[2023] UGHC 339

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA TAXATION APPEAL NO. 3 OF 2019 (ARISING FROM CIVIL SUIT NO. 34 OF 2009) DAVID LUSAGI TALEMWA …………………………….………….………… APPLICANT VERSUS SEGWANYI RICHARD ………………………………...………..….……….. RESPONDENT**

## **RULING**

*Hon. Lady Justice Victoria N. N. Katamba*

### **BACKGROUND**

The Respondent instituted Civil Suit No. 34 of 2009 against the Applicant in the Chief Magistrates court of Masaka for a number of reliefs and the matter was resolved in his favor. The Respondent then filed a bill of costs in 2014 which was taxed in 2019 when S. I No.7 of 2018 which is an amendment to the Advocates Remuneration and Taxation of costs rules had come into force.

Critical among the Applicant/Appellant's complaints is that the bill of costs was taxed under the old rules instead of the new rules that were in force then. The Applicant also states that he was never notified of the taxation hearing.

The Respondent in his affidavit in reply states that contrary to the Applicant's claims, he was notified of the taxation hearing, a copy of the affidavit of service is attached to the reply. He also states that the Applicant/Appellant appealed against the orders of the Chief Magistrates court vide High Court Civil Appeal No. 88 of 2013 which he later lost. The Respondent further states that it is this appeal that prevented the taxation from being conducted earlier.

Representation

The Applicant was represented by **M/s Lukwago & Co. Advocates**.

The Respondent was on the other hand represented by **M/s Magellan Kazibwe & Co. Advocates & Legal Consultants**.

#### **APPLICANT'S SUBMISSIONS**

The Applicant opposed the entire bill of costs as presented by the Respondent because according to him, the items were not supported by law or fact.

He submitted that the said bill of costs was in accordance to Regulation SI 71-1, yet the said regulations as at the time the instant bill was taxed had long been amended and replaced with the Advocates (Remuneration and Taxation of Cost) (Amendment) Regulation 2018, SI No. 7 of 2018. He submitted further that schedule six of regulation SI 71-1 which the Respondent used in his submissions was repealed and therefore it was erroneous to proceed to tax the instant bill under repealed law.

The Applicant buttressed his submissions with the decision of the Hon. Justice Anna B. Mugenyi in the case of Total (U) Ltd Versus Rosebel Twinamatsiko, Civil Appeal No. 29 of 2019 where court held that S. I 7 of 2018 ( The Advocates ( Remuneration and Taxation of Costs) (Amendment) Regulations 2018 is deemed to have come into force on 2nd March 2018 when it was published in the Gazette, nowhere in those regulations is it indicated that the old regulations ( S. I 267-4) shall be applied to matters that were filed in courts before March 2018.

The Applicant then went on to attack the different limbs of awards in the different items in further arguments which I have not found necessary to reproduce here for a reason that I will give later.

#### **RESPONDENT'S SUBMISSIONS**

The Respondent submitted that the bill was filed in 2014, the taxation did not take place because the Applicant filed an appeal that was later dismissed. He submitted that the Bill of costs was thereby not affected by the amendment.

The Respondent raised several preliminary Objections to the Application which I have not found necessary to reproduce here but critical among them is that the application was served after the expiry of 21 days. Under Order 5 Rule 1(2) of the Civil Procedure Rules; it is provided that: - "Service of summons issued under sub rule (1) of this rule shall be effected within twenty-one days from the date of issue; except that the time may be extended on application to court, made

within fifteen days after the expiration of the twenty-one days, showing sufficient reasons for the extension".

Additionally, the Respondent submitted that Order 5 Rule 1(3) of the Civil Procedure Rules is the to the effect that where summons have not been served in time the suit shall be dismissed. He buttressed his submissions with the authority of *Western Uganda Cotton Ltd =versus= Dr George Asaba & 3 Others CS No. 353 of 2009, Justice Hellen Obura held that: "Order 5 Rule 1(2) is couched in a mandatory language and Order 5 Rule (3) clearly provides for sanction where summons are not served within twenty one days and there has been no application for extension of time. The sanction is dismissal of the suit without notice.*

In conclusion, the Respondent submitted that the instant Application which was served 2 years from the date of issuance is barred by law and prayed that this court be pleased to dismiss it with costs to him.

#### **DETERMINATION BY COURT**.

The Respondent raised several preliminary Objections some of which if successful could dispose the instant Application.

Key among the objections is that the Application/Appeal is incompetent for failure to serve the Chamber summons within the 21 days allowed by law.

*Order 5 r1(1) of the Civil Procedure rules provides that Summons shall be filed within 21 days.*

*Order 5 r1(2) of the same rules provides for room to apply to extend the time within which to serve and Order 5 r1(3) provides that court shall dismiss the Application were the Summons have not been filed within the time allowed by law*. *See Lady Justice Damalie N. Lwanga in Samuel Ssebowa Kagulire vs. Emmanuel Kasule Salongo M. A No. 324 of 2014 (Arising from Civil Suit No. 178 of 2013)*

In the instant case, the Chamber summons were issued by this court on 7th August 2019 and it appears an earlier date had been indicated in the Chamber summons but a new date was written above the earlier date. The Application was served on the Respondent on 4th May 2022. There is no Application for extension of time within which to serve the instant application on the record of this court.

In the premises, I find that the Chamber summons was served almost after 2 (two) and a half years from the date of its issuance without leave of court. This objection is hereby upheld.

Secondly the taxation having proceeded ex parte against the Applicant/Appellant, his remedy was to apply to set aside the taxation from the trial court under *Order 9 r27 and not to appeal the taxation award.*

Owing to the above reasons, I find no merit in the Application and it is hereby dismissed with costs to the Respondent.

As undertaken to disclose earlier, my reason for not re-stating the submissions of the parties on the merits of the Application was because, it has been settled on the above points of law.

I so order.

Orders;

1. The Application is hereby dismissed with costs to the Respondent.

Dated this 18th day of April, 2023

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# **HON. LADY JUSTICE VICTORIA NAKINTU NKWANGA KATAMBA**