[2009] UGCA 68

## THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL UGANDA

### **AT KAMPALA**

#### **Hon Mr. Justice A. Twinomujuni, JA** Coram. Hon Lady Justice C. N. B Kitumba, JA Hon Mr. Justice A. S. Nshimye, JA

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#### CIVIL APPEAL No. 21 OF 2006 [APPEAL ARISING FROM HIGH COURT MBARARA CV-MA 54/2005]

#### **BETWEEN**

### ROSEMARY RWABAJUNGU

(LEGAL REPRESENTATIVE OF THE LATE E. RWABAJUNGU) ::::::::: APPELLANT

#### $25$

#### AND

## (1) GEORGE GERMANY (2) FRANCIS BEHUTA **[::::::::::: RESPONDENTS**

#### 30

#### **JUDGMENT OF A S. NSHIMYE, JA**

This appeal arises from a decision of the High Court dated 1^st September 2005, presided over by His Lordship Justice P. K. 35 Mugamba sitting in Mbarara.

The appellant is a widow and legal representative of the late Eldad Rwabajungu who was the 2^nd defendant in the original civil suit No. $14/1996.$

The two respondents, were the plaintiffs in the above suit, fbr themselves and in their representative capacities as parents of rr (eleven) students who perished in a traffic road accident.

- The late Eldad Rwabajungu was an equitable owner of one of the vehicles that caused the accident mentioned above, while the Registered Trustees of Mbarara Dioceses were the rt defendant and owners of the second vehicle in which the deceased students and others were traveling. It) - l:i

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## The brief history of the case:

About rro students of Kitabi Seminary were traveling on a lorry Reg UPL 8tg belonging to the then rt defendant. They were returning from a foot ball match at Nyamitanga. Allegedly, due to the 20 negligence of one driver or both drivers, it collided with another lorry UPE Zo8. The z,d defendant (late husband of the appellant) had acquired it through a UCB loan, at Ishaka branch of the bank. .{s ^a result tr students died. A representative suit for damages was filed by both respondents under Law Reform Miscellaneous Provisions) 2s Act Cap 79. They prayed for both general and special damages plus

costs of the suit.

The respondents later realized that Uganda Commercial Bank, thc registered owner of the znd lorry was not a party to thc suit. They,

through their lawyers, filed an application by motion, for leave to -10

⁵ amend the plaint on 26.5.98, to introduce Uganda Commercial Bank Ltd the successor of UCB, as 3rd defendant.

Paragraphs 4, 12, tS of the proposed amended plaint stated as follows:

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- The 3"d defendant is a financial institution transacting in tranking business in Uganda having taken over the management, assets and liabilities of the former Uganda Commercial Bank. It is therefore being sucd in that capacilv of successor to Uganda Commercial Bank. 4 - 12. The said Tata lorry had been obtained on a loan from Uganda Commercial Bank Ishaka Branch and was still registered in the names of Uganda Commercial Bank who had financed the 2nd defendant, had physical possession of the same and controlled its daily transactions as the bonafide owner. - r3 The 2nd f grd defendant's lorry collided with the r"t defendant's lorry at the height of violent momentum.

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s The application to amend came up for hearing before Justice V. R Kagaba. Mr Tumwesigye Charles appeared for the 2',d respondent (Eldad Rwabajungu) and told court that he was also holding brief for Mr. Mwene Kahima for Uganda Commercial Bank. He raised ^a preliminary objection that the present respondents were time barred l0 to join either Uganda Commercial Bank or its successor Uganda Commercial Bank Limited. The objection was sustained and the application was dismissed with costs.

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l5 A bill of costs for the 2nd respondent then, was filed, taxed and allowed at shs 9o9ooo/= by the Deputy Registrar, Mr. Namundi Godfrey, on27.4.2ooo.

20 The late husband of the appellant, sought to recover the said money, but was advised to wait until the main suit would be disposed of. The main suit was heard and dismissed by Justice P. K. Mr-rgamba 2.2.2oo4. He ordered each party to bear its own costs.

When the appellant went back to claim her taxed costs, the Registrar ruled that they were not recoverable because they were affected by the order of thejudge that each party should bear its own costs.

