Court name
HC: Civil Division (Uganda)
Judgment date
27 April 2017

Ezama v Nile Microfinance (U) Ltd & Anor (Miscellaneous Civil Application-2017/13) [2017] UGHCCD 40 (27 April 2017);

Cite this case
[2017] UGHCCD 40
Coram
Mubiru, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA SITTING AT ARUA

MISCELLANEOUS CIVIL APPLICATION No. 0013 OF 2017

(Arising from Civil Suit No. 0028 of 2014)

 

EZAMA APOLLO OLEMA                       ……..….……..…………….……      APPLICANT

     

 

  1.  

 

  1. NILE MICROFINANCE (U) LTD                                          }
  2. DUDU JOHN OGENTHO t/a QUICK DEBT SOLUTIONS            }  ………  RESPONDENTS

AUCTIONEERS AND COURT BAILIFFS}

 

Before: Hon Justice Stephen Mubiru.

 

RULING

 

This is an application for revision of an order of the Chief Magistrate acting as a Taxing Officer awarding the second respondent bailiff’s costs following a consent judgment entered between the applicant and the first respondent. It is made under the provisions of sections 83 and 98 of The Civil Procedure Act, sections 17 and 33 of The Judicature Act and Order 52 rule 1 of The Civil Procedure Rules. It is supported by the affidavit of the applicant in which he states that in a suit then pending before the Chief Magistrate, he entered into a consent judgment with the first applicant by which he undertook to pay the first applicant a sum of shs. 2,942,500/= in two equal instalments by the end of February 2015, and in addition thereto, shs. 700,000/= as costs. Following that consent judgment, the applicant paid into court a sum of shs. 1,900,000/= leaving an outstanding balance of shs. 1,742,500/=. To his surprise, a warrant for his arrest in execution of the resultant decree was on 2nd March 2016 issued for recovery of a sum of shs. 3,642,500/= on top of which, upon his arrest in execution, the bailiff’s costs were taxed on that day and allowed at shs. 1,500,000/=. He contends that he was denied an opportunity of being heard during the taxation of the bailiff’s bill of costs and that the resultant award was excessive. He further contends that the amount stated in the warrant of execution erroneously omitted the sum deposited in court, and for that reason it too is excessive.

In his affidavit in reply, the second respondent refutes the applicant’s claim. As a court bailiff, e received instructions to recover shs. 2,942,500/= from the applicant. After attempts at an amicable recovery failed, an application was filed in court for recovery of the decretal sum by way of arrest and imprisonment of the applicant until his eventual arrest on 2nd February 2016. The second respondent immediately filed his bill of costs and served it upon the applicant, and it was taxed in the presence of the applicant before his eventual committal to civil prison. The amount allowed represents the effort and expense incurred by the second respondent in tracing for and arresting the applicant. The amount the applicant alleges to have deposited in court has never been remitted to the first respondent or its counsel. He therefore prayed that the application be dismissed.

 

Before the application could be heard, counsel for the respondents Mr. Richard Bundu raised three preliminary objections. The first one was on misjoinder of the second respondent, the second related to the affidavit in support of the application and the last one to the procedure. His argument was that this being an application for revision, under section 83 of The Civil Procedure Act, the grounds raised must relate to the parties in the lower court. The second respondent was not a party to those proceedings and therefore should not have been joined. On the second point, his argument was that the affidavit in support of the application was commissioned by a person with a postal address in Kampala. Considering that The Commissioner for Oaths (Advocates) Act, section 5 and The oaths Act section under section 6 require the address of the commissioner to be stated, the jurat was fraudulent since it stated the affidavit was sworn in Arua. Lastly, he argued that the application on the other hand is indirectly an appeal against the Chief Magistrate decision over taxation. It should have been by way of Chamber summons under Order 50 rule 8 of The Civil Procedure Rules and not by way of a revision. Rules are to be complied with irrespective of the impact i.e. whether injustice is occasioned or not. He prayed that the application is struck out with costs to the respondent.

