[1997] UGCA 19

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM:

S. T. MANYINDO DCI., S. G. ENGWAU, J. & $F. M. S EGONDA - NTENDE, J.$

## CIVIL APPEAL NO.44 OF 1996

## **BETWEEN**

DDEGEYA TRADING STORES (U) LTD ::::::::::::::::::::::::::::::::::: **APPELLANI** $AN$ UGANDA REVENUE AUTHORITY :::::::::::::::::::::::::::::::::::: **RESPONDENT**

[Appeal from an order of the High court of Uganda sitting at Kampala [Lugayizi, J] dated 7th October, 1996 H. C Misc. Application No. 492 of 1996 arising from H. C. C. S No. 938 of 1993.1

JUDGMENT OF THE COURT.

This is an appeal against the decision of E. S Lugayizi, J, dated 7th october 1996 by which he quashed or in effect set aside, a consent order of the Registrar of the High Court in respect of the appellants bill of costs against the respondent in the High Court. The brief history of this matter is that Obadi Enterprises filed a suit in the High Court against the respondent as defendant No.1 and the appellant as defendant No.2. 1he appellant filed a counter claim against the plaintiff and respondent claiming Shs.1.2 billion in special, general and punitive damages, interest and costs of the action.

The counter claim against the plaintiff was dismissed. counter claim against the respondent was allowed only to the extent of Shs.1,000,000/= for general damages, Shs.500,000/= as punitive damages, interest and costs. The appellant on $25/7/96$ filed a bill of costs as against the respondent. The same was $% \left\vert \mathbf{r}\right\vert$ set down for hearing on the 1st August 1996. It claimed an instruction fee of Shs.15,000,0000/=, ten times the value of the $\mathsf{award}\xspace$ , $\mathsf{calculated}\xspace$ on the basis of instructions to recover $\mathsf{Shs}\xspace,1.2$ billion. The bill of costs totalled Shs.26,942,500/= excluding VAT. By consent it was allowed at shs.17,790,000/=. The respondents did not take this matter as settled. On the 8th $\,$ August 1996, they wrote to the Registrar complaining about several items in the bill of costs, consented to by their $% \left\vert \mathbf{r}\right\vert$ Counsel. They requested the Registrar to revise the bill of $\alpha$ costs. In his letter dated 12th August 1996 the Registrar declined to revise the bill of costs allowed and advised the $% \mathcal{L}_{\mathcal{A}}$ respondent to appeal. And appeal he did. The respondent filed an application in the High Court seeking to set aside the bill $% \left\vert \mathcal{L}\right\vert$ of costs as allowed on various and diverse grounds. Lugayizi, $% \left\vert \mathcal{L}\right\vert$ J., heard the application and in his own words, on $1$ th October 1996 declared the bill of costs "invalid and quashed it". He $\,$ $\mathcal{A} \mathcal{A}$ ordered the appellant to file "a fresh Bill of costs which is $% \left\vert \mathbf{r}\right\rangle$ honest and done according to Law........."

Jil.

The

The appellant was, apparently, dissatisfied with this decision. We say, apparently because later events, significant to this $\frac{1}{2}$ appeal, are inconsistent with dissatisfaction. We will return to that later.

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The appellant sought leave from the High Court to appeal to the Court of Appeal. Leave was denied. He proceeded to the Court of Appeal and leave was granted on the 18th Nov. 1996. And he subsequently lodged the present appeal.

However, this is not the end of the story. At the hearing of the Appeal, Dr. Bakibinga, Learned Counsel for the respondent passed to us from the bar, a copy of a bill of costs which the appellant, had in the meantime, notwithstanding his efforts in the Court of Appeal, filed in the High court on 14th October 1996. This bill was taxed and allowed on the 13th November 1996. The second bill of costs was presented to us to explain that the appellant had in fact realised that some of the items he had claimed in the first bill of costs were not according to law and had, in the second bill of costs, revised them.

During arguments before the court, it was pointed out to the appellant's Counsel by the court, that this amounted to approbating and reprobating the decision of the High Court. Mr. Muhwezi replied that he was entitled to act as he did to take benefit of what was due to him.

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It would appear to us that this matter is so serious that it would, regrettably, dispose of this appeal notwithstanding, firstly, that there has been some merit in some of the matters raised by Mr. Muhwezi. And secondly that this issue on which the fate of this appeal lies was not one of the grounds canvassed

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against the appeal. We therefore did not receive benefit of Learned Counsel's arguments in the matter. In light of the significance of this matter, we called for the original file to acquaint ourselves with what went on in the High Court.

