THE REPUBLIC OF UGANDA,
IN THE HIGH COURT OF UGANDA AT KAMPALA
(COMMERCIAL DIVISION)
HIGH COURT TAXATION APPEAL NO 34 OF 2014
JESSICA KAZINA}................................................................................APPELLANT
VS
SAMALIE NAKKAZI KASASA}
T/A KASASA AND CO. ADVOCATES}.................................................RESPONDENT
BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA
RULING
The Appellant filed this appeal under section 62 of the Advocates Act and Regulation 3 of the Advocates (Taxation of Costs) (Appeals and References) Regulations, appealing against an award of costs of Uganda shillings 65,668,602/= in Miscellaneous Cause Number 36 of 2014. She prays that the award is set aside because it is excessive, unconscionable and oppressive and was made in disregard of the relevant schedule of the Advocates (Remuneration and Taxation of Costs) Regulations. She further seeks for an order of court tax the bill is in accordance with the 5th Schedule of the Advocates (Remuneration and Taxation of Costs) Regulations.
The appeal is supported by the affidavit of the Appellant. The Respondent in the affidavit in reply opposed the appeal. At the hearing of the Appellant’s Counsel Brian Kalule represented the Appellant while Counsel David Kaggwa appearing jointly with Counsel Ogwang Sam represented the Respondent. The Respondents Counsel contended that the Appellant’s appeal is improperly before the court and in total breach of article 28 of the constitution of the Republic of Uganda which provides for a right to a fair hearing and objected to the hearing of the appeal on a preliminary point of law. Both parties filed written briefs on the objection.
The Respondent’s Counsel contends that whereas the procedure for an appeal against the ruling of the taxing master is governed by section 62 (1) of the Advocates Act and regulation 3 of the Advocates (Taxation of Costs) (Appeals and References) Regulations, the provisions are subject to the grand norm which is the Constitution of the Republic of Uganda that guarantees a right to fair hearing under article 28. He contended that there can be no derogation from the right to a fair hearing by virtue of article 44 of the Constitution.
The Respondent’s Counsel relies on the case of MM Sheikh Dawood versus Keshwala and Sons HCCS 14 of 2009 where it was held that at the time of issuance of the notice of motion, the Respondent is entitled to both notice of the hearing and also the contents of the appeal against the ruling of the registrar, which ruling is in its favour. In that case the Respondent was not served with the appeal documents for a period of two years. This honourable court held that it went against the principles of fundamental justice enshrined in the Bill of rights under article 28 of the constitution of the Republic of Uganda that a party to a claim or suit or an appeal is entitled to fair notice and must be given opportunity to prepare his or her defence to the claim, suit or appeal within a reasonable time. Furthermore he contends that there is no letter applying for the record of proceedings, ruling and certificate of taxation of the registrar of the High Court attached to the chamber summons or affidavit in support for this honourable court to base on to proceed to determine the appeal. An order is defined as the formal expression of any decision of a civil court and the ruling of the registrar contains the formal expression of the decision of the registrar of a civil court.
No certified copy or the order is attached either to the Appellant's chamber summons or the affidavit in support thereof. The only document attached to the copy filed in court and served on the Respondent by the Council for the Appellant are new uncertified copies of agreements, letters and e-mails which did not feature in the original action. There is no certified copy of proceedings attached to the documents of appeal. There is no certified copy of the ruling attached to the appeal for the court to rely on to determine how the registrar of the court conducted the taxation before the court.
The law expressly requires that certified copies of such documents are the only ones that are to be used on appeal. The law goes on to the extent of adding more time in computation of time limited to file an appeal, to cover time taken in getting the documents certified. The court in this instance has nothing to rely on proceed with the alleged appeal. Consequently the appeal should be dismissed as incompetent.