 

In response, counsel for the applicant Mr. Henry Odama prayed that the objections be overruled for lack merit. In his submission, Order 1 rule 3 of The Civil Procedure Rules allows joinder of parties for as long as they have an interest in the litigation. The applicant is seeking relief in a transaction where the second respondent was actually involved. In the alternative, under rule 8 of Order 1 of The Civil Procedure Rules, misjoinder should not defeat the application. With regard to the second objection raised about the jurat, he argued that the affidavit clearly stated that it was deponed in Arua. Use of a stamp with a postal address in Kampala did not create ambiguity. Even if the document was deponed in Kampala it would not be fatal. Location of the commissioner is required for tracing the jurat. The instant one is not an ambiguous Jurat. Lastly, he argued that the procedure was not improper for as long as the issues raised are triable. If the appeal is out of time, one can seek revision instead. In this case the taxation was conducted on 2nd February 2016 and the application was filed 20th February 2017 since it was no longer possible to file an appeal. The cause of the delay in filing the appeal was that the applicant had initially handled his grievance administratively. He sought administrative remedies first and this explains the delay. In any case, the late application has not occasioned any injustice.

 

Having heard the objections, all were overruled with an undertaking to give reasons in this ruling. As regards the objection relating to the form of the jurat, it is indeed a mandatory requirement under both section 6 of The Oaths Act, and section 5 of The Commissioner for oaths (Advocates) Act, that every Commissioner for Oaths, or Notary Public before whom any oath or affidavit is taken or made should state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made. In the jurat, the Commissioner is supposed to indicate his or her name, the date and place, then his or her signature. It is therefore very clear indeed that the jurat should contain the full address of the place where the affidavit was sworn. What is objected to by the Learned Counsel for the Respondents is that the Jurat in the instant application fails to disclose the place at which the affidavit was sworn by the Applicant.

 

There is a line of authorities to the effect that section 5 of The Commissioner’s for Oaths (Advocate) Act and section 6 of The Oaths Act which require affidavits to state truly in the jurat or attestation, the place at which and the date on which the Oath or affidavit is taken or made, are mandatory and non­compliance with the same renders the affidavit incurably defective (see Teddy Namazzi v. Sibo [1986] HCB 58; Coffee Marketing Board Ltd v. Bukyenkye Coffee Factory (U) Ltd [1996] H.C.B 59; The Church of Almighty God Malaki Ltd v. Administrator General and Another, H.C. Misc. Civ. Appn. No. 92 of 2009; Fred Kigozi v. Paul Musoke, H.C. Misc.App.No.509 of 2002 and Sembeguya v. Reliable Trustees, H. C. Civil Suit No. 601 of 1992). In Time Trader Transporters v. Public Procurement and Disposal of Public Assets Authority and another H.C. Misc. Appl. No. 02 of 2016, the affidavit bore a signature but was silent as to the names, title and designation of the person before whom the attestation was made.  It did not bear the seal of the Commissioner for Oaths or the Magistrate before whom the attestation was made. The court held that for someone to administer an oath, and fail to comply with the requirement to fill in the names of the Commissioner, sign and seal the document went to the root of the matter and was not merely a technicality of the law. The affidavit was incurably defective.

Similarly in The Duke of Brunswick v. Slowman and Others, (1849) 137 ER 649 the motion was founded upon separate affidavits of the two defendant Miles and Berry. Miles’s affidavit was objected to that it could not be used, the jurat being defective since there was no date whatever to the jurat. Miles. In response counsel sought to rely on that of Miles allegedly sworn on the same day, as capable of curing the defect. The court held that every affidavit must be certain and its content must not be left to be eked out by extraneous averments. The want of a date in the jurat of an affidavit, is not cured by a reference to it in another affidavit as sworn on such a day.