On the 24th October 1996, the appellants and respondents appeared, by Counsel before the Deputy Registrar, Mr. Wangutusti, for taxation of the second bill of costs. Mr. Muhwezi stated:-"The Bill is per Order of the Judge. It is in accordance

with the Rules....................................

He then proceeded to defend particular items of the bill of costs.

It would appear to us that the appellants, by their counsel had accepted the order of Lugayizi J. and proceeded to comply with it. They filed a fresh bill of costs as ordered. Counsel fixed it for taxation. Arguments were heard and an order made by the Mr. Muhwezi would wish to treat this as Taxing Master. conditional awaiting the verdict on appeal. We are afraid this would amount to appropobating and reprobating the decision of the High Court. It amounts to a waiver of the appellants right of $\lambda \in \mathbb{R}^+$ appeal at Common Law.

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In Johnson v Newton Vine Extinguisher Company Ltd 1913 2K. B 111 the appellant had started an action in the Lower Court. An award was made in his favour but he was also ordered to pay certain costs. He accepted the award and costs were taxed. Shortly

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thereafter, he appealed from part of the Order as to costs. 0n appeal the Court of Appeal of England held that in as much as the appellant had accepted and acted upon the award he could not appeal against it. Cozens Hardy M. R. at page 113 stated:-

> "...... This point is fatal to the success of the appellant. The workman has attempted to approbate and reprobate the judgment of the learned county judge at the same time $\cdots\cdots$ "

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This same point is made in CORPUS JURIS SECUNDUM VOL.4 AT PAGE $617 :-$

> "As a general rule, acquiescence in, or recognition of, or otherwise taking an inconsistent position with reference to, a judgment, order, or decree impliedly waives the right to have it reviewed by an appellate court."

Corpus Juris Secundum is a restatement of American Law which on this particular point is, in our view, consistent with the Common Law applicable to Uganda.

Mayhem would be created if the contrary was the position. A party would be free to tie down his opponent in several different directions over the same subject matter. Similarly, public resources would be so driven or otherwise engaged without regard to the other equally and perhaps, more deserving matters, competing for attention of the Justice system. The justice

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system would be open to abuse.

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In the result we would hold that by accepting the order of the Judge with the intention of taking benefit therefrom, the appellant in this case waived his right to proceed with an appeal in this matter. We would dismiss this appeal with costs in this court.

In case we are wrong, we will proceed to consider the appeal on its merits. Ground No. 1 was to the effect that the Learned Judge misdirected himself on the application of section 84 of the Civil Procedure Act which was not pleaded but under which he set aside the taxation Order of a registrar of the High court. Dr. Bakibinga, Learned Counsel for the respondent, did not oppose, rightly in our view, this ground.

Section 84 of the Civil Procedure Act states:-

"The High Court may call for the record of any case which has been determined by any subordinate or magistrates court and if such court appears to have:-

- exercised a jurisdiction not vested in it in Law; $(a)$ $or$ - tailed to exercise a jurisdiction so vested; or $(b)$ - acted in exercise of its jurisdiction illegally $(c)$ $\overline{or}$

with material irregularity or injustice, the High Court may revise the said case and may make

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such order therein as it thinks fit".

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Provided that no such power of revision shall be exercised:-

- (i) unless the parties shall first be given the opportunity of being heard; or - (ii) where, from lapse of time or other cause, the exercise of such power would involve serious hardship to any person.

Mr. Muhwezi, Learned Counsel for the appellants, submitted that section 84 of the Civil Procedure Act was not applicable as the Registrar was not a magistrates court. We think this argument is sound. Section $84\,$ grants revisional jurisdiction to the High Court in respect of proceedings in magistrates court and formerly Subordinate Courts when they existed. Subordinate Courts were abolished by section 35 of the Magistrates Courts Act Cap.39 $\,$ which has now been replaced by the Magistrates Courts Act, Act 13 of 1970. It leaves only the Magistrates Courts in respect of which, under section 84 of the Civil Procedure Act, the High Court has revisional jurisdiction.

