Master Trading Company Limited v Kimanywenda (Taxation Appeal 4 of 2023) [2023] UGHCCD 252 (30 June 2023)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGAND AT FORT PORTAL TAX APPEAL NO. 004 OF 2023 (ARISING FROM EMA. 76 OF 2022) (ARISING FROM TAX CASE NO. 57 OF 2022) (ARISING FROM M. A 98/2016 & M. A 45 OF 2016) (ARISING FROM CIVIL SUIT NO. 21 OF 2015) MASTER TRADING CO. LIMITED ::::::::::::::::::::::::::: APPELLANT VERSUS

KIMANYWENDA BONIFACE :::::::::::::::::::::::::::::: RESPONDENT BEFORE: HON. JUSTICE VICENT WAGONA

RULING

1. The applicant brought this appeal against taxing decisions of the Registrar under Regulation 3 of the Advocates (Taxation of Costs) (Appeals and References) Regulations citing excessive taxing in the bill of costs. The application was supported by the affidavit of Mr. EllyTuryagenda an advocates under M/s T-Davis Wesley & Co. Advocates & Solicitors, the applicant's lawyers who among others averred that some items of the bill were excessively taxed to wit, item 1 on instructions fees where a sum of Ugx 6,000,000/- was awarded for filing a reply to an application for objector proceedings; and that the fees to file pleadings, were also excessively taxed.


2. The application was opposed by the Respondent who averred that the sum awarded as instruction fees was reasonable compared to a sum of Ugx 8,000,000/= which he paid as instruction fees.

*Hearing and Representation:*

- 3. *M/s T-Davis Wesley & Co. Advocates* appeared for the applicant while *Mr. Businge A. Victor of M/s Ngaruye Ruhindi, Spencer & Co. Advocates* appeared for the Respondent. Both parties filed written submissions which have been considered. - 4. Issues: - 1. Whether this application is proper before this court. - 2. Whether the certificate of taxation in Tax Case No. 57 of 2022 should be set aside.

CONSIDERATION BY COURT:

- 5. Order 50 rule 8 provides thus: *"Any person aggrieved by any order of a registrar may appeal from the order to the High Court. The appeal shall be by motion on notice."* - 6. Section 79 (1) of the Civil Procedure Act Cap. 71 on the other hand provides for limitation of appeals and states that: *(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.*

- 7. Section 79 of the Civil Procedure Act must be read together with Section 62 of the Advocates Act Cap. Section 62 (1) provides that; "*Any person affected by an order or decision of a 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."* - 8. Any other appeal after the 30 days must be with leave of court. This position was considered by *Justice FMS. Egonda Ntende* in *Uganda Electronics & Computer Ltd Vs. Katuuma – Magala & Co. Advocates, HCT – 00 – CC – MC 04 of 2006 arising from HCT – 00 – CC – CS – 0466 of 2005* thus: *"The appeal in this case had to be lodged within 30 days of the decision of the taxing officer as it is provided for in Section 62 (1) of the Advocates Act. The appeal was lodged long after 30 days had expired. It was out of time. No leave to file it out of time was sought by the appellant. The appeal is therefore time barred. The appellant cannot call in aid, Section 79 (2) of the Civil Procedure Act, as it is not applicable to matters not governed by Section 79 (1) of the Civil Procedure Act, such as the one before me. As the appeal was incurably incompetent, for being out of time, I dismiss it with costs to the respondent."* - 9. In this case, the bill of costs and certificate of taxation appealed against was considered on 7th December 2022 and the certificate of taxation was issued on


the same day. The applicant filed the appeal out of time on 16th June 2023 without leave of court. I find that the appeal was incompetent and I would strike it out on that account.

- 10.The appeal would not even succeed on the merits. The bill of costs and the certificate of taxation in issue was a result of consent between counsels for the parties which was sanctioned by court. The claim that counsel Nyaketcho was coerced into proceeding with taxation without authority and without the file is untenable. Paragraph 8 of the Constitution (Adjournments for the Courts of Judicature) (Practice) Directions 2019 provides that; *"An advocate holding brief for another advocate shall ordinarily be expected to have instructions to proceed in the matter."* I find that Counsel Nyaketcho Julian in appearing for the applicant during the taxation had instructions to proceed. - 11. I therefore dismiss this application with costs awarded to the Respondent.

It is so ordered.


Vincent Wagona

High Court Judge

FORT-PORTAL

DATE:30/6/23