However, it has also been decided in other cases that some defects are curable and where the defect is curable, the affidavit should not be rejected. For example in Munden v. Charles Frederick Augustus William, Dike Of Brunswick And Luneburg, Sued As Charles Frederick Augustus William D’Este, Commonly Called The Duke Of Brunswick, (1847) 136 ER 530, the jurat of the affidavit disputing the claim was; “Sworn at Brunswick House, Regent’s Park, in the county of Middlesex, the 26th day of April, 1847, before me, W. Grant, a com. & e.’’ The plaintiff, treating the plea as a nullity, signed judgment on the 1st of May instant. Lush, on a subsequent day, obtained a rule calling upon the plaintiff to show cause why the judgment should not be set aside for irregularity.

The jurat is clearly defective......An affidavit of debt sworn before a commissioner in the country, without stating him in the jurat to be a commissioner, was held insufficient. Here, it does not sufficiently appear, that the party taking the affidavit was a commissioner: he merely signs his name, with an abbreviated word ‘‘Com” after it, which may mean commissioner, or commoner, or commander, to which he adds an “& e.,” which, whatever be its virtue in other respects, certainly does not tend to elucidate the meaning here....... In Hill v. Royster (7 Jurist, 930), affidavits sworn before a commissioner, and signed by him “A. B., Comm.” were held to be insufficient. In affidavits, it is more common to see the word “commissioner” abbreviated than otherwise..... An affidavit with a jurat signed, “A. B., a corn’. &e.,” is sufficient...... the judgment being regular, an application to set it aside, without an affidavit of merits, cannot be entertained..

 

A similar position was taken by the Kenya High Court in Standard Chartered Bank Ltd v. Lucton (Kenya) Ltd HCCC No. 462 of 1997, where the Hon. Ringera J. (as he then was) had occasion to deal with a case in which the Commissioner of Oaths had failed to indicate the place where the affidavit had been taken. He held that the word “shall”, as used in that Act was not mandatory. At at page 13 of the Ruling he stated;

When I consider the matter from those two perspectives, I am constrained to hold that parliament did not intend that the word “shall” in Section 5 of Cap 15 be mandatory or obligatory; it was intended to be merely directory and the court should so construe the word. The direction is to the Commissioner of Oaths to indicate the place and date of taking an affidavit. His failure to do so does not nullify the affidavit taken. It is an omission which is at worst an irregularity on his part and which results into a defect of form in the jurat of the affidavit. Such an irregularity, like any other irregularity in form, may be overlooked by the court.

 

In another case, Dilshad Hassanali Manji v. Hassanali Vasanji Manji, Nairobi High Court Civil Case 8 of 2005, [2006] eKLR, the Court had occasion to consider a jurat which stated: “Sworn by the said Dilshad Hassanali Manji this 19th day of June, 1998.” On that attestation by the Commissioner of oath was his stamp which gave his address as P. O. Box 28673 Nairobi.  What was missing in the jurat were the words “at Nairobi.” For lack of those words it was contended that the affidavit was defective and thus the whole originating summons became defective and should be struck out. The Court held that;

The stamp affixed by the Commissioner of Oaths does state the place of his signature.  I would have presumed that if he or she was not affixing the stamp on the place where it was signed, the necessary statement or amendment to the stamp would have been made.  In any event, I can safely surmise that the stamp affixed does satisfactorily state the place where the affidavit was sworn and that the omission to mention the place in jurat is not a deviation in substance but is in its form and the same is not prejudicial to the opposite side and is not calculated to mislead

 

In Nabukeera Hussein Hanifa v. Kibuule Ronald and another, H. C. Election Petition No. 17 of 2011, Counsel for the Petitioner objected to the admission of 18 of the Respondent’s affidavits on the ground that the said affidavits did not comply with the provisions of Section 5 of the Commissioner for Oaths (Advocates) Act, Cap 5, in that they did not disclose the name of the person before whom the oath or affirmation was taken. A signature was scribbled on the space where the Commissioner for Oaths / Magistrate should have signed but the corresponding name of the officer who affixed his signature is not disclosed. On top of the signature was affixed the seal of the Chief Magistrates’ Court of Mukono. The trial Judge found that the defects complained of were curable in view of the fact the oaths or affirmations were apparently administered by officers of the Court, as evidenced by the Seal of the Chief Magistrate’s Court Mukono affixed thereon, whose omissions should not be unjustifiably visited on the respective deponents.