The Registrar, his deputy and or assistant are officers of the High Court. They are not governed by the Magistrates Courts Act when they sit as a Court. Under Order.46 Rule 4 of the Civil Procedure Rules a Registrar presides over a civil court when

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dealing with matters under Order 46 Rules 1,2, & 3 of the Civil Procedure Rules. Under the Advocates (Renumeration and taxation of costs) Rules under which the proceedings, the subject matter of this appeal, took place the Registrar or taxing officer was not a magistrates court. He proceeded to deal with the bill of costs as an officer of the High Court to which the bill of costs had been presented. We agree that the learned Judge erred in Law when he applied section 84 of the Civil Procedure Act which in the circumstances was inapplicable. We would allow this ground.

We now turn to ground No.2. It states:-

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"The Learned Judge erred in Law and in fact in setting aside the taxation order entered by consent of duly instructed counsel for the parties when the application was incompetent and conditions of setting aside a consent order were not satisfied."

Mr. Muhewezi submitted that the proper procedure available to the respondent was to apply for review of the Registrar's order under section 83 of the Civil Procedure Act and Order 42 of the Civil Procedure Rules. The application was therefore incompetent. Secondly Mr. Muhwezi submitted that a consent order would only be set aside on similar conditions that apply to set aside a contract.

He referred to the case of Brook Bond Liebig (T) Ltd v Malya [1975] EA 266 and Libyan Arab Uganda Bank for Foreign Trade and

$\frac{8}{5}$ Development vs Adam Vassiliabis supreme Court Civil Application No.14 of 1991 (unreported).

Dr. Bakibinga for the respondent submitted in reply that that application was competent before the Judge as it complied with 0.46 Rule 8 of the Civil Procedure Rules. It was brought by notice of motion and it was to set aside the bill of costs invoking the inherent jurisdiction of the court. He further argued that though there may have been some irregularities these were curable. He stated that the consent order was tainted with illegality as the bill of costs did not comply with the Advocates (Renumeration and Taxation of costs) Rules. It did not comply with Rule 45 of the said Rules. The Rules intended no undue hardship or injustice to be inflicted on the parties. The Registrar should have satisfied himself that the proposed consent order complied with the Rules before he made the order. He referred to Order 46 Rule 2 of the Civil Procedure rules and argued that the Registrar had discretion in the matter.

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We agree that according to the Libyan Arab Uganda for Foreign Trade and Development v Adam Vassiliadis Supreme Court Civil Application No 14. of 1991 and Brook Bond Liebig (T) Ltd v Malya [1975] E. A. 266, in order to set aside a consent Order, the proper procedure is either by bringing an application to set aside the consent order in the same suit or by a fresh suit. In the instant case, inspite of the litany of blunders by the respondents' Advocates there was an application to set aside the consent order filed in the same suit in the High Court. The

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application was competently brought in the same suit in the High Court.

We now turn to the merits of the application. The application $% \left\vert \mathcal{A}\right\vert$ was stated to be brought under section $10\, \mathrm{l}$ of the Civil Procedure Act and Order 48 Rule 1 of the Civil Procedures. It sought to set aside a consent order in respect of a taxation of the $\frac{1}{2}$ appellants bill of costs in High Court. In Brooke Bond Liebig (T) Ltd v Malya 1975 E. A 265 Law, Ag P., reterred with approval to a passage from Seton of Judgments and Orders, 7th Ed. Vol.1 p. 124 which had earlier on been approved in Hiran's v Kassam $(1952)$ , 19 E. A. C. A 131. It states:-

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"Prima tacie, any order made in the presence and with the consent of Counsel is binding on all parties to the proceedings or action, and on those claiming under them ..... and cannot be varied or discharged unless obtained by traud or collusion, or by an agreement contrary to the policy of the court .... or if consent was given without sufficient material facts, or in misapprehension or in ignorance of material facts, or in general for a reason which would enable the court to set aside an agreement."

We accept that statement of the Law in regard to this area. $1t$ would appear to us that grounds $1, 2$ , and 3 in the notice of motion do not fall anywhere near the grounds upon which a consent order could be set aside. They do not purport to allege any of

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the matters set out above i.e .... fraud, collusion, agreement contrary to policy of court, mistake of fact; or other reason that would enable court to set aside an agreement. Grounds 4(b) and 5, however, raise the issue of the consent order being contrary to the policy of the court, interests of justice and public policy.

The policy of the court is, inter alia, to ensure that all people have reasonable access to the courts and in particular that costs do not rise to such a level as would only allow the wealthy and extremely privileged to have access to the justice system. It was noted in Attorney General v Uganda Blanket Manufacturers (1973) Ltd Supreme Court Civil Application No.17 of 1993 (unreported) by Odoki J. S. C. (as he then was) that..........

