THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(COMMERCIAL COURT DIVISION)
HCT-00-CC-MA-185 OF 2010
BEFORE: THE HON. MR. JUSTICE LAMECK N. MUKASA
Mr. Dan Wegulo- Counsel for Appellant
Mr. Oging Joseph- counsel for the Respondent
Mr. Makoha Ojambo
2. Costs of the appeal be provided for.
The grounds of appeal are:
(b) The learned Registrar erred in law in holding that Mr. Oging Joseph could proceed and tax the plaintiff’s additional bill of costs after the plaintiff had withdrawn instructions from him.
In his affidavit in support the Appellant, Ocen Robert, avers that the Respondent, Mr. Oging Joseph, was representing Dr. David Kitara in Civil Suit No. 980 of 2010 until the withdrawal of instructions around and about the 26th October, 2006. In a letter dated 6th October, 2008 to M/S Oging & Co. Advocates, Annexture “A” to the affidavit, Dr. David Kitara states:
This is to formally withdraw whatever legal instructions that I had given to you in the pursuit of matter with Mr. ROBERT OCEN
There is no indication whether the letter dated 6th October, 2008 was filed in Court. However the affidavit dated 15th august 2008 shows that it was filed in Court on the same day.
In paragraph 4 Ocen Robert avers:
Mr. Oging Joseph filed an affidavit in reply where he contends:
5. That in the said application, the issue as whether or not instructions had been withdrawn, taxation of the additional bill of costs were resolved by the Judge adding that the additional costs incurred by the counsel in execution of the decree of the court are recoverable and the additional bill of costs be filed and be taxed…….”
The Bill of costs was filed on 30th January, 2008 when Mr. Oging Joseph was still on record as representing Dr. David Kitara since the affidavit pertaining to the withdraw the instructions from him was filed in Court on 15th August 2008. Apparently at the taxation date of the bill of costs, i.e. 26th November, 2009, Mr. Oging Joseph had no further instructions to represent the beneficiary of the Bill of Costs, Dr. David Kitara. In this regard counsel for the Appellant cited Hansraj Raumal Shah vs. Westlands General Stores Properties Ltd. & Anor.  EA 642 where one of the appellant’s arguments was that he was not bound by his advocates’ act. It was found that the appellant had not withdrawn his instructions from the advocate who retained full control over the conduct of the case and had apparent authority to compromise all matters connected with the action.
Order 3 rule 1 of the Civil Procedure Rules provides that any application to or appearance or action in any court may be made or done by an advocate duly appointed to act on his or her behalf. So an advocate has ostensible or apparent authority to represent a party until such authority is withdrawn by the client.
In her ruling, Her Worship Gladys Nakibule, Deputy Registrar, stated:
I am obliged to asses the resubmitted bill therefore I accordingly order the bill be taxed accordingly”.
In Kamunye & others vs The Pioneer General Assurance Society Ltd  EA 263, the then East African Court of Appeal set out the test for res judicata, thus:
Counsel for the appellant, Mr. Wegulo, contends that the issue of competence of counsel appearing for a client after the withdrawal of instructions has never arisen in the previous applications. That this issue was coming up for the first time and had not been adjudicated upon previously.
I have carefully studied the proceedings in the Appeal before Hon. Justice AS Choudry and the proceedings before the Assistant Registrar out of which arises the said appeal. Miscellaneous application No. 195 of 2009, the appeal before Hon. Justice AS Choudry, was against the Assistant Registrar, His Worship Henry Haduli’s refusal to tax the plaintiffs’ (Dr. David Kitara) additional bill of costs and dismissal of the same.
In the affidavit in support of Misc. app No. 195 of 2009 Mr. Oging Joseph avers:
(3) That the said costs were incurred by my client and ourselves (the Lawyers) while pursuing payment and satisfaction of the decree passed against the respondent on 18th September, 2005.
(4) That instead of the Registrar taxing the bill by allowing, disallowing or reducing the items claimed, he dismissed the entire bill omnibus with costs to the Respondent.
I have also found that the Taxation Ruling by His Worship Haduli was delivered on 19th February 2008 prior to the filing of the withdrawal of instructions from Mr. Oging Joseph on 15th August, 2008.
However, the Appeal in Misc. App No. 195 of 2009 was filed on 14th April, 2009 by M/s Oging & Co. Advocates. This was after the filing of the withdrawal of instructions from Mr. Oging Joseph. In paragraph 3(i) of his affidavit in reply to the appeal Ocen Robert raised the issue of Mr. Oging Josephs’ lack of instructions. He states:
Despite the above averment the Appeal was prosecuted by Mr. Oging Joseph. Apparently the issue of Mr. Oging Joseph’s representation was not pursued at the hearing or if it was the learned Judge did not consider it. Yet on the authority of the Kamunye case (supra) this is a matter which the parties, exercising reasonable diligence, should have brought forward at the hearing of the Appeal. The doctrine of res judicata is fundamental in that there must be an end to litigation. In the premises I find that the matter was res judicata. The learned Deputy Registrar had no alternative but to proceed as directed in the Decree by the Honorable Judge. The option open to the Appellant was to appeal to the Court of Appeal against the Decree in Misc. Appl. No. 195 of 2009 for the learned Judge’s failure to consider the issue whether Mr. Oging Joseph had Dr. David Kitara’s instructions to represent him.
In the final result the appeal is dismissed with costs.
LAMECK N. MUKASA