The appellant being dissatisfied, appealed to Justice P. K Mugamba by way of reference. The Iearned judge dismissed the appeal and upheld the Registrar's holding that, the taxed costs in the interlocutory application for amendment which was dismissed were not recoverable, hence this appeal.

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There are two grounds of appeal namely:

(r)The Leanted. Judge grossly erred. in lqw o,nd misconstrued the lanu when he held thg,t the "costs order" qwsrded in the interlocutorg rrl.o,tter wos subsequently rernoued by orclers in the final judgrnent which directed each party to besr its toon costs.

(z) The learned jud.ge erted in purporting to set sside ett order thst hsd not been lawfuIly challenged crnd the decision constinrted c gross rniscarriage of justice cs it denied the appellant her swg,rd.

In joint conferencing notes, both counsel agreed on the follouing issues to be resolved by this court.

(t) Whether the appellant is enritled to costs of an interlocutora tnqtter erno,nating frorn a moin suil which is tcinted with an illegalita (is barred by Iimitction) and is subsequently dismissecl.

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(z) Whether the leo'rned triol judge exercised his discretion judiciously in deciding the appellant's appeal.

# G) Whether the leo'rned trial judge's decisfon constituted a miscorriage of justice to the o,ppello,nt.

Both counsel preferred not to address us when the appeal came up for hearing. They relied on their conferencing notes.

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Counsel for the appellant argued that, the preliminary objection that led to the dismissal of the respondent's application for amendment of their pleadings was raised by counsel for the appellant (herein). That the Court's order as to the award of costs is very clear. He submitted that no appeal or review process has even been preferred against the said order . In his submission, the order given by the Hon Justice V. R Kagaba on zzfzfzoo6 was clear. The subsequent orders in the

l5 main suit delivered by the Hon Justice P. K. Mugamba on zlzlzoo4 that each party bears own costs, were not retrospective in any sense. He concluded that the costs subject of this appeal were not " in the

cause" but specifically awarded.

He referred us to page 38t of Odger's Principles of pleadings and Practice in the High Court of Justice by DB Carson and H Dennis 22nd Edition in which it was stated in the last paragraph that

⁵ " where costs cre ordered. in interlocutory tnatters uhich are not appeded against, the judge at the trial has no potuer to uary such ord.er"

l0 Counsel went on to assert that the costs were lau,{ully awarded. In his vieu', denying the appellant her property causes injustice ls that award has never been lauflrlly challenged.

Lastly, he referred us to the case of Mukula tnternational Ltd VS

# 15 His Eminence Cardinal Nsubusa & another I rs8z] HCB rr ( holding rr& 16 where it was statecl that

"The Court would have no residual or inherent jurisdiction to set aside the costs order, the subject of this appeal, when no process for its setting aside is before it".

He prayed that the appeal be allowed, the orders of the High Court denying the appellant the costs earlier awarded to her be set aside with costs of this appeal and in the High Court.

In reply, counsel for the respondents contended that the holding in the main suit that each party bears its costs affected the costs awarded in the interlocutory matter because of the peculiar circumstances of the matter.

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- ⁵ Secondly, he submitted that since the costs were premised on a suit that was time barred, the appellant was not entitled to the costs of an interlocutory matter. - l0 Thirdly, he submitted that much as no appeal or revieu' process had been preferred, the said order could not be left to stand in so for far as it was premised on an incompetent suit, which itself was barred by limitation and once the above fact was made known to the iudge, it superseded the other procedure niceties. - 15 He also rcferred us to Mukula International LTD V H. E Cardinal Nsubuga & Another (supra), Francis Butangira V Debora H Namukasa Civil Appeal No. 6 of t989, Jan Muhammed V Twenthsche Ttgzz] EA a8 and Mulla On Code of Civil Procedure rzth Ed. rs.

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After hearing and appraising the record of the Lower court, and considering the submissions of both counsel including authorities referred to us, I proceed to dispose ofthe agreed issues.

# 25 Issue one.

Whether the appellant is entitled to costs of an interlocutory matter emanating from a main suit which is tainted with an illegality is barred by limitation and is subsequently dismissed.

-.10 ⁵ Before I resolve the above issue, it is necessary to reproduce what transpired in the lower court on the day the application was heard.