Respondent’s Counsel further relies on the judgment of Justice Okello JA in the case of Board of Governors and the Headmaster Gulu SSS versus Phinson E Odong High Court Civil Appeal No. 2 of 1990 that it is a requirement of law that the documents namely the decree or order and the memorandum of appeal must be filed together with an appeal. A decree or order from which appeal is preferred must be extracted and filed together with the memorandum of appeal and failure to do so renders the appeal incompetent. In the case of Mukasa versus Ocholi (1968) EA 89 at page 90 Sheridan J as he then was in a similar case held that there are ample authorities for saying that the court has no jurisdiction to entertain an appeal where a decree embodying the terms of the judgment has not been drawn. In the case of Kiwege Sisa Estate vs. M.A. Nathwabi (1952) 19 EACA 160 it was held that without the decree an appeal is incompetent and premature. It is the duty of the Appellant or his Counsel to ensure that such a decree or order is extracted and made available when he files his memorandum of appeal. In like manner the Appellant ought to have a typed and certified proceeding, the taxation certificate and ruling and serve them on the Respondent herein to enable the court and the Respondent know what the Appellant is dissatisfied about.
It is trite law that the Constitution is the supreme law of Uganda. Having established that the Appellant did not attach certified proceedings, the taxation certificate and ruling, how best could the Respondent prepare for her defence to the appeal without being served with the said documents as is expected under article 28 that a party is entitled to all facilities? The Respondents Counsel further submitted that given the fact that the Advocates Act provides for 30 days within which to appeal, it is within the 30 day period, as held by justice Madrama when the chamber summons, order and record of proceedings ought to be served upon the Respondent to enable her prepare and effectively instruct any lawyer. Without these crucial documents within the prescribed time, the Respondent’s constitutional right to fair hearing is highly prejudiced and undermined. On the basis of the above objection, the Respondent’s Counsel prays that the Appellant’s appeal should be dismissed with costs.
In reply the Appellants Counsel prayed that the preliminary objection raised by the Respondent is overruled on the ground that it is a distortion of the curial law regulating the appeal in question on the ground of estoppels and because the appeal raises an illegality which ought to be heard.
As far as the distortion of the law is concerned, the Appellant’s Counsel submitted that the Respondent bases its submissions on the case of Board of Governors and The Headmaster Gulu SSS versus Phinson E Odong HCCA No. 2 of 1994 for the submission that the law expressly requires that the decree or order and memorandum of appeal should be filed together with the appeal and failure to do so renders the appeal incompetent. The case concerned an appeal from a Magistrate's Court to the High Court and is governed by the Civil Procedure Act and rules made there under. The statement is only true for appeals that arise under the Civil Procedure Act and the Civil Procedure Rules. It also includes the Court of Appeal Rules and the Supreme Court Rules. It cannot be turned into a general principle of law for all kinds of appeals. The laws specifically provide for appeals from decrees which shall be by memorandum of appeal and the record of appeal shall contain among other things judgments and orders. This may be found under Order 43 rule 1 of the Civil Procedure Rules for appeals from the High Court, rules 83 and 27 of the Court of Appeal Rules and rules 79 and 83 of the Supreme Court Rules.
The Appellants Counsel submits that on the contrary, the present appeal is brought under the Advocates (Taxation of Costs) (Appeals and References) Regulations and regulation 3 thereof provides that an appeal shall be by way of summons in Chambers supported by affidavit setting forth the particulars of the matters to be appealed. There is no requirement under this provision for a decree in ground of appeal and record of proceedings. The Respondent has not alleged that the present appeal does not comply with the stipulated statutory requirements. In the case of Sheikh Dawood versus Keshwala and Sons HCCS 14 of 2009, the court noted inter alia that the appeal was brought under the Trademarks Act and the provisions of Order 43 rule 1 of the Civil Procedure Rules on the form of an appeal does not apply. Similarly since that is specific legislation governing the appeal in issue, the principles of law cited by the Respondent’s Counsel brought under a different statute does not apply. This is in line with the Latin maxim that Generalia specialibus non derogat which means that the specific prevails over the general.
Similarly the cases of Mukasa versus Ocholi (1968) EA 89 and Kiwege and Mgude Sisa Estate Ltd vs. M.A. Nathwani (1952) 19 EACA 160 are inapplicable as they were not decisions made under the Advocates (Taxation of Costs) (Appeals and References) Regulations. The submission that the documents attached to the affidavit are uncertified and yet the law requires certification is equally erroneous. There is no such requirement in the law under which the appeal has been commenced.
The Appellant’s Counsel further submitted on estoppels, the doctrine not to approbate and reprobate and undue regard to technicalities.
