[2021] UGCA 216

### THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPLICATION NO. 0193 OF 2020

$\alpha$ $\beta$

(Arising from Court of Appeal Civil Appeal No. 043 of 2020; itself arising from High Court (Family Division) Civil Suit No. 0253 of 2019)

### JORDAN SEBULIBA

### 2. LOWERHILL MANAGEMENT LIMITED

# 3. BEATRICE LUYIGA KAVUMA KIWANUKA:::::::::::::::::::APPLICANTS

#### VERSUS

### VISA INVESTMENTS LIMITED

2. MOHAN M. KIWANUKA:::::::::::::::::::::::::::::::::::

# CORAM: HON. LADY JUSTICE ELIZABETH MUSOKE, JA

#### RULING OF THE COURT

This matter came before me on reference by the Registrar – Court of Appeal, to determine the appropriate costs order following disposition of Civil Application No. 193 of 2020.

#### Background

The present case concerns a dispute among family members. The 1st applicant Mr. Jordan Sebuliba is a son, while the 3^rd applicant Mrs. Beatrice Luyiga Kavuma Kiwanuka is a wife, of the 2^nd respondent, Mr. Mohan Kiwanuka. The $2^{nd}$ applicant is a company in which the $1^{st}$ and $3^{rd}$ applicants have an interest, while the 1^st respondent is a company in which the 2^nd respondent has an interest.

The applicants instituted Civil Suit No. 253 of 2019 in the High Court (Family Division) against the respondents. The suit concerned ownership of several pieces of property, including LRV 201 Folio 20, Plot 21-29, Golf Course Road, Kololo (suit land), where the $1$ ^st and $3$ ^rd applicants lived prior to their eviction. Namundi, J. determined the suit in favour of the respondents, who were granted an order to evict the $1^{st}$ and $3^{rd}$ applicants from the suit land. The respondents appealed against the High Court decision vide Civil Appeal No. 43 of 2020.

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Meanwhile, the respondents successfully moved the High Court (Execution and Bailiffs Division) in Execution Miscellaneous Application No. 1310 of 2019 and were allowed to execute the decree in Civil Suit No. 253 of 2019. The applicants responded by filing an application – Miscellaneous Application No. 1239 of 2019, to forestall the execution order granted to the respondents. However, that application was unsuccessful. On 28^th August, 2020, they filed the present application seeking this Court to grant an order to stay execution of both the orders granted by Namundi, J. and the order allowing the respondents to execute Namundi, J.'s order, until the hearing and determination of the appeal they had filed in this Court.

$\mathcal{H} = \mathcal{H} \oplus \mathcal{H}$

The present application was initially scheduled to be heard on 2^nd September, 2020, when execution of the relevant orders had not taken place but the hearing did not go ahead. On 30^th March, 2021, when the matter next came up, the parties appeared before the Registrar – Court of Appeal. Mr. Patrick Alunga for the applicants notified Court of the applicants' intention to withdraw the application on the ground that the execution sought to be stayed had been concluded. The applicants were granted leave to withdraw the application.

However, the parties disagreed on the appropriate costs order. Mr. Alunga prayed this Court to make no order as to costs while Mr. Odokel Opolot Deo who appeared for the respondents referred to the practice that costs follow the event and prayed this Court to award costs to the respondents who were the successful parties. Due to disagreement on costs, the Registrar referred this matter for determination before me.

### Representation

At the hearing, Mr. Paul Kalondo, learned counsel holding brief for Mr. Patrick Alunga, also learned counsel appeared for the applicants. Mr. Odokel Opolot Deo, learned counsel appeared for the respondents.

I heard oral submissions of counsel for both sides, and have considered those submissions in this ruling.

## Applicants' submissions

Counsel for the applicants acknowledged that the general practice is that a successful party should be awarded the costs in a matter, but submitted that in exceptional circumstances, and for good reason, a Court may refuse to award costs to the successful party. The present application was one such case where there was good reason for the respondents not to be awarded costs. The first reason to justify denying the respondent costs is that the present application would have succeeded had it been adjudicated upon before the respondents completed execution. Secondly, the applicants had diligently taken steps to prosecute the present application. They had lodged this application in this Court on 21^st August, 2020 before execution was completed in March, 2021. It was this Court that bore the responsibility for failure to timely hear and determine the application before execution was completed. Thirdly, Civil Appeal No. 43 of 2020 from which the present application arose has high prospects of success and may result in this Court reversing the High Court order to evict the $1^st$ and $3^rd$ respondents from the suit land, but because execution has been completed, those orders will be rendered nugatory. For the above stated reasons, counsel submitted that it would be unjust for this Court to order the applicants to pay costs in the present application.

# Respondents' submissions

Counsel for the respondents submitted that the reasons advanced by the applicants were not sufficient for this Court to deny costs to the respondents who were the successful parties. He refuted that either the present application or Civil Appeal No. 43 of 2020, from which the application arose had any prospects of success, and contended that they were an abuse of Court process aimed at wasting the respondents' time.

Counsel further submitted that there were legal bars that rendered both this application and the relevant appeal, untenable. The present application was filed when execution had already been completed and therefore the orders of stay of execution sought could not have been granted. Further, relying on the authority of Ssekikubo and 4 Others vs. Attorney General, Supreme Court Constitutional Application No. 03 of 2014

(unreported), counsel submitted that contrary to the practice endorsed in that case that an application to stay execution of the relevant orders ought to first be filed in the Court that passed the relevant decree, the applicants had ignored to file their stay application in the High Court and had come straight to this Court.