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| | " Mr Kahungufor the appltcants present. | |-----|-------------------------------------------------------------| | | Mr. Tumwesigyefor the second | | It) | Represent - all parties absent. | | | Mr. Tumwine: Court Clerk | | | Mr. Tutnwesigge: | | | I also hold the brief for Mr. Mwene Kahima counselfor | | | UCB @"a defendant). | | l5 | | | | Mr. Ko'hungu: | | | I object to Mr. Tumwesigye holding brieJ'Jbr Mr. Mwene | | | Kahima. Mr. Mwene Kahima fs in Court. | | 20 | Mr. Mwene Kahima. | | | I can notu oppeor in my own right since I am now | | | present. As I ftled the plaint, it is dfficult for me to | | | represent the second defendant in the same case where I | | | laint. I am therelot'e uithdratuinct fi'ont<br>filed the p | | l5 | conductinct the case. Mr. ?wnwesique i,ill hencetorth, | | | (uulerlirtirttl r.s nr inc)<br>reDresent both clelbnclcuis. | | | | | | Mr. Kahungu. | | | I haue no objection to Mr. Tumwesigye representing both | | 30 | defendants. | | | Mr. Tutnuesigge |

5 l0 I haue a point of law which will dispose of the whole application. My point of lew, is that, the intended arnendntent will be of no eJJbct because the party intended to be joined, the UCB cannot be sued at this stage. UCB is a scheduled corporcttion and it wes when the cause of qction arose. According to the amended plaint, dated zz/z/t998, the UCB was already a scheduled corporation.

> According to section z of the Ciutl ProcedtLre and Limitqtion (Miscellaneous Prouisions) t969. UCB should haue been sued within one year -from the dqte of the cause of action arose.

In tgg7, UCB became UCBL loosing the former protected stcfus. That was ouer three years since the cause of action qrose. Euen if the plaintiff said he was suing UCBL- the Limitation Act would stand in his way. The provision to section 4 of the Limitation Act subsdfufes three years tnstead of six Aears in case where damages qre claimed arising from negligence. Whateuer latu is applied the claim against the second defendant UCB is time barred. It would serue no purpose to allow this application to enable the applicant to join a party who can not be joined at this stage. I pray that this application for amending the plaint be dismissed with costs to the respond.ent.

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# ⁵ Mr. Kahungu:

The objection is premature. This issue whether there is a cause of ectton to justifu the joining of UCB as a codefendqnt. It is our submission, that the obiectiott shorrld be brought at the msin trial.

The limitation period referred to by counsel is not applicable fo thrs case. The cause of action is founded on tort.

The period of limitation is sr-x yecrs. Ihis suit uas filed against two owners of uehicles which were inuolued in the accident. The second defendant, was intended to be an ogent of the third defendant. The second defendant has the physical ownership but the legal ownership was still uested in the UCB. UCB lost their protected status when it became a priuate compony. This UCBL as third defendant con not claim the protection of the UCB prior 1997. The Ciuil Procedure and Limitation (Misc. Prouisions) Act, tg69 is not applicable. The suit uasfiled by an Aduocate. The objection ts premattLre. The UCBL is not protected by the Act 20/69. Our application re-fers to UCBL Ltd but the amended plaint refers to [Jganda Commercial Bank. This small irregularity was caused by an ouersight. It csn be corrected (sic). t5 20 t5

jo Court:

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'fhe court wtll giue its rultng on notice to the Aduocates.

V. R. Kagaba Judge 24/11Igg"

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His lordship Justice Kagaba upheld the objection and dismissed the application to amend to include UCBL with costs. These are the costs, the subject ofthis appeal.

l5 20 The question in my considered view is whether the late husband of the appellant was lawfully entitled to the costs which were awarded. It is clear from the above court record that n'hen the application came up for hearing, Mr. Tumwesigye purported to be holding brief for Mr. Mwene Kahima the advocate for UCBL. Because of professional prudence, Mr. Mwene Kahima opted out of the case becanse, he is the one who prepared the plaint in the first insttrnce. He suggested that Mr. Tumwesigye could represent his then client, the late husband of the appellant and UCBL, which suggestion was not opposed by Mr. Kahungu.

Mr. Tumwesigye then, successfully raised the objection. The question that follows is on whose behalf did he raise the objection. It could not have been on behalf of the late Eldad Rwabajungu who was already a party to the suit.

