Application for re-taxing bill of costs taxed by a trial magistrate brought by Notice of motion instead of Chamber summons.

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL APPEAL NO. 08 OF 2013

(Arising out of Civil Suit No. 051 of 2012)

MAHJUB IBRAHIM :::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

VERSUS

THE REGISTERED TRUSTEES OF

KAMPALA ARCHDIOCESE :::::::::::::::::::::::::::::::::::::: RESPONDENTS

BEFORE: HON MR. JUSTICE BASHAIJA K. ANDREW

Case summaries

Brief facts

The Applicant had filed a suit against the Respondent before the Chief Magistrate Court of Mengo which was dismissed for want of pecuniary jurisdiction. The Respondents filed 2 bills of costs which were all taxed separately and the Magistrate awarded 5,513,500/= and 9, 390,000/= for the application and the main suit respectively making a total award of 14,552,500/= against the Appellant. The Appellant now contends that when taxation was done Counsel for the Applicant was in Soroti Chief Magistrates Court; a fact that was brought to the attention of the trial magistrate but was ignored. The Applicant prayed for orders that:-

1.  The bills of costs be retaxed.

1.  Execution of the said bill of costs be stayed until the determination of this appeal.
2. That the costs of this application be provided for.

Counsel for The Respondent raised a preliminary objection that the application was brought under the wrong law and procedure. That the application was brought under Section 98 of the Civil Procedure Act and Order 52 rr. 1, 2 & 3 of the Civil Procedure Rules. That the applicable law is Section 62(1) of the Advocate Act, Cap 267 which provides for any person affected by an order or decision of a taxing officer made under that part of the Act or  Regulations under that part  a right to appeal that order or decision within 30 days to a Judge of the High Court. That under Regulation 3(1) of the Advocate (Taxation of costs) Appeals and Reference) Regulation an appeal against the decision of a taxing master is by way of summons in chamber and not by Notice of Motion as was done by the Applicant.

Civil procedure- application brought by Notice of motion instead on chamber summons- whether application defective.

Civil procedure- bill of costs- taxation of bill exparte- whether bill taxed exparte should be quashed.

Civil procedure- taxation of costs- whether the award by the taxing master was excessive.

Issues:

1. Whether the learned trial Magistrate erred in law and fact when he awarded costs which are manifestly herein?
2. The learned trial Magistrate erred in law and fact when he taxed the bill of costs ex parte thus denying the Applicant the right to a fair hearing.
3. The Applicant prayed that court be pleased to set aside/quash and or re-tax the bill inter party.
4. The Applicant is entitled to costs of the application

Held

1. I am bound to follow this above decision that although the irregularity exists and the Applicant ought to have come by Chamber Summons instead of a Notice of Motion, since this court is vested with the necessary jurisdiction to hear and determine this application, the wrong procedure should not be a hindrance for justice to prevail, especially so it has not occasioned injustice to the Respondent.
2. Looking at the above I cannot interfere with the award of these costs because they were not excessive. According to the proceedings the Magistrate reached the figure in accordance with the laid down formula. I have had the privilege of perusing through the taxation on proceedings, and I believe the taxation officer was well appraised by what was before him. However, items 7, 8 and 9 should be struck off  in the taxation of the bill for the civil suit because they are not provided for by the law, where as item 35 is repeated as item 56 which should also be struck off.
3. I have come to a conclusion that the Plaintiff and his Counsel were given an opportunity to appear which they abused and justice cannot be delayed by a party who is buying time not to pay costs.  The trial magistrate was right and justified to proceed ex parte.

The taxation was upheld save for item No.4 with costs to the respondent.