It was further submitted that the applicants had not been diligent in prosecuting the present application as they had waited a year after the relevant High Court decision had been delivered before filing the application. He also refuted that the applicants had been diligent in making efforts to fix the present application for hearing and contended that the respondents had not receive any correspondence from the applicants in that regard.

It was further submitted that the relevant appeal before this Court has very low prospects of success and was also legally untenable.

Counsel also informed this Court that the applicants had filed and lost three frivolous cases against the respondents in the High Court, which rendered it vital to punish them with costs in the present application. He concluded by praying this Court to grant the costs of the present application to the respondents.

#### Rejoinder

In their submissions in rejoinder, counsel for the applicants reiterated that the applicants had filed the present application on 21^st August, 2020 only 4 days after the High Court dismissed an application for stay the applicants had filed before it. He also reiterated that execution of the relevant orders was completed in March, 2021 long after the present application had been filed in this Court, and that therefore, if this Court had handled the present application with the necessary urgency, the 1^st and 3^rd respondents would not have been evicted from the suit land. Counsel reiterated his prayer for this Court not to award costs to the respondents, and if this Court is inclined to grant costs, the same should abide the outcome of Civil Appeal No. 43 of 2020 still pending determination in this Court.

## **Resolution of the Application**

I have carefully studied the Court Record, and considered the submissions of counsel for both sides, and the law and authorities cited. I have also considered other applicable law and authorities not cited.

The present application requires this Court to determine the appropriate costs order to make in Civil Application No. 193 of 2020, which was dismissed after being withdrawn on the ground that it had been overtaken by events. Costs are provided for under Section 27 of the Civil Procedure Act, Cap. 71 which provides:

"27. Costs.

(1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incident to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent those costs are to be paid, and to give all necessary directions for the purposes aforesaid.

(2) The fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of the powers in subsection (1); but 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.

(3) The court or judge may give interest on costs at any rate not exceeding 6 percent per year, and the interest shall be added to the costs and shall be recoverable as such."

The position therefore is that it is at court's discretion to award or decline to award costs in any matter or to make any other appropriate costs order. However, the general rule is that the costs in any matter shall follow the event unless the Court shall for good reasons order otherwise.

In Jones v McKie and Mersey Docks and Harbour Board [1964] 2 All ER 842, the Court quoted the observations of Viscount Cave, L. C in the case of Donald Campbell & Co Ltd v Pollak [1927] All ER Rep at p 41, that:

"... A successful defendant in a non-jury case has no doubt, in the absence of special circumstances, a reasonable expectation of obtaining an order for the payment of his costs by the plaintiff; but he has no right to costs unless and until the court awards them to him, and the court

has an absolute and unfettered discretion to award or not to award them. This discretion, like any other discretion, must of course be exercised judicially, and the judge ought not to exercise it against the successful party except for some reason connected with the case."

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In the Jones case (supra), it was stated that in exercise of the discretion on costs, the Court should not take into consideration wholly extraneous or irrelevant matters; and that the Court ought to consider only matters related to the litigation. I agree with the principles referred to above and find them applicable to the present case.

I must therefore consider whether there is any good reason to deny costs to the respondents who were the successful parties in the present application. The gist of the reasons presented by counsel for the applicants is that it would be unjust to award costs against the applicants considering that the respondents were successful only because this Court failed to timely determine the present application, which otherwise would have succeeded.

I note that the ruling in High Court (Family Division) Civil Suit No. 253 of 2015 from which the applicant's appeal to this Court was preferred was delivered on 29^th November, 2019. Not long after that ruling was delivered, the respondents sought to execute the decree arising therefrom and had applied to the High Court Execution and Bailiffs Division, which allowed the execution to proceed. The applicants applied for stay of execution in the High Court Executions and Bailiffs Division vide Miscellaneous Application No. 1239 of 2019, but their application was dismissed in a ruling dated 17^th August, 2020.

By 16^th March, 2020, the applicants had already filed the relevant appeal before this Court as their memorandum of appeal was lodged on that date. On 21^st August, 2020, the applicants filed the present application for stay of execution before this Court. As stated earlier, that application did not come up until 30^th March, 2021 by which time the respondents had already executed the relevant decree. The applicants contend that the present application had been scheduled to come up for hearing on 2^nd September, 2020 but for unknown reasons, had failed to take off.

There is every indication that the applicants diligently pursued both the present application and the relevant appeal pending in this Court. They filed

their appeal as soon as they could after the High Court had rendered its decision in Civil Suit No. 253 of 2019. They also filed an application to stay execution of that decision although the same was dismissed by the High Court, and they also filed their application for stay in this Court, long before execution was completed.

I cannot pass judgment on the merits of the present application which was not heard on its merits, although counsel on both sides invited me to do so. I can only state that the present application was filed in this Court long before execution was completed. Therefore, if this Court had timely adjudicated upon the present application in favour of the applicants, execution could have been stayed. I find this to be a relevant matter in deciding the appropriate costs order.

Having said that, I am cognizant that the respondents were the successful parties in the relevant suit in the High Court, and the applicants' appeal to this Court may still be determined in the respondents' favour, and when that happens, the respondents would need to be compensated for the costs they have incurred in defending the present application.

Accordingly, I find that the appropriate costs order is for the costs of the present application to be in the cause - Civil Appeal No. 43 of 2020, still pending before this Court.

#### It is so ordered.

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| Dated at Kampala this $\frac{2187}{2184}$ day of | |--------------------------------------------------| | | | Elizabeth Musoke | | Justice of Appeal |