[1993] UGHC 63

THE REPUBLIC OF UG/. NDA

IE TiiE HIGH COURT OF UGAbiDA ^A'i\* KAMPALA CIVIL APPEAL HO. 71 GF 1991 (Original Civil Appeal No.23/90\*of C.l'i.'s Court Masaka)

B. RWOMUGARA :::::::::::::::::::::::::::::::::::: APPELLANT

## VERSUS

HAJATI NAbiTABADDE RESPONDENT Before: The Hon. Mrs. Justice M. Kireju

## judgement

This is an appeal by the appellant against the decree and order of the Chief Magistrate of Masaka delivered on 27/7/1991 refusing to award him costs in an appeal where he was successful.

At the hearing of this appeal the appellant was represented by learned counsel Mr. Butagira of M/S Butagira and Co. Advocates and the respondent was represented by learned counsel I4r»Kwikirizaof M/S Barya and Byamugisha Advocates.

The ground of appeal is that the decision of the learned Chief Magistrate of refusing to award costs to the appellant who was successful party in the appeal occassioned a miscarriage of justice and was wrong in law as the learned Chief Magistrate exercised his discretion contrary to law.

The brief background to this appeal is that the respondent/ plaintiff sued the appellant/defendant in Civil Suit No. ⁶² of 1981 of Lyantonde for an eviction order from her land, general damages and costs. The plaintiff alleged that the defendant was a trespasser on her land.

The Magistrate Grade II found for the plaintiff and ordered the defendant to vacate the disputed land, awarded general damages of she. 5,000/= and costs. The defendant appealed to the Chief Magistrate Masaka where the appeal was determined in his favour. The court found that the defendant was a customary tenant and

and could not be evicted arbitrary. The Chief Magistrate did not award any costs in both courts and had this to say on costs on page 5 of his judgement:-

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"As for costs, the usual result is that costs follow the event. However, this rule of practice is subject to court's discretion so that a winning party may not necessary be awarded his costs.

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The appellant herein is on the respondent's land. She is the registered owner of the same. This court has already held that to evict him from the Kibanja, she would first have to compensate him for the developments so far. The relationship between the landlord and tenant is already strained by virtue of the proceedings. Any order for costs would put further assunder the already sour relationship. To harmonise the co-existance between the two, I would make no order as to costs. Each party shall therefore take care of its own costs here and below. $H$

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Mr. Butagira for the appellant submitted that the reasons advanced by the Chief Magistrate for refusing to grant costs to the successful party were not based on accepted principles. He contended that the mere fact that one party lost and another one won does not create enemity between the two, that even if it is taken that the relationship was strained it was not the business of court to embark on reconciling the parties. Counsel submitted that there was no valid reason in refusing costs for the successful party and prayed that costs be allowed in this court and the courts below.

Mr. Kwikiriza, for the respondent submitted that the disallowing of costs by the Chief Magistrate was in accordance with the law. According to S. 27 of Civil Procedure act the award of costs was discretionary and that they are made subject to other judicial considerations which the judge or magistrate may decide. Counsel submitted that apart from the reason that the relationship between the appellant and the respondent would be strained the magistrate also observed that the respondent as registered proprietor was supposed to enjoy undisputed title under S. 56 of Registration of Title Act, but the land is still encumbered by the appellant and in the event that she would seek to remove the appollant she $...1...$

would have to compesate him. Counsel referred Court to the case of Uganda Transport Company ^vs. Quia /19£.> / dCd in support of his contention that there should be grounds upon which the trial judge would exercise his discretion and uaoquuncy or sufficiency of those grounds should not be a matter in which an appeal court could interfere. Counsel concluded by submitting that the Chief Magistrate rightly exercised his discretion to disallow costs and the appeal should bo dismissed with costs,

*5*

as expressly provided by S. 27 of Civil Procedure Act costs are at the discretion of the court, though there is a proviso to the effect that "Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order." I also agree with the holding in the case cite-d of Uganda Transport C.ompauy vs. Outa that where ^a trial court has exercised its discretion, an appellate court should not interfere unless the discretion has been exercised unjudicially or on wrong principles. The same principle was stated in the case of Sheikh Jama vs.\_ Dubat Farah /1~959 7 EA 789.

Having stated the law, ' cy task is to decide whether the learned Chief Magistrate exercised his discretion judicially when disallowing costs to the successful party.' The reasons given by the Chief Magistrate are already cited in this judgement, he referred to the strained relationship between the parties, with due respect to the learned Chief Magistrate after perusing the judgement and the court record I did not find any evidence of strained relationship, unless he was referring to the- usual strained relationship between parties to litigation which is to be expected, ^I am also of the view that even if such ^a strain existed it would not constitute good reason to deny the successful party his costs. The chief Magistrate also referred to the fact that the respondent was a registered proprietor of the- land in issue and if she was to evict the appellant who was a Kibanja holder or customary tenant she would have to compesate him for

the development's on the customary holding\* 'I'his is true but I do not see how- disallowing costs to the appellant would assist either party because if the respondent decides to evict the appellant • from her land she is free to do so in accordance with. the luw, the fact that she was execused from paying costs to the appellant in this suit cannot stop her from sending away the appellant besides the appellant, also has his own rights. There is;. no misconduct alleged on the part of the appellant in the conduct of this case. The Chief Magistrate's decision appear to have been based on humanitarian grounds in an attempt to reconcile the parties which I do not think constitute good reasons as envisaged under S. 27 of Civil Procedure Act. I have therefore found that ¹ the Chief Magistrate proceeded on.the wrong principle when he denied the successful party his costs.

In arriving at the above decision, I''have been assisted by the following cases.

- ¹ \* ^Kjska Ltd vs. De Anglelis /1969/EA ⁶ - 2. Donald Campbell & Co Ltd vs. Pollak Z1927"/ *732* - *3•* Devram Nan.ji Pattani vs. Hayidus Kalidas Dawdfr /12/t9\_X LAC^A ³⁵

. Hussein Jan Mohamed & Sons vs; Twentsche Overseas Trading Co. Ltd /¹⁹⁶⁷ / LA ²⁸⁷

I have therefore found that there was no good reason for the learned Chief Magistrate's refusal to award the appellant costs, the appeal succeeds and the order.of the lower court as regards costs is set aside, the appellant is awarded costs in the lower courts and costs of this appeal.

It is ordered accordingly.

M. Lire3u Judge 20/10/93

## 20/10/9,5:-

V

Mr. Nester ^yamugisha for the respondent.

Mr. Butagira for the appellant not in court. The appellant prc-jsnt. Miss ^Na]<iWendo - Court clerk.

Judgement read before the above.

" '• • / • V- ' . \* *',j* ^M . Ki.re ju 20/10/93