 

In Col. (Rtd) Dr. Besigye Kizza v. Museveni Yoweri Kaguta and Electoral Commission, S.C. Election Petition No. 1 of 2001, the first Respondent’s affidavit did not indicate the name or title of the person before whom it was made.  It merely contained a signature and the seal of the High Court.  It was submitted for the first Respondent that the signature was that of the Registrar of the High Court, Mr. Gidudu (as he then was) who had power to administer an affidavit by virtue of his office.  Mr. Gidudu subsequently made an affidavit confirming that he is the person before whom the affidavit was sworn.  Hon. Justice Odoki CJ (as he then was) held:

The Registrar’s jurat fulfilled the essential requirements of the jurat namely the place and date the affidavit was made.  But it should have included his name and title to strictly comply with the Form of jurat contained in the Schedule.  The lack of proper form was however cured by the affidavit sworn by Mr. Gidudu.  Accordingly the objection raised against the affidavit sworn by the 1st Respondent had no merit”

 

Guided by the above-mentioned decisions, I also considered the defect complained of in the instant case in light of section 43 of The Interpretation Act, Cap 3, which provides that where any form is prescribed by any Act, an instrument or document which purports to be in such form shall not be void by reason of any deviation from that form which does not affect the substance of the instrument or document or which is not calculated to mislead, to derive the principle that deviations from requirements of form, unless calculated to mislead, should be ignored. The Commissioner for Oaths (Advocates) Act in schedule to The Commissioner for Oaths Rules (first Schedule to the Act) prescribes a format for jurats. Nevertheless if the defect of the jurat is in form, it should not be considered a fundamental defect or irregularity, thus can be curable and should not result in rejection of the affidavit. The nature of the defect in the instant application is that although the jurat is substantially in the form prescribed by the Act, the affidavit is said to have been sworn at Arua yet the Commissioner for Oaths rubber stamp affixed thereto reads P. O. Box 12422 Kampala. The question is whether this irregularity is calculated to mislead.

 

Section 43 of The Interpretation Act addresses honest errors, but not the malice of mankind. Evidence of any wilful intention to pervert and mislead, by means of wilful misrepresentations or artful sophistry, calculated to mislead the ignorant and unwary, will result in rejection of the affidavit. A malicious and mischievous intention as well as a moral state of apathy and indifference to the importance of an affidavit, is sufficient. In this application, counsel for the respondent more or less invited the court to find or ascertain actual intention to mislead only as a matter of inference from what the Commissioner for oaths was proved to have done but without any evidence as to the circumstances in which he did it, presumably under the presumption that a man intends the natural consequence of his own acts. To succeed on the basis of such an inference, counsel for the respondent had to prove that the jurat in its form had the tendency to mislead and that such a result was foreseeable by a reasonable man as being a likely consequence of the act. This could have been achieved by demonstrating that it contains false or misleading allegations, or by concealment of that which should have been disclosed, had a similar effect. Where intention to produce a particular result is a necessary element of a finding, no distinction is drawn in law between the state of mind of one who did an act because he desired it to produce that particular result and the state of mind of one who, when he did the act, was aware that it was likely to produce that result but was prepared to take the risk that it might do so, in order to achieve some other purpose which provided his motive for doing what he did. It is by now well-settled law that both states of mind constitute “intention.”

 

Looked at objectively, a jurat indicating that the affidavit is sworn at Arua but with the stamp of the commissioner for oaths reading an address in Kampala, has the tendency of producing uncertainty as regards the place where it was sworn rather than lead to a definite or specific untrue fact. I find that it has, on the face of it, the tendency to confuse rather than mislead.

