[2025] UGHCLD 88

# **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

# **(LAND DIVISION)**

#### **MISCELLENEAOUS APPLICATION NO. 2635 OF 2024**

#### **(ARISING FROM TAXATION APPLICATION NO.261 OF 2024)**

# **(ARISING FROM MISCELLENEAOUS APPLICATION NO.614 OF 2024)**

#### **(ARISING FROM CIVIL SUIT NO. 0305 OF 2020)**

**KATWESIGE WINSTON MUNTUKWONKA ::::::::::::: APPLICANT**

#### **VERSUS**

**NKOSI CAPITAL LTD :::::::::::::::::::::::::::::::::::::: RESPONDENT**

# **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA RULING**

#### **Introduction;**

1. This was an application by way of Notice of motion brought under Section 82 and 98 of the Civil Procedure Act Cap 71, Section 33 of the Judicature Act, Order 46 Rules (1) (2) (4) & (8), Order 25 Rule 1, Order 50 rule 3 & 8, Order 52 Rule 1 & 2 of The Civil Procedure Rules SI 71-1, for orders that: -,

- i) The ruling and order of Justice Naluzze Aisha Batala delivered in Miscellaneous Application No. 614 of 2024 on 21st June 2024 be reviewed, amended and corrected to provide for **"costs of that withdrawn main Civil Suit No. 305 of 2020 payable to the Applicant/8th defendant by the plaintiff/Respondent."** - ii) The Bill of costs dated 18th July 2024 and the extracted order were properly filed in Court and the ruling and all orders dated 25th September 2024 issued by the Assistant Registrar expunging the same from Court record as well as dismissing Taxation Application No. 0261 of 2024 be set aside. - iii)The Court issues any other order deemed necessary. - iv) The costs of this application be provided for.

# **Background;**

2. The Applicant was sued as the 8th Defendant in Civil Suit No. 305 of 2020, which was later withdrawn by the Plaintiff via Misc. Application No. 614 of 2024. The ruling allowed the withdrawal but was silent on the issue of costs in regards to the main suit. The Applicant contends that the omission to pronounce on costs constitutes an error apparent on the face of the record, and that

the Assistant Registrar's later decision to expunge the extracted order and dismiss the taxation application was also made in error thus the instant application to review the said orders.

#### *Applicant's evidence;*

- 3. The application is supported by an affidavit in support deponed by Mr. **KATWESIGE WINSTON MUNTUKWONKA**, the Applicant which briefly states as follows; - i) That the Respondent as a plaintiff wrongly sued me vide Civil Suit No. 305 of 2020 and I incurred heavy costs in defending the said suit for the last four years. On 21st June 2024, this Honourable Court delivered a ruling on ECCMIS system in which it declared that Civil Suit No. 305 of 2020 stood withdrawn against me without any terms as to my costs which I incurred in defending the said suit. - ii) That I have meticulously perused the said ruling of Hon. Justice Naluzze Aisha Batala and found out that there is a grave error apparent on the face of the Court record and the Learned Judge's ruling to have permitted the withdrawal of the said suit and inadvertently omitted to pronounce it self on the issue of awarding me costs.

- iii)That if the Learned Trial Judge had indeed intended to award no costs in the main suit, she ought to have phrased it clearly that there was no order as to costs like she did it in respect of the Respondent's Miscellaneous Application No. 614 of 2024. That the ruling and orders are in effect causing me to lose my costs incurred in defending the main suit in contravention of Order 25 Rule 1(2) of the Civil Procedure Rules and Section 27 (1) of the Civil Procedure Act which is to the effect that upon withdrawal of the suit, costs shall be paid following the event. - iv) That the said omissions and errors are serious and likely to cause me a miscarriage of justice and therefore is sufficient cause deserving review of the ruling and order of 21st June 2024 permitting the withdrawal of the said suit, I became a successful party lawfully entitled to costs and I extracted the withdrawal order and filed my bill of costs on 18th July 2024. - v) That on 25th September 2024 when Taxation Application No. 0261 of 2024 came up for hearing, counsel for the Respondent objected to the extracted order which he claimed had inventions imposing costs against the Respondent and the Learned Assistant Registrar expunged the entire

extracted order from Court record and also dismissed my entire extracted order from Court record and also dismissed my entire extracted order from Court record and also dismissed my entire taxation application No. 0261 of 2024 with costs to the Respondent.

