THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA
HOLDEN AT MBALE
(FROM HCCA NO. 96 OF 2011)
(FROM MBALE CHIEF MAGISTRATE’S COURT CIVIL SUIT NO. 44/2008)
MUGOBERA MASSA MOSES.......................................................APPLICANT
BEFORE: THE HON. MR. JUSTICE HENRY I. KAWESA
Applicant brought this application by Notice of Motion under Section 82 and 98 of the Civil Procedure Act and o.46 r.2, 6 and O.52 of the Civil Procedure Rules.
The application seeks orders that the court be pleased to quash the award of damages, each party bears his costs in the High Court.
In his affidavit in support paragraph 5, the applicant applies for review of the judgment of Hon. J. Musota specifically on the award of costs. He referred to the judgment as Annexture ‘C’.
While arguing the application the applicant who represented himself argued that the Judge was not right to impute wrong doing on him, instead of court which relied on the faulted affidavits of service.
He argued that it would be unfair to him to buy land at 600,000/= only to be condemned to pay costs of 3.5 millions. He requested court to review the findings of court since they were oppressive to him.
In reply Madaba argued that the matter brought under Section 82 for review does not satisfy any of the conditions for review. Award of costs is discretionary as per section 27 of the Civil Procedure Act. He referred to James Mbabazi & Anor. Vrs. Makitok Schools Ltd & Anor which held that a successful party must be awarded costs since costs follow the event.
He argued that since no damages were awarded on appeal this prayer is unfounded and therefore the entire application should be dismissed.
I have gone through this application. I do find that its brought for review under Section 82 of the Civil Procedure Act, for review and O.46 r (2) of the Civil Procedure Rules. This order requires the applicant to show that there is a new discovery of fact or evidence, there is an error, or that other sufficient reason exists to warrant review. Unfortunately none of the above has been proved.
The complaint that the Judge was unfair to grant costs, is not a matter for review. In any case the law is clear under section 27 of the Civil Procedure Act that the costs in all suits shall be in the discretion of the court or Judge.
I agree with counsel for Respondent’s reliance on the authority of James Mbabazi & Anor. V. NATCO Stores Ltd (Court of Appeal Reference No.15/2004) that a successful party is entitled to his costs and there must be justification before such a party is deprived of his costs.
I am therefore unable for all reasons discussed above to find merit in this application.
It is not sustainable and is accordingly dismissed. Since appellant/applicant represented himself and did not quite appreciate the procedures, and impact of such an application, I will order each party to bear its own costs. I so order.
Henry I. Kawesa