 

A skilled person though reading the affidavit would quickly realise that the affidavit was sworn at Arua since it states so and the commissioner for oaths affixed a stamp indicating a postal, as opposed to a physical address in Kampala. A postal address does not necessarily represent the physical addresses of the operator. Where a skilful reader, and such a reader must be supposed to bring his or her stock of intelligence and knowledge to bear upon the jurat, not unduly to struggle with it, but anyhow to make the best of it; if, as the result, he or she understands where the place of the jurat is, then the affidavit cannot fail on the head of vagueness. Without any evidence of the circumstances in which the Commissioner for Oaths who in the jurat indicated the deponent took oath at Arua but affixed a stamp reading P. O. Box 12422 Kampala, which as a postal rather than a physical address, I am unable on basis of the facts before me to rule out inadvertence in affixing the stamp, or the fact that both deponent and Commissioner for oaths were physically in Arua at the time the affidavit was sworn, and conclude that this on its own is a manifestation of an intention to mislead. I am unable to find an intentional perversion of the truth for the purpose of inducing another to rely upon it, which is the essence of an intention to mislead. I have not found any evidence of suppression of the truth or suggestion of any falsehood. To hold otherwise would be pure speculation. I therefore consider this to be a defect or irregularity in the form of the jurat, which is not of a fundamental nature that is curable and which should consequently not result in rejection of the affidavit.

 

I am persuaded further in coming to this conclusion by the decision in Saggu v. Roadmaster Cycles (U) Ltd [2002]1 EA 25 where in considering an affidavit that was not dated,  Justice Mpagi-Bahigeine JA, (as she then was) held that a defect in the jurat or any irregularity in the form of the affidavit is not fatal because it is a mere lapse or error that cannot be allowed to vitiate the affidavit in view of Article 126 (2) (e) of The Constitution of the Republic of Uganda, 1995, which stipulates that substantive justice shall be administered without undue regard to technicalities. In that case it was decided that a judge has powers to order an undated affidavit to be dated in court or that the affidavit be re-sworn before putting it on record and may penalize the offending party in costs. This decision was followed in Stone Concrete Ltd v. Jubilee Insurance Co. Ltd, H.C. Misc. Apn. No. 358 of 2012. It is for those reasons that the first preliminary objection was overruled.

 

The second objection was that the second respondent was wrongly joined to the application since he was not party to the suit between the applicant and the second respondent. This objection apparently did not take into account the provisions of section 34 (1) of The Civil Procedure Act, to the effect that all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge, or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit (see also Kabwengure v. Charles Kanjabi [1977] HCB 89). For that reason, the court may even at that stage, join parties to the proceedings intended to determine questions arising between the parties to the suit in which the decree was passed, or their representatives. This is because the Court would then require the presence of all parties interested in the matter in suit, in order that a final end might be made of the controversy relating to the execution of the decree. This view is further backed by the provisions of Order 1 rule 10 (2) of The Civil Procedure Rules to the effect that;

(2)          The court may at any stage of the proceedings either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added. (Emphasis added).

 

Similarly, in applications for review of judgments, Order 46 rule 1 of The Civil Procedure Rules permits any person considering himself or herself aggrieved to apply for a review of judgment to the court which passed the decree or made the order. Such a person need not have been party to the suit. They may join the proceedings at that stage.  However with regard to appeals, the power to join parties is restricted by Order 43 rule 17 of The Civil Procedure Rules regarding the power to adjourn hearing and direct persons appearing interested to be made respondents. It provides as follows;

Where it appears to the court at the hearing that any person who was a party to the suit in the court from whose decree the appeal is preferred, but who has not been made a party to the appeal, is interested in the result of the appeal, the court may adjourn the hearing to a future day to be fixed by the court and direct that that person be made a respondent. (Emphasis added).

 

The rules however are silent with regard to applications for revision. Section 83 (d) of The Civil Procedure Act simply provides that the High Court is not to exercise its power of revision “unless the parties shall first be given the opportunity of being heard.” Within this context, “parties” ought to be given a liberal interpretation to include the parties to the suit any other person whose presence before the court may be necessary in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the application for revision, within the terms of Order 1 rule 10 (2) of The Civil Procedure Rules. This is in light of section 83 (e) of The Civil Procedure Act, which bars exercise of this power, where from lapse of time or other cause, it would involve serious hardship to any person. It may be necessary to join such person and hear them before court determines whether the revision sought will expose them to any hardship. I thus chose the liberal interpretation to overrule this objection.