- vi) That the Learned Assistant Registrar erroneously dismissed the extracted order and my entire application No. 261 of 2024 that followed the event of being successful in the withdrawn Civil Suit No. 305 of 2020 from which both of them were arising and based on. - vii) That the Learned Assistant Registrar failed to exercise his discretion judicially and awarded costs against me in respect of his own approved order which was a mistake of himself as a judicial officer to sign such an order without proof reading it along with the ruling. - viii) That it is just and equitable that the Learned Trial Judge's said ruling and order dated 21st June 2024 be reviewed only as far as it irregularly permits withdrawal of the plaintiff's suit without catering for my costs of the main suit and the Learned Assistant Registrar's orders dated 25th

September 2024 dismissing my taxation Application No. 0261 of 2024 be rescinded.

#### *Respondent's evidence;*

- 4. The application is responded to by an affidavit in reply deponed by Mr. **PATRICK KATTO,** the respondent which briefly states as follows; - i) That there has been no judicial determination that the Applicant/8th Defendant had been wrongly sued in HCCS No. 305 of 2020. The ruling in respect of MA No. 614 of 2024 wherein Court granted the then Applicant being Nkosi Capital Ltd a prayer to withdraw the suit but with no order as to costs. - ii) That in MA No. 614 of 2024 there was no issue for Court to determine pertaining to award of costs in HCCS No. 305 of 2020. The Applicant frustrated his own entitlement to the said costs when he challenged the withdrawal of HCCS No. 305 of 2020 on 21st January 2024 but resolved in MA No.614 of 2024.

- iii)The order was not extracted in compliance with the mandatory procedure under the Civil Produce Rules and it was expunged from the High Court record and recalled on 26th August 2024 by His Worship Kagoda Samuel Ntende Moses, for forging and presenting purported orders which did not match the actual orders issued under MA No. 614 of 2024 by the Honourable Trial Court. The Applicant/8th Defendant concealed the fact that he himself had drawn the order and misleading the Deputy Registrar, on the face of the order, that it had been drawn by Katongole & Co. Advocates - iv) That the claim that the mere appending of the signature converted the order into "a mistake of himself as a judicial officer to sign such an order without proof reading it along with the ruling". - v) That there has been no single sitting where the Applicant /8th Defendant has been defending the main suit, his written statement of defence which was filed out of time has never been sanctioned by Court or the Respondent. - vi) The Applicant/8th Defendant has neither evidenced which part of the decision-making process by the Honourable Trial judge was irregular. The Applicant/ 8th Defendant is

concealing the fact that the order was not properly derived from MA No. 614 of 2024 decision both as to the procedure and content. That in reply to the entire Application, the Respondent followed the M. A No. 2748 of 2023 of 15th January, 2024 orders to serve the Applicant the notice of withdrawal which was filed on ECCMIS on 18th January, 2024 but objected to on 21st January 2024 thereby necessitating the filing of MA No. 614 of 2024.

#### *Representation;*

- 5. The applicant was represented by Counsel Arthur Katongole of M/S Katongole & Co. Advocates whereas the respondent was represented by Counse Muyanja Jimmy of M/S Muyanja & Associates, Advocates, Solicitors & legal consultants. - 6. Both parties filed their affidavits and submissions which I have considered in the determination of this application.

# *Issues for determination;*

- i) Whether the application discloses grounds for review? - ii) Whether the Assistant Registrar's Orders should be set aside?