He submitted that it is true that the Constitution of the Republic of Uganda is the supreme law of Uganda and it is also true that there can be no derogation from the right to a fair hearing under articles 28 and 44 of the Constitution. However the Respondents Counsel cannot claim that she is highly prejudiced and could not instruct a lawyer and prepare a defence. In her affidavit in reply to the chamber summons the Respondent deposes that the award of Uganda shillings 65,668,602/= by the registrar was arrived at basing on the law. Secondly that she is informed by her lawyers that the learned taxing officer did not err in relying on the first schedule of the Advocates (Remuneration of Costs) Regulations because it is the applicable schedule in that case. Thirdly she deposes that the award of the learned taxing master should be maintained and the application lacks merit and should be dismissed with costs.
From the above deposition it is apparent that the Respondent was aware of the decision of the taxing master and was aware of its contents and the basis on which it was made and duly instructed Messieurs Kaggwa and Kaggwa Advocates. The Respondent could not have deposed and asked court to uphold the award if she was not aware of or even sought to justify it based on the law in issue if was not aware of the contents of the award. For that reason the Respondent is barred by the doctrine of estoppels under section 114 of the Evidence Act from submitting that she was prejudiced. She is also barred by the doctrine of estoppels from asserting that she did not have time to prepare her defence and instruct Counsel. And that being so, she would have specifically mentioned it in her affidavit in reply but instead she sought to have the decision of the taxing master upheld.
Similarly the Respondent should not be allowed to reprobate and approbate. It is a well-known principle of equity that one cannot approbate and reprobate all at the same time. One cannot say at one time that a transaction is valid and turn round and say that it is void for purposes of securing some other advantage according to the cases of Stephen Serwagi Kavuma versus Barclays Bank Ltd MA 0634 of 2010 arising from HCCS 32 of 2008. In Blueline Enterprises Ltd versus East African Development Bank Court of Appeal No. 21 of 2012, the Court of Appeal of Tanzania held that a person making contradictory allegations is not to be heard. This is because justice is rooted in truth. “Equivocation is not a noble cause in pursuing justice; for equivocation and truth are strange bedfellows”. Having accepted the decision of the registrar and having deposed that the same should be upheld, the Respondent cannot now say that she was not served with the contents of as to gain an advantage.
Lastly, since the Respondent is clearly aware of the decree and its contents, failure to attach the ruling of the registrar on the chamber summons is a mere technicality. Article 126 (2) (e) of the constitution enjoins the court to administer justice without regard to undue technicalities. Whereas it will been prudent to attach the ruling of the registrar to the chamber summons, failure to do so did not occasion the Respondent any prejudice. Having deposed that she agreed with the ruling, the award was arrived at in accordance with the law and that it should be upheld, she was aware of the contents of the award. In that regard the case of Sheikh Dawood versus Keshwala and Sons HCCS 14 of 2009 is distinguishable because in that case there was no service of the notice of motion on the Respondent to enable the Respondent filed a reply.
The Appellant’s Counsel further submitted that the appeal raises a point as to whether an advocate who for part of the transaction in question did not possess a valid practising certificate is entitled to the instruction fees in question or any fees at all. It is an offence under section 15 of the Advocates Act to practice law without a valid practising certificate. In the appeal, it is to be contended that the court should not be seen to reward a potential criminal since the Respondent at one point of the transaction had no practising certificate.
Even if the appeal was incompetent, that shall not prevent the court from hearing it since it involves an illegality. The Appellant’s Counsel relies on the case of Makula International Ltd versus His Eminence Cardinal Nsubuga and another (1982) HCB 11. In that case it was held that the court could interfere with a taxing officer's order despite the fact that the appeal was incompetent. A court of law cannot sanction what is illegal and illegality once brought to the attention of the court, overrides all questions of pleadings. The court should in the same way confront the illegality even if the appeal were incompetent. In the premises the Appellants Counsel prays that the preliminary objection is overruled.
In rejoinder the Respondent’s Counsel submitted that the principle established in the Board of Governors and the Headmaster Gulu SSS versus Phinson E Odong, HCCA No. 2 of 1999 is applicable to all kinds of appeals and is not restricted to appeals under specific statutes. Secondly in the case of Sheikh Dawood versus Keshwala and sons HCCS 14 of 2009 the court noted that since the appeal was brought under the Trademarks Act, the provisions of order 43 rule 1 of the Civil Procedure Rules on the form of an appeal does not apply. Notwithstanding the fact that the appeal was brought under the Trademarks Act, the Civil Procedure Rules were applied.
