[1998] UGSC 32

# THE REPUBLIC OF UGANDA

## IN THE SUPREME COURT OF UGANDA

## AT MENGO

(CORAM: WAMBUZI, C. J., TSEKOOKO, J. S. C., KAROKORA, J. S. C.)

# CIVIL APPLICATION NO.32 OF 1997

### **BETWEEN**

ROKO CONSTRUCTION COMPANY :::::::::::::::::::::::: APPLICANT

AND

### UGANDA COOPERATIVE TRANSPORT UNION :::::::::::: RESPONDENT

(An application for the Court to give effect to its manifest intention in respect of order of costs in judgement dated 17/11/97 in Civil Appeal No.35 of 1995)

## THE RULING OF THE COURT

This is an application made under Rules 1, and 35 of the Rules of this Court to correct an order for costs made on 17th November, 1997 by this Court in Civil Appeal 35 of 95 between the parties to this application. We dismissed the application with costs and differed the reasons therefor. We now give our reasons.

The brief facts are that Roko Construction Company, the applicant, obtained judgement in the High Court against the Uganda Cooperative Transport Union, the respondent, in the sum of Shs.127,760,501/= as money due to the applicant under a construction contract between the parties. The respondent's appeal to this Court was allowed. The judgement of the High Court was set aside and this Court ordered a retrial. We awarded costs of the appeal to the respondent and costs in the High Court were to abide the results of the retrial.

Mr. Tumusinguzi, Counsel for the applicant, contends that the order granting costs of the appeal to the respondent was inadvertently made, in that the Court's manifest intention was not to award costs of the appeal on two grounds. Firstly, that the Court's order for retrial was based on the ground that the trial judge relied for his decision on the evidence relating to final accounts which was not subjected to cross-examination and secondly, that Counsel on both sides were not given the opportunity to address the Court on the issue of costs.

As regards the first point learned counsel submitted that failure to cross-examine on the evidence was entirely the trial judge's fault who failed to offer the opportunity to counsel to crossexamine on the evidence. Both counsel were not to blame and as this was the cause of the order for retrial, the proper order for costs was each party to bear its own costs of the appeal. Learned counsel relied on the case of Esso Standard (U) Ltd vs. Semu Amanu Opio Civil Appeal No.3/93.

Secondly, learned counsel submitted, relying on the same case, that there was failure to call on the parties to address the Court on the issue of costs. Learned counsel also cited as to the application of the slip rule, the cases of Raniga vs Jivraj 1965 EA 701 and Sewa Singh Mandia vs Republic 1966 EA 315.

It is common ground that the award of costs is discretionary. As to the relevant principles this Court said in Francis Butagira vs Deborah Namukasa 1992/3 HCB 98:

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"Under s.27 of the Civil Procedure Act the Court is given a discretion to determine by whom costs of the proceedings should be paid and the amount of such costs. The general rule is that costs shall follow the event and the successful party should not be deprived of them except for good cause. This means that the successful party is entitled to costs unless he is guilty of misconduct and or there is some other good cause for not awarding costs to him. The Court may not only consider the conduct of the party in the actual litigation but matters which led up to the litigation. ........."

In the Esso Standard case supra, this Court held in effect that costs arising out of an appeal against an award erroneously given by a judge where neither party to the dispute is at fault, should not be made against any party and that each of such party should bear its own costs. However, in that case counsel for both parties agreed that the trial judge was in error in awarding punitive damages which had not been asked for. Secondly, at the close of the case for defence there was no submission to the Court by counsel. According to the judgement of Platt, J. S. C;

"When Mr. Katera closed the defendant's company's case on 2nd April, 1992 the Court declared 'the matter is adjourned sine die as I am commencing a Criminal Session shortly.'

The next thing that happened was that judgement was delivered on 26th May 1992. It would have been proper, (see Order 16 rules 2 and 3 of the Civil Procedure Rules) and certainly wise, to have allowed the parties to address the

Court before judgement, when this contentious aspect of damages should have been put to counsel. As counsel feel that this was error on the part of the judge alone, there should be no costs awarded against them. It is therefore especially necessary to make certain that the learned judge was in error as counsel claim.'

The learned Justice of the Supreme Court found that the learned trial judge was in error and allowed the appeal in part. As to costs he said:

"I would not award any costs in this appeal on the question of exemplary damages because setting that award aside was not the fault of either party and indeed on the other items in dispute each party should bear his own costs. Both counsel asked this Court to have the decree of the High Court re-taxed and I would support that plea."

The other members of the Court agreed.

The case before us is clearly distinguishable. For the respondent it was strenuously argued in the appeal that the final accounts which were the basis of the award were introduced by one party and were not subjected to cross-examination and that this vitiated the trial. Although learned counsel for the applicant conceded that the evidence was not subjected to crossexamination, he argued that no prejudice was thereby caused as the facts leading to the conclusion had been established and that what remained was ascertainment of the amounts due.

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We held:

"The evidence on which the judge relied to award the final figure of Shs.126,760,501/= appears not have been given publicly and was not tested in cross-examination. In this case we cannot say that the evidence given to the trial judge in the absence of the appellant's counsel did not prejudice the appellant."

In these circumstances we cannot say as in the Esso case that this was entirely an error of the trial judge. The trial judge did not manufacture the accounts. They were somehow presented to the judge who relied on them in making the final award. Secondly, unlike in the Esso case the parties to the appeal in the present case defended their respective positions. One party praying that the appeal be allowed with costs and the other that the appeal be dismissed with costs. Both counsel addressed the Court on the issue of costs. We considered the submissions and made a deliberate order as to costs.

We have since looked at the case of Hamilton vs Seal (1904) 2KB 262 where Vaugam William L. J. referring to the position in common law said:

".... the Court has a discretion either to give, or to refrain from giving or to reserve costs. We have to exercise that discretion today, and, speaking for myself, although I cannot say now that there is any general rule which is to be applied, I should think that where there is an application for a new trial and the application is

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opposed and a new trial is granted, the costs of that successful application ought, in the absence of special circumstances, to be borne by those who oppose it. There is no rule to the contrary, and I propose to proceed on that footing. Therefore in this particular case I think that the costs of this application ought to be the applicant's."

In Uganda the matter is governed by statute under which still as has already been pointed out, the Court has a discretion in the matter. We are satisfied that that discretion was properly exercised and that the application before us is really seeking a review of our order and not a correction of a mistake. For those reasons we dismissed the application with costs.

Dated at Mengo this .2.6.14 day of MARCH.... 1998.

S W W WAMBUZI CHIEF JUSTICE

J W N TSEKOOKO JUSTICE OF THE SUPREME COURT

A N KAROKORA JUSTICE OF THE SUPREME COURT