# *Resolution and determination of the issues;*

#### **Whether the application discloses grounds for review?**

- 7. Before I delve into the merits of the application, I will handle the preliminary objection as raised by the Applicant. The applicant contends that the Respondent's affidavit in reply was filed out of the statutory timelines. That the Application was served on 29th January 2025 and the Respondent filed an affidavit in reply on 19th February 2025, 6 days out of the statutory time but never filed an application for leave to extend time within which to file the affidavit nor did he seek leave to validate the same before Court thus the same ought to be struck out. - 8. The Respondent on the other hand relied on the provisions of Order 12 rule 3 of the Civil Procedure Rules to state that the said timelines only apply to conference scheduling which has never happened in this instant case. That Order 46 of the Civil Procedure Rules which is the basis of this review application does not provide the deadline for filing reply affidavits. - 9. The principle of the law is that an affidavit in reply being evidence rather than a pleading in stricto sensu should be filed and served on the adverse party within a reasonable time before the date fixed for hearing, time sufficient to allow that adverse party a fair opportunity to respond. *(See; Dr. Lam Lagoro*

#### *James v Muni University HCMC No. 007 of 2016)* - 10. This Court notes that however much the affidavit in reply was filed out of the 15 days' timeline as prescribed, the applicant had the opportunity to respond to the contents therein when he filed an affidavit in rejoinder. I note that the Applicant was not prejudiced in any way therefore in the interest of justice, I overrule the preliminary objection and proceed to the merits of the application. - 11. Section 82 of the Civil Procedure Act provides for review where there is a mistake or error apparent on the face of the record, or for any other sufficient reason. Order 46 rules 1 of *The Civil Procedure Rules*, empowers this court to review its own decisions where the error is apparent on the face of the record. The error or omission must be self-evident and should not require an elaborate argument to be established. According to the decision in *Attorney General and another v. James Mark Kamoga and another, S. C. Civil Appeal No. 8 of 2004* the power extends to Orders of the Registrar. - 12. The core of this application is that whilst the withdraw of HCCS No. 305 of 2020 as against the Applicant by the Respondent, the Trial Court omitted/ did not pronounce it self on costs. Section 27 (2) of The Civil Procedure Act provides that

costs of any action, cause or other matter or issue shall follow the event unless the Court or judge shall for a good reason otherwise order*. (See; Jenniffer Behange & 2 others v School Outfitters Ltd CACA No. 53 of 1999)*

- 13. The same section under subsection (1) provides that costs are awarded at the discretion of the court, and the court may determine by whom and to what extent the costs shall be paid, but the discretion must be exercised judiciously and not quixotically. **(See; Makula International v Cardinal Nsubuga [1982] HCB 11])** - 14. Whereas, withdraw of suits is governed by Order 25 of the Civil Procedure rules which must be read and applied together with Section 27 of the Civil Procedure Act. Rule 1 provides that *"the plaintiff may at any time before the delivery of the defendant's defence, or after the receipt of that defence before taking any other proceedings in the suit (except any application in chambers) by notice in writing wholly discontinue his or her suit against all or any of the defendants or withdraw any part or parts of his or her alleged cause of complaint, and thereupon he or she shall pay the defendant's costs of the suit, or if the suit is*

*not wholly discontinued the costs occasioned by the matter so withdrawn. Upon filing of the notice of discontinuance the costs shall be taxed, but the discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action"*

15. The Respondent on 18th January, 2024, filed a notice of withdraw of the suit against the Applicant/8th Respondent which was challenged by the Applicant on grounds that the Respondent ought to have filed a formal application by Chamber summons seeking leave to withdraw HCCS No. 305 of 2020 and the Respondent subsequently filed HCMA No. 614 of 2024 where Court made the order as below;

*"Therefore, the instant application succeeds with orders that Civil Suit No. 305 of 2020 stands withdrawn by the Applicant/plaintiff against the Respondent/8th Defendant with no orders as to costs of this application"*

16. It is quite clear that the Court did not pronounce it self on the issue of costs and the omission of a pronouncement on costs, in the context of a withdrawn suit, constitutes such an error.