As far as the right to fair hearing is enshrined in article 26 (28?) of the Constitution of the Republic of Uganda is concerned, the extent of the right goes even to the extent that if a judicial officer is deciding that a taxing master did not follow the law when taxing, then it is only just that the judge is to be availed with the record to actually be able to see that what the parties talking about is the correct position. Failure to provide the judge with a record, taxation certificate would leave him or her in a position of speculation. For a judicial officer to be put in a position where justice is to be dispensed fairly, the documents have to be provided. Furthermore Counsel submitted that it is only just that if the Appellant talks about something that the taxing master did not do, the judge should be given an opportunity to look at the record of proceedings, taxation certificate and order of the court then he or she will be in a position to grant the Respondent a fair hearing. If these documents are not availed to the Respondent as well, then she is not in a position to prepare for the appeal.
Failure to attach the ruling, order, taxation certificate will occasion the Respondent a miscarriage of justice. This is not a mere technicality but only intended to ensure that the Respondent’s right to fair hearing from which there can be derogation is upheld. In those circumstances article 126 (2) (e) of the Constitution is inapplicable.
In further reply to the preliminary objection the Appellant’s Counsel filed additional written submissions in reply without the leave of court. The Respondent's rejoinder was filed on 27 February 2015 while the reply was filed on 2 March 2015.
The additional reply comprises of about half a page. I see no prejudice to the Respondent in referring to these submissions because it is a reply to what the Respondent’s Counsel has already submitted on the right to a fair hearing. Counsel submitted that failure to avail the record of proceedings, certificate of taxation etc is purely a matter of case management and does warrant the striking out of the appeal for the reason that the judge already has the record before him when the appeal was forwarded to him. The matter can be resolved through a case management decision to have forwarded to the judge the relevant record. In doing this no prejudice would be occasioned to any of the parties.
The Appellants Counsel further makes reference to the case of John Bahinguza and Others versus Attorney General CACA MA number 269 of 2013 for the holding that the court must be conscious of the fact that striking out a pleading or proceeding that may deprive a party of presenting and prosecuting it’s cause of action is an extreme measure and should be taken as a last resort and in the clearest of cases. Deviations and lapses in form and procedure, which are not jurisdictional in nature and do not cause prejudice or miscarriage of justice to the opposite party should not lead to such a heavy punishment of extinguishing the cause of action of a party to the cause. After all the rules of procedure are complex and technical and should therefore not be applied in such a way as to have an in validating effect to the offending party’s cause of action.
It is not a clear case that the decree and record had to be extracted as the relevant law does not provide for it. Secondly in the interest of justice, since the record of appeal is before the judge, failure to extract a record of appeal would cause no injustice as the judge has before him the record. In the event that the record is not before the judge, the file can be forwarded to the judge under the case management powers of the court. This would not warrant striking out of the appeal.
Ruling
I have carefully considered the Respondent’s objection on the competence of the appeal. I have further considered the submissions of both Counsels together with the authorities cited and the statutory law.
The objection as I understand it is firstly grounded on an alleged breach of the Respondent’s right to a fair hearing enshrined under article 28 of the Constitution of the Republic of Uganda. The contention of the Respondent is that she was not served with the appeal documents sufficient to enable her to prepare her defence to the appeal within a reasonable time. The Respondent’s Counsel submitted that no certified copy of the order appealed against is attached to the appeal but instead the Respondent was served with new and uncertified copies of agreements, letters and e-mails which did not feature in the original action. There is no certified copy of proceedings or a certified copy of the ruling attached to the appeal. The Respondent’s case is that the law expressly requires that certified copies of such documents are the only ones to be used in the appeal. Consequently the court has nothing to rely on to proceed with the appeal which ought to be dismissed as incompetent. The Respondent further relies on several authorities namely a judgment of Justice Okello judge of the High Court as he then was in Board of Governors and the Headmaster Gulu SSS versus Phinson E Odong HCCA 2 of 1990; Mukasa versus Ocholi (1968) EA 89; Kiwege Sisa Estate versus M.A. Nathwani (1952) 19 EACA 160. The above authorities hold that certain necessary documents are to be filed with the appeal. Lastly the submission of the Respondent is that failure to serve the necessary documents such as the order, record of proceedings, certificate of taxation and the ruling of the registrar violates the Respondent’s right to a fair hearing enshrined under article 28 of the Constitution of the Republic of Uganda which right is doubly entrenched by article 44 of the Constitution that provides that there shall not be any derogation from the right to a fair hearing.