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"While a successful litigant ought to be fairly reimbursed the costs he has had to incur, a taxing officer has a duty to the public to see that costs do not rise to above a reasonable level so as to deprive access to court to all but the wealthy. However the general level of renumeration of advocates must be such as to attract worthy Advocates to the profession. There must be as far as it is practicable consistence in the awards in order to do justice between one person and another and so that a person contemplating litigation can be advised by his Advocate very approximately what, for the kind of case contemplated, is likely to be his potential liability in costs..."

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## [Emphasis is mine].

It would appear to us that the taxing officer in this case did not discharge this duty owed to the public. We are aware that all he did was record a consent order which he was tree to do. But this ought to have been viewed in light of his duty to the public.

Instruction tees in the High Court are governed by sixth schedule to the Advocates (Remuneration and taxation of costs) Rules, 1982 as amended by S.1 No.3 of 1996. It is to be derived from the value of the subject matter determined from the amount claimed or the judgement, by the application of a sliding scale. It is the value of the subject matter that is crucial here and this may be determined by the amount claimed or the judgment. In the case before us the amount claimed was appromaxitely shs.1.2 billion. In the judgment the appellant obtained only Shs.1,500,000/= plus interest and costs. The value of the subject matter could not be Shs.1.2 billion. The judgment had determined it to be Shs.1,500,000/= only. It is not for a party to use whatever figure he may fancy in his pleading, otherwise it would be open to abuse, as we think occurred in this case. The value of the appellants claim was found to be Shs.1,500,000/=. It is this tigure that can be the only basis for determining instruction tees. To allow a tigure of Shs. $1,341,500/$ as instruction fee over a claim whose value is only about a tifth of the instructions tees would lead to setting litigation costs beyond all but the extremely very wealthy and privileged and thus

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restricting access to the courts contrary to the policy of the court. The sum allowed for taxation, even though by consent, is so manifestly excessive and contrary to the policy of the court that it is justifiable to set aside the consent order allowing it. If maintained, it may well lead to the legal profession being looked at by public as vultures rather than Honourable officers of the court. It cannot stand. We would set the consent order aside

Ground No.3 was that the Learned trial Judge erred in Law and in fact in holding that the Registrar of the High Court acted with injustice when he entered a consent order based on the value of the claim in the suit instead of the award in the judgement.

It is not necessary to deal with this ground, as it appears to us to be a repetition of the tirst ground in so far as the trial judge held so, applying S.84 of the Civil Procedure Act which we have already tound inapplicable. However, there is no doubt in our mind that the bill of costs as consented to by the Advocates of the parties was definitely unjust to the respondent. We cannot understand how a prudent Advocate, in this case the Advocate for the respondent, could have consented to such a bill of costs!

Ground No.4 was to the effect that the Learned trial Judge erred in fact and in Law and was biased in attacking the consent award and several items in the bill which was proper and not disputed.

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Mr. Muhwezi submitted that the Judge below, was biased because he attacked as highly exaggerated or bogus items in his ruling which had not been complained of by the respondents.' We do not think this can be evidence of bias. As Mr. Bakibinga pointed out, in deference to the Judges ruling, the appellant had indeed in his subsequent bill of costs changed some of the items. Items 1,2,3,4 and 6 of the new bill of costs were altered downwards and these would correspond to items 2,3,4,5,6 and 8 of the old bill of costs. There is no merit in this ground. And it is a most unfortunate charge to raise against a Judge.

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The bill of costs as presented was not only manifestly excessive but it did not comply with Rule 45 of the Advocates (Remuneration and taxation of costs) Rules. The Judge was correct to point out these anomalies if for no other reason but the education of Counsel who appeared oblivious to the several breaches.

Ground No.5 was to effect that the learned trial Judge erred in Law and fact in awarding costs against the appellant. This ground was conceded by Mr. Bakibinga. In his application he had prayed that each party bears its own costs. Though a court had discretion in the matter, and ordinarily, costs follow the event, where the parties have agreed to bear their own costs, it should be left at that, unless there are cogent reasons for holding otherwise. The learned Judge did not provide any. We would allow this ground.

All in all, having arrived at the conclusion We did earlier on

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that the appellant waived his right to appeal, We would dismiss withis appeal with costs in this court.

Date at Kampala this ... 21^St<br>day of February....1997

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Mayinds<br>S. T. Manyindo<br>Deputz chief Justice

$S. G. Engwau$

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F. A. S. Egonda. Ntende<br>JUDGE.