 

The last objection was that since the applicant was dissatisfied with orders of the Chief Magistrate acting as a Taxing Officer, the proper procedure should have been to appeal the decision rather than apply for revision. Whereas both Order 48 rule 7 and Order 50 rule 8 of The Civil Procedure Rules provide that persons aggrieved by decisions of District Registrars and Registrars respectively have a remedy in an appeal to a judge by motion on notice respectively, they are silent on appeals from decisions of Chief Magistrates Acting as Taxing Officers. Although Order 21 rule 8 of The Civil Procedure Rules provides that the decree is not to state the amount of the costs, which, after they have been taxed or otherwise ascertained, should instead be stated in a separate certificate to be signed by the magistrate, appeals from orders of magistrates acting as taxing officers are subject to the general provision of section 220 (a) of The Magistrates Courts Act which provides for appeals from the decrees or any part of the decrees and from the orders of a magistrate’s court presided over by a chief magistrate in the exercise of its original civil jurisdiction, to the High Court. Therefore, under section 79 (1) (a) of The Civil Procedure Act, the appeal should have been lodged within thirty days from 2nd March 2016, the day the second respondent’s bill of costs was taxed.

 

Nevertheless, in overruling the objection, I was guided by the Supreme Court decision in Byaruhanga and Company Advocates v. Uganda Development Bank, S.C.C.A No. 2 of 2007, (unreported) which left it to the discretion of the judge to decide whether in the circumstances of a particular case and the dictates of justice, a strict application of the law, should be avoided. While I agree that an appeal was a specific remedy that the applicant could have pursued, and that usually an application for revision will not be entertained if another remedy is open to the applicant, the existence of an alternative remedy is not a bar to the exercise powers of revision under section 83 of the Civil Procedure Act.  It has been decided before that the High Court may revise an order which would otherwise have been appealed (see Kyeswa v. Sebunya [1993] II K.A.L.R. 26).  In any case, it is now settled that the existence of a specific procedure, provision, or remedy cannot operate to restrict or exclude the courts inherent jurisdiction under S.98 of the Civil Procedure Act which gives residual powers to the court to prevent or correct any injustice (see Standard Chartered Bank of Uganda v. Ben Kavuya and Barclays Bank [2006] 1 HCB 134). It is for all the foregoing reasons that the three objections were overruled.

 

Turning ot the substance of the application, counsel for the applicant submitted that in paragraph 4 off the affidavit in support, it was indicated that the amount in the warrant was more than what was outstanding.  Annexures C1 – C3 to the affidavit in support of the motion show that the money was received by the court. This was done on the advice of the trial Magistrate. There was no court order or directive to that effect but the applicant took the advice of the court. The money was received by the court. Further, that in paragraph 6 of the affidavit in support, the taxation was conducted ex-parte without proof of service. There was no affidavit of service for the bailiff’s costs. Paragraph 7 of the affidavit in support was also relied upon as assailing the taxation of items 1, 2, and 3 which the bailiff claims as instruction fee. Under the second schedule of the Court Bailiffs rules 1987 as amended in 1991, bailiffs are not entitled to professional fees. Further, that the amount assessed is also beyond the 4% of the quantum that the rules provide for.  He prayed that the application be allowed.

In response, counsel for the respondent argued that since there has not been any recovery under the decree, the warrant of arrest in execution was issued for recovery of the entire decretal sum of shs. 3,642,500/=. The shs. 1.900.000/= mentioned by the applicant was received by court and has never been remitted to the applicant. Although none of the advocates appeared at the taxation of the bailiff’s bill of costs, the applicant was present and only chose to remain silent.  Since the rules governing the bailiffs costs do not provide for percentages when execution is by way of arrest of the judgment debtor, it is in the discretion of the Taxing Officer to determine an appropriate amount and the Chief Magistrate exercised that discretion judiciously. There was no irregularity in the taxation and therefore the application should be dismissed.