I have also considered the reply to the submissions to the effect that the cases cited are inapplicable because they are concerned with the appeals commenced under specific laws and not the Advocates (Taxation of Costs) (Appeals and References) Regulations which also prescribes the mode of commencing an appeal from a taxation decision of the taxing master. Under the specific provision applicable to appeals from the award of a taxing master, the Appellant complied with the regulations. I have duly referred to and considered the written submissions of Counsel and there is no need to go into their details.
An appeal from the decision of the registrar/taxing master, as conceded by the Respondents Counsel, is enabled by section 62 (1) of the Advocates Act which provides as follows:
"Any person affected by an order or decision of the taxing officer made under this Part of this Act or any regulations made under this Part of this Act may appeal within thirty days to a judge of the High Court who on that appeal may make any order that the taxing officer might have made."
Section 62 (1) quoted above confers the right of appeal to any person affected by an order of the taxing officer. The right of appeal is not in dispute and what is in controversy is the procedure. The Appellant’s appeal was commenced under regulation 3 of the Advocates (Taxation of Costs) (Appeals and References) Regulations Statutory Instrument 267 – 5. Regulation 3 (supra) provides that:
"(1) Every appeal shall be by way of summons in chambers supported by affidavit, which shall set forth in paragraphs numbered consecutively particulars of the matters in regard to which the taxing officer whose decision or order is the subject of the appeal is alleged to have erred."
(2) A copy of the summons and supporting affidavits shall be served on all persons affected by the order or decision, except as provided in regulation 10 of these Regulations.”
I have carefully considered the procedure used by the Appellant in this appeal. The appeal is commenced by chamber summons as prescribed by regulation 3 of the Advocates (Taxation of Costs) (Appeals and References) Regulations. Secondly it is an appeal against the award of Uganda shillings 65,668,602/= in Miscellaneous Cause No. 36 of 2014 for it to be quashed and set aside because it is alleged to be excessive, unconscionable and oppressive and in disregard of the relevant Schedule of the Advocates (Remuneration and Taxation of Costs) Regulations. The Appellant further seeks an order for the court to be pleased to tax the bills in accordance with the 5th Schedule of the said regulations. Regulation 3 of the Advocates (Taxation of Costs) (Appeals and References) Regulations specifically provides that the chamber summons shall be supported by an affidavit which shall set forth in paragraphs numbered consecutively particulars of the matters to which the taxing officer whose decision is appealed is said to have erred. As far as the regulation 3 of the Advocates (Taxation of Costs) (Appeals and References) Regulations is concerned, the Appellant duly and in five paragraphs set out in the chamber summons the grounds challenging the award.
Furthermore in support of the appeal by way of chamber summons the applicant deposes the grounds challenging the award of the taxing officer as prescribed by regulation 3 of the Advocates (Taxation of Costs) (Appeals and References) Regulations.
The Respondent’s Counsel relies on the decision of this court in HCCA No. 14 of 2009 MM Sheikh Dawood versus Keshwala and Sons. In that appeal, there was an application by the Respondent’s Counsel to dismiss the Appellant’s appeal for want of service of the appeal on the Respondent. The appeal had been lodged by the Appellant under section 33, 38 (1) and (3) (a) of the Judicature Act, section 51 of the Trademarks Act Cap 217 and the Civil Procedure Act as well as the Civil Procedure Rules. As far as the Civil Procedure Rules is concerned, the court considered notice to the opposite side under Order 52 rules 1 and 3 of the Civil Procedure Rules. In the ruling the question was whether failure to serve the Respondents with the appeal was fatal to the Appellant’s appeal. It was also a matter of fact which was established and not in dispute that the Appellant had not been served. The court therefore dealt with the question of service of the appeal and the case is clearly inapplicable to the objection of the Respondent and was quoted out of context. Even though it was an appeal, the matter for consideration was the failure to serve the appeal on the Respondent. The court also considered the timelines for the service of documents and hearings before the Registrar of Trademarks under the regulations. The court not only considered the provisions of order 43 of the Civil Procedure Rules which deals with appeals to the High Court but also the form of appeal prescribed. I agree with Appellant’s Counsel that the authority is inapplicable to the appeal which was commenced under specific rules.