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It must then, have been on behalf of UCBL, the applicants sought to add as a party. Did Mr. Tumwesigye have effective instructions from UCBL to represent it? It is very clear that when he raised objection on s behalf of UCBL, he did not have instructions to do so. Not even Mr. Mwene Kahima who had withdrarmr from the application hacl powers to instruct Mr. Tumwesigye on behalf of UCBL.

In my considered view, even if he had poners to do so, then the costs would go to UCBL and not to the late Eldad Rwabajungu from whom the present appellant is claiming. l0

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It follows therefore, that the drawing, presentation and taxation of the bill on behalf of the late Rwabajungu was illegal. He was not law{ully entitled to those costs. The 1st issue is answered in the negative that the appellant is not entitled to costs ofthe interlocutory application to amend. l5

That disposes of the whole appeal without answering the remaining two issues.

However, there are two important questions I would not like to letrve hanging. All along in the submission of counsel for the respondent, he gave the impression that court may not award costs against a party who has filed a time barred suit. This is \4rong. A court has discretion and having considered all peculiar circumstances of ^a given case, to award costs to an innocent party who has been dragged to court in a time barred suit. They are recoverable.

The second question is whether taxed costs au'arded to an innocent party in an interlocutory application in a suit that is subsequently 30

⁵ dismissed for being time barred, are affected by a subseqttent order of the trial judge that, each party bears its otvn costs. Counsel tbr the appellant referred us to Odgers zznd Edition Principles of Pleadings in which it is stated that:-

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l0 "Where costs qre ord.ered in interlocutory ntatters which sre not appealed against, the judge at the trial hcs no potoer to ua.ry such order."

ls The learned trial judge who heard the reference frorn the ruling of the Registrar was equipped with the right authority of Devram Nanii D nl Haridas Dawda ¹ EACA but it slipped out of his hand when he was applying it to the facts before him. In that Court of Appeal case it was held that:

"c success.,/irl defend.o:nt (Iike in this case, o. success;firl respondent ) who ajler all is bt'ought into court o,go:inst his roill only be depriued. of his costs rnhen it is shourn that his concluct either prior to or during the course of oction , has led the litigation uhich, but for his ourn conduct might haue querted.

Having earlier held that the costs would have belonged to UCB or 30 UCBL, there is no way, it can be said that the Bank conducted itself in a manner that led to the litigation that was before court. I would fault

the holding of the learned judge on reference that the costs awarded in an earlier interlocutory application were affected by the subsequent order of the trial judge in the main suit that each party bears its own costs. If it were not for the reasons earlier given, the appeal would have succeeded.

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In the end, I would dismiss the appeal and make the following orders.

The respondents will have the costs of the appeal. $(1)$

Each party will bear its own costs in the lower court. $(2)$

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$\mu$ .....day of **March** 2009. Dated this

**NSHIMYE JUSTICE OF APPEAL**

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# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# **CORAM: HON. MR. JUSTICE A. TWINOMUJUNI, JA** HON. LADY JUSTICE C. N. B. KITUMBA, JA HON. MR. JUSTICE A. S. NSHIMYE, JA

#### **CIVIL APPEAL NO.21 OF 2006**

## **BETWEEN**

ROSEMARY RWABAJUNGU LEGAL REPRESENTATIVE OF **LATE E. RWABAJUNGU** ......................................

# AND

# 1. GEORGE GERMANY 2. FRANCIS BEHUTA

$\overline{1}$

......................................

[Appeal from a decision of the High Court at Mbarara (before the Hon. Mr. Justice P. K. Mugamba) dated the 1^st day of September, 2005 in HCT $-05 - CV$ -MA $-0054 - 2005$ arisising from HCT $-05 - CV - MA - 0032 - 1998$ and High Court Civil Suit No.041 of 1996

# **JUDGEMENT OF TWINOMUJUNI, JA**

I have had the benefit of reading the judgment, in draft, of His Lordship, Hon. Justice A. S. Nshimye, JA.

I concur and I have nothing useful to add. $11-h$ .......day of $\ldots$ 2009. Dated at Kampala this.

Ullulo Hon. Justice Amos Twinomujuni **JUSTICE OF APPEAR**