 41 provides that a notice of the time and date of taxation is issued by the Registrar to the party who lodged the bill and a copy of the notice accompanied with the bill, shall be issued to the other person whose name is endorsed on the bill. A notice of taxation of the bill of costs was issued to the Judgment Debtors on 16th December 2016 by the learned Deputy Registrar, for the taxation hearing which was slated for 20th December 2016. An exparte judgment was subsequently entered against them. 5. In light of the definition of functus officio given in ***Black’s Law Dictionary*** (supra), it seems to me that in taxing the Bailiff’s Bill of Costs against the Judgment Debtors and ordering the Judgment Debtors to pay the said bill, the purpose of the taxation was fulfilled. The Deputy Registrar erred in unceremoniously issuing a notice to show cause why execution should not issue to the Judgment Creditor, who did not participate in the said taxation hearing. Moreover, the Respondent brought the bill of taxation of the bailiff’s costs against the Judgment Debtors and not the appellant. Thus, in my considered view, the Learned Deputy Registrar was functus officio when she ordered the Judgment Creditor to pay the bailiff’s costs of execution.

***Ground 4 - The learned Deputy Registrar erred in law and fact when she taxed the Respondent’s bill of costs in the absence of the Appellant and without according the Appellant a fair hearing.***

1. The other question for determination is whether the Appellant was entitled to a fair hearing. In***Amratlal Purshottam Bhimji & Anor v Gian Singh Bhambra & 3 Others (supra),***it was held that a decision, which affects a party, taken without according that party an opportunity to be heard in his or her defence, cannot stand, as the decision would be contrary to the rules of natural justice. Additionally, in the case of***Marko Matovu & others v Mohammed Sseviri (supra****),* it was held that *audi alteram partem* is a cardinal rule of natural justice so central to Uganda’s system of justice that it must be observed by both judicial and administrative tribunals. That where an administrative agency acts contrary to this rule, it exceeds powers conferred upon it by parliament and therefore, the decision arrived at in breach of that rule by the commission was void in the same way as a decision made without jurisdiction is a nullity. 2. In the case before this Court, the Deputy Registrar on 3rd November 2016, issued an order expressly providing that Mr. Michael Wakou would recover his costs from the properties of the Judgment Debtors liable for attachment. Consequently, taxation hearing notices were issued, addressed to the Judgment Debtors dated 16th December 2016, asking them to enter appearance on 20th December 2016, for a taxation hearing. The Judgment Debtors refused to acknowledge receipt of the same, according to the affidavit of the legal clerk and process server, a one Andrew Mulati working for M/S Wakosese Advocates. Subsequently, an exparte ruling was made and a certificate of taxation issued on 20th December 2016. ***Regulation 54*** of the ***Advocates (Remuneration and Taxation of Costs) Rules, Statutory Instrument 267-4*** provides:

*“The taxing officer shall have power to proceed to taxation ex parte in default of the appearance of either or both parties or their advocates, and to limit or extend the time for any proceedings before him or her, and for proper cause.”*

1. While the Deputy Registrar correctly exercised her power against the Judgment Debtors, she did not do so in respect of the Judgement Creditor, since there was no proof of service of any taxation hearing notice to the Judgment Creditor and yet she went ahead to order the Judgment Creditor to pay the bailiff’s bill of costs. If indeed the Judgment Creditor was liable for the costs, which is not the case in this matter, the Deputy Registrar should have initially availed the Judgment Creditor with the Bailiff’s costs of the execution not the Judgment Debtors. 2. In any case, it has already been stated above that Judgment Creditor are only liable to pay the Bailiff’s costs in the event where there has been a stay of execution for whatever cause, which is not the case here. Clearly, the Deputy Registrar wrongfully ordered the Judgment Creditor to pay the Respondent’s costs. Her order is unknown in law. 3. Be that as it may, this Court cannot ignore the fact that the Respondent is entitled to remuneration for his services as provided in ***Rule 17*** of the ***Judicature (Court Bailiffs***) ***Rules***. Sky Rocket Auctioneers in their letter dated 9th August, 2017 stated that they had placed a bonafide purchaser – Carriers (U) Ltd one of the properties under execution. This goes to show that proceeds realized from part execution have been deposited in Court. It would not be fair to the Respondent to wait for the execution process to be fully completed to receive payment for his services, since he was discharged from further participating in the said execution process. The Deputy Registrar should issue a notice to show cause why execution should not issue to the right party, the Judgment Debtors, since the Bailiff’s Bill of Costs was already taxed against them exparte. 4. This appeal is allowed and following orders are made: 5. The whole decision and orders of the Learned Deputy Registrar made on the 18th May 2017 in Civil Suit No. 022 of 2016 are set aside; 6. The warrant of attachment and sale of the Appellant’s properties issued by Learned Registrar is set aside; 7. The garnishee nisi order issued on 23rd May 2017 is set aside; 8. Each party will bear their own costs.

I so order,

Susan Okalany

**JUDGE**

30/9/2020