17. The general principle is that the person responsible for the loss or costs is the one to bear the burden of payment **(see**

### *Wilkinson v. Wilkinson [1958] 2 All E. R. 179, at 192***).**

- 18. Whereas it is trite that the successful party is entitled to costs unless otherwise provided for in the judgment or ruling. In this case, the court's ruling on the withdrawal was silent on the issue of costs, unlike the specific "no order as to costs" made in respect of Misc. Application No. 614 of 2024 itself. - 19. Court may review its judgment where it is manifest that the party is suffering injustice due to a legal error or omission. The Applicant was, in law, entitled to costs upon withdrawal of the main suit. - 20. The omission of costs in respect of Civil Suit No. 305 of 2020 is inconsistent with settled legal principles and gives rise to a miscarriage of justice. It is a legal error that warrants correction thus court accordingly finds sufficient ground for review.

#### **Issue Two**

# **Whether the Assistant Registrar's Orders should be set aside?**

21. The Assistant Registrar dismissed Taxation Application No. 0261 of 2024 and expunged the extracted order on grounds that

it was irregularly obtained and misrepresented the original ruling. The Orders in the ruling were;

*"Therefore, the instant application succeeds with orders that; Civil Suit No. 305 of 2020 stands withdrawn by the Applicant/plaintiff against the Respondent/8th Defendant with no orders as to costs of this Application"*

- 22. On the other hand, the order extracted by the Applicant states; - **a) Civil Suit No. 305 of 2020 stands withdrawn subject to the plaintiff's liability for costs of the 8th Defendant's actions.** - **b) There is no order as to the costs of the Miscellaneous Application No. 614 of 2024.** - 23. It is quite evident that the terms in the Court order are at variance with the ruling from which it was extracted and the Applicant used the said order to file Taxation Application No. 0261 of 2024. The Applicant prepared the extracted order, and there were inconsistencies regarding the issue of costs and the omission on costs originated from the main ruling thus could not be provided for in the order.

- 24. The Assistant Registrar's actions, were well-intentioned since the Applicant could not maintain the Application based on an irregular order which clearly contradicted with the orders in the ruling from which it was extracted. - 25. An order or decree must strictly conform to the judgement or ruling. If it contradicts or departs from it, it undermines judicial authority and compromises the integrity of the legal process. This is aimed at maintaining coherence between judicial reasoning and judicial command. Therefore, such decree or order is a nullity to the extent of the inconsistency. - 26. It is not in dispute that the order relied upon by the Applicant did not reflect the terms of the actual ruling vide HCMA No. 614 of 2024. The Applicant was attempting to claim costs based on a relief that was granted but this Court did not pronounce it self on the issue of costs. - 27. This justifies the dismissal of the taxation application by the Learned Registrar since an invalid or irregular order cannot form a lawful basis of an application for taxation. - 28. The principle is **"quod nullum est, nullum producit effectum"** meaning; that which is a nullity produces no effect. The order itself was a nullity owing to the variations thus

rendering the taxation application incompetent ab intio. The Learned Registrar correctly treated the application as fatally flawed and dismissing the same was to preserve the sanctity of the original ruling as well as prevent the abuse of process by granting costs that were not lawfully awarded.

29. Had the applicant been dissatisfied with the orders in the ruling, the proper recourse would have been to apply for review but not altering the orders in the extracted Court order and proceed to act on the same well aware of its defect. This Court finds no reason to set aside the orders dismissing Taxation Application No. 261 of 2024 and expunging the defunct/obsolete order off Court record as well as recalling the same.

The Applicant is hereby advised to extract a new order in sync with the orders in this application herein.

30. In light of the above, the application is allowed on the following terms:

The ruling and order in Misc. Application No. 614 of 2024 are hereby reviewed to include that:

i) Civil Suit No. 305 of 2020 is withdrawn with costs to the 8th Defendant/Applicant.

- ii) The orders of the Assistant Registrar dated 25th September 2024 expunging the extracted order and dismissing Taxation Application No. 0261 of 2024 are hereby upheld. - iii)The Applicant files a new application for taxation and a fresh bill of costs to be taxed on its merits. - iv) The costs of this application are awarded to the Applicant.

## **I SO ORDER.**


### **NALUZZE AISHA BATALA**

### **Ag. JUDGE**

#### **13 th/06/2025**

#### **Delivered electronically via ECCMIS on the 13 th day of June**

### **2025.**