THE REPUBLIC OF UGANDA
THE COURT OF APPEAL OF UGANDA
Coram: Hon. S.G Engwau, JA
Hon. Amos Twinomujuni, JA
Hon. A. S Nshimye, JA
CIVIL APPEAL No.69 OF 2006
[ARISING OUT OF CIVIL SUIT No.1519 OF 1999]
TRADE IMPEX LTD :::::::::::::::::::::::::::::::::::::::::::::::APPELANT
- CHRIS SSERUNKUMA
- CHRISTINE OKOT CHONO ::::::::::::::::::: RESPONDENTS
JUDGEMENT OF JUSTICE A.S. NSHIMYE JA.
This appealchallenges the judgement of the High Court (Commercial Division) of 21/09/2005 by (Hon. M.S.Arach- Amoko JA) as she then was).
The learned judge awarded the appellant 5 million shillings as general damages, with interest at a rate of 15% p.a from the date of judgement till payment in full with costs. She found no fault with the order made by Justice Sebutinde J directing the appellant to deposit 50 million shillings with the respondents for purposes of furnishing security for costs.
Between 1989 and 1991, the appellant obtained a loan of ECU255.000 equivalent to about US$ 300.000 from Development Finance Company of Uganda Limited (DFCU). The loan was secured by a mortgage over the appellant’s property comprised LRV 2432 Folio 6 plot No 8-11 situated along spring Close Kampala plus a debenture over the appellant’s assets. Upon default, DFCU appointed the respondents as receivers. The receivers sold all the assets of the company including the mortgaged property. The mortgaged property was sold for US $ 670.000. Out of those proceeds, only a sum of US$ 24,414,19 was paid over to the appellant as balance after deductions of the loan and other expenses. The appellant questioned the accountability made by the respondents and filed a suit making several claims.
Justice M.S. Arach Amoko J heard the case and gave judgement in favour of the appellant only in terms as indicated earlier. She found that the appellant was entitled to the general damages and costs because, had the respondents made proper accountability, the suit would have been avoided.
She rejected other claims and did not find fault with the 50 million shillings taxed by Sebutinde J for purposes of furnishing security for costs. The appellant was aggrieved by the rejected claims and appealed on three grounds of appeal which, during conferencing were reduced to 3 agreed issues namely;
- Whether the appellant could claim a refund from the respondent the amount claimed to have been expended as legal fees on the basis of a sum mentioned in order requiring the furnishing of security for costs.
- Whether the Judge erred in law in not making any findings on the wrongly computed interest arising out of the sale of the mortgaged property when such interest was in issue.
- Whether the learned trial Judge erred in law in not making any finding on the figure of ECU46911.16 equivalent to US$ 56,997,72 illegally debited to the account of the appellant.
At the hearing, Mr. Nangwala appeared for the appellant while Mr. Bwanika appeared for the respondent.
Mr. Nangwala argued the issues separately.
Whether the appellant could claim a refund from the respondent the amount claimed to have been expended as legal fees on the basis of a sum mentioned in order requiring the furnishing of security for costs.
Mr. Nangwala submitted that the first issue stemmed from the Page 138 of the record of appeal where it is indicated that US$ 51.535 was paid as legal fees. To him, the fees were excessive. The bill of costs in HCCS No.1113/1996 between the appellant and respondents and DFCU was paid without being taxed. His client therefore claimed for a refund of the said US$51.535. Counsel faulted the learned Judge for holding that the only course the appellant could have taken about the bill of costs was to appeal or apply for review.
He cited R.37 Advocates (Remuneration and Taxation of costs) Regulations which states;
“A bill of costs incurred in contentious proceedings in the High Court …………………….. be taxable according to the rates prescribed in the sixth schedule of these regulations”
Mr. Bwanika for the respondent argued that the said US$51.535 was rightly paid as the bill of costs was taxed. He said that the learned Judge (J. Sebutinde J) in her discretion assessed and fixed the amount. He cited Section 27 Civil Procedure Act which states
“ ………………….subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs and incidental to all suits shall be in the discretion of the court or judge and the court or judge shall have full powers to determine by whom and out of what property and to what extend those costs are to be paid, and to give all directions for the purpose aforesaid.”
The Record of Appeal, at page 153-156 shows that the bill of costs was taxed by Justice Sebutinde on the 6th May 1997. She in her discretion, awarded a sum of 50millions for purposes of furnishing security for costs.
In line with the above legal provisions, I find Mr.