Secondly in this appeal the Respondent filed an affidavit in reply and in paragraph 2 thereof she deposes that she read and understood the chamber summons application and affidavits in support there to and responded to the same. In other words the Respondent was served with the chamber summons which comply with regulation 3 of the Advocates (Taxation of Costs) (Appeals and References) Regulations.
Regulation 3 has to be interpreted on the basis of its own language. This is consistent with principles of statutory interpretation. I make reference to the case of Lall v Jeypee Investments Ltd [1972] 1 EA 512. That case concerned an appeal from a determination of the Kenyan Business Premises Rent Tribunal established under the Landlord and Tenant (Shops, Hotels and Catering Establishments) and Justice Madan who read the judgment of the court held at page 516:
“I think it is recognised that each statute has to be interpreted on the basis of its own language for, as Viscount Simmonds said in Attorney-General v. Prince Ernest Augustus of Hanover, [1957] A.C. 436 at p. 461 words derive their colour and content from their context; secondly, the object of the legislation is a paramount consideration.”
When the language of regulation 3 of the Advocates (Taxation of Costs) (Appeals and References) Regulations is read in context, it does not prescribe the attachment of a ruling or anything. It only provides that the grounds of objection to the award shall be specified in the affidavit in support of the chamber summons. In other words the appeal is competent so long as there is compliance would regulation 3 of the Advocates (Taxation of Costs) (Appeals and References) Regulations.
I further agree that the question of whether there is a record of taxation is only implied but is not a fundamental requirement in giving the grounds against the award. While the grounds for the grievance with the award have been specified in the affidavit in support and also in the chamber summons, the question of the record is corollary issue and cannot be the subject of a preliminary objection. I must emphasise that an appeal in terms of regulation 3 of the Advocates (Taxation of Costs) (Appeals and References) Regulations is grounded on the particulars of the matters in regard to which the taxing officer whose decision or order is the subject of the appeal is alleged to have erred. It is either a decision or order. In this particular case the chamber summons specifies that the Appellant is aggrieved by the award and seeks to have it quashed on the ground she alleges that it is excessive, unconscionable and oppressive and made in disregard of the relevant schedule.
The grounds in the affidavit in support of the application include the grounds in the chamber summons. The additional grounds are that the Respondent is not a licensed person.
As far as the record of appeal is concerned, an application for the record of appeal is only considered for purposes of excluding the time taken for preparation of the record of appeal. However there is no contention about the timeliness of filing of the appeal. What is being contested is that the record of the appeal is not attached to the affidavit in support of the chamber summons. There is no statutory requirement to attach the record of proceedings, the orders, taxation certificate etc to the affidavit in support of the chamber summons. The contention that it is necessary to include the order, decree, taxation certificate or ruling has no basis under the rules which are applicable to appeals from taxation decisions. In the case of Board of Governors and Headmaster Gulu SS versus Phinson E Odong Civil Appeal No. MG 2 of 1990, an appeal was lodged in the High Court Holden at Gulu from the decision of the lower court. Justice Okello, judge of the High Court as he then was (and not misleadingly described as a judge of the Court of Appeal by the Respondent) considered the meaning of the words "decree" or "order" as used in sections 232 (1) of the Magistrate's Court Act 1970 which is to the effect that an appeal lies to the High Court and not from the judgment or ruling but from a "decree" or any part thereof and from orders of a Chief Magistrate or Magistrate Grade 1. He held that in those circumstances it is a requirement of the law for these documents namely the decree or order and memorandum of appeal to be filed together when the appeal is lodged. He further relied on the case of Mukasa versus Ocholi (1968) EA 89 at page 90.
I have considered the case of Mukasa versus Ocholi (1968) EA 89 at page 90 the decision of Justice Sheridan. In that case an appeal was preferred to the High Court from the decision of the Magistrate Grade III. No decree had ever been extracted. Justice Sheridan held: "There is ample authority for saying that a court has no jurisdiction to entertain an appeal where a decree embodying the terms of judgment has not been drawn up". Justice Sheridan further held that "An appeal is of course a creature of statute”. Because the provisions considered in the cases cited by the Respondents Counsel deal with the Civil Procedure Rules, Order 43 which prescribes a different form and procedure as well as the Magistrates Courts Act, the decision cannot apply to appeals commenced under the Advocates (Taxation of Costs) (Appeals and References) Regulations. In the premises the authorities relied upon by the Respondent’s Counsel are inapplicable in the circumstances of the Appellant’s case which is brought under Advocates (Taxation of Costs) (Appeals and References) Regulations.
For that reason there are other provisions which are applicable as far as the record is concerned. Even if the Civil Procedure Act applies, the relevant provision is section 79 which provides as follows:
“79. Limitation for appeals.
(1) Except as otherwise specifically provided in any other law, every appeal shall be entered—
(a) within thirty days of the date of the decree or order of the court; or
(b) within seven days of the date of the order of a registrar, as the case may be, appealed against; but the appellate court may for good cause admit an appeal though the period of limitation prescribed by this section has elapsed.
(2) In computing the period of limitation prescribed by this section, the time taken by the court or the registrar in making a copy of the decree or order appealed against and of the proceedings upon which it is founded shall be excluded.”
An appeal from any other decision of the registrar is commenced within seven days from the order of a registrar. However the Advocates Act section 62 thereof provides for a period of 30 days. What is relevant is that section 79 (2) of the Civil Procedure Act puts the duty on the registrar or the court to make a copy of the decree or order appeal against and of the proceedings upon which it is founded.
It may be suggested that an application for the record should first be made. It is my humble opinion that it is not necessary to write a letter for a copy of the record of proceedings from a decision of the registrar to the High Court. The procedure for writing a letter is prescribed by the Judicature (Court of Appeal) Rules which provides for notice of appeal as well as an application for the record of appeal made to the original court. What is material is that under rule 83 (2) an application for a copy of proceedings in the High Court shall be made within 30 days after the date of the decision which it is desired to appeal and the time taken for preparation of the record shall be excluded. Furthermore under rule 83 (3) of the Judicature (Court of Appeal) Rules, an Appellant shall not be entitled to exclude the period taken for preparation of the record unless he or she has made an application for a copy of the proceedings in writing and served the application on the Respondent as well as retained proof of that service. As far as the registrar is concerned, an appeal lies from an order of the registrar to a judge of the High Court. Under section 79 (2) of the Civil Procedure Act, it is the registrar who prepares the record of proceedings. It is absurd to suggest that there should be a letter asking for the record of proceedings when the appeal is lodged simply by filing chamber summons which will be served on the other side. The duty is on the registrar/court to prepare the record and forward it to the judge.
The Respondent cannot be prejudiced and the question of records has nothing to do with the commencement and the competence of the appeal. It is a step to be taken by the court. There is no requirement to write a letter first but obviously the Appellant ought to follow up the matter and ensure that the record is availed. If the record is not available, the registrar can be requested to avail it.
Finally in the case of MM Sheik Dawood versus Keshwala and Sons, the registrar was the Registrar of Trademarks and is not part of the High Court. An appeal from the Registrar of Trademarks is an appeal from a different tribunal to the High Court. The Trademarks Act and Regulations prescribed the appeal. In this appeal it is the Advocates Act and Regulations namely the Advocates (Taxation of Costs) (Appeals and References) Regulations which apply. Secondly the appeal is within the High Court i.e. from a registrar of the High Court to a judge of the High Court. It is not an appeal from a tribunal or Magistrates Court to the High Court for which Order 43 of the Civil Procedure Rules may apply.
In the premises, the Respondent’s preliminary objection lacks merit and is dismissed with costs.
Ruling delivered in open court on the 11th of March 2015
Christopher Madrama Izama
Judge
Ruling delivered in the presence of:
Brian Kalule for the Appellant
Jessica Kazina Appellant in court
Sam Ogwang for the Respondent
Patricia Akanyo: Court clerk
Christopher Madrama Izama
Judge
11 March 2015