 

The power of this court to revise decisions of magistrates’ courts which is conferred by section 83 of the Civil Procedure Act, Cap 71 is invoked where the magistrate’s court appears to have; (a) exercised a jurisdiction not vested in it in law; (b) failed to exercise a jurisdiction so vested; or (c) acted in the exercise of its jurisdiction illegally or with material irregularity or injustice, provided that no such power of revision can be exercised unless the parties have first been given the opportunity of being heard; or where, from lapse of time or other cause, the exercise of that power would involve serious hardship to any person. It entails a re-examination or careful review, for correction or improvement, of a decision of a magistrate’s court, after satisfying oneself as to the correctness, legality or propriety of any finding, order or any other decision and the regularity of any proceedings of a magistrate’s court. It is a wide power exercisable in any proceedings in which it appears that an error material to the merits of the case or involving a miscarriage of justice, occurred.

 

The contention by the applicant as I understand it is that the Chief Magistrate acted with material irregularity or injustice in exercising his jurisdiction both as the trial magistrate and as a Taxing Officer, when; he issued a warrant of arrest in execution of a decree whose amount exceeded the sum due, proceeded to tax the resultant bailiff’s bill of costs ex-parte and awarded an excessive sum in bailiff’s costs. As regard the amount stated in the warrant not taking into account the sum already deposited in court, I have not found any evidence on record to show that the trial court directed the applicant to deposit any part of the decretal sum in court. The deposit of that sum is not backed by any court order and it is for all intents and purposes a private arrangement between the applicant and some court staff evidenced by a handwritten acknowledgement dated 18th May 2015 (annexure C2 to the affidavit in support of the application) clothed with the semblance of the officialdom of one general receipt dated 24th April 2015 (annexure C1 to the affidavit in support of the application). It is only proper that the burden be cast on the applicant to retrieve that sum from the individuals who received it from him. They were never appointed agents of the first respondent to receive the decretal sum on its part in the first place. This argument therefore fails.

The second argument is that the bill of costs was taxed ex-parte without prior service on counsel for the applicant. It is not disputed that the taxation was done in the presence of the applicant, before his eventual committal to civil imprisonment as a judgment debtor. It has been held before that . Conversely, a proceeding that takes place in the presence of a party but in absence of counsel cannot be said to have proceeded ex-parte. There is no evidence on record to indicate that the applicant applied for adjournment to enable his counsel to attend the taxation. He deliberately opted not to make any submission at all. Consequently, this argument fails as well.

 

Lastly, counsel for the applicant argued that the amount awarded was excessive because it included an award of instruction fees yet bailiffs are not entitled to instruction fees. The Taxing Officer has discretion in matters of taxation but he or she must exercise the discretion judicially and not whimsically. The general principle that guides the re-consideration of awards of costs by Taxing Officers is that the award will not be interfered with unless it is shown expressly or by inference that in assessing and arriving at the quantum of the fee allowed, the Taxing Officer applied a wrong principle, in which regard, application of a wrong principle is capable of being inferred from an award of an amount which is manifestly excessive or manifestly low.

 

For example in Githunguri and Collins Architechts v. Uganda Communications Commission, H. C. Miscellaneous Application No. 1017 of 2000, the parties filed a consent judgment, wherein the Uganda Communications Commission was to pay US $ 400,000 within 30 days from 5th April, 2000. The judgment debtor failed to honour the decree and a warrant of execution was issued. The judgment Creditor appointed bailiffs to recover the money. The bailiffs wrote a letter demanding payment together with their fees, costs and disbursements. The judgment debtor paid the decretal sum on the same day. Thereafter the bailiffs filed a bill of costs in court for shs. 29,194,000/= but were awarded shs. 8,800,000/= which included, inter alia, professional fees for attachment of property. On appeal, it was decided that the Registrar had relied on a wrong scale in reaching his decision regarding professional fees. The rate of 6% was based on the scale of fees provided in the 2nd schedule to The Court Bailiffs Rules, 1987 as amended by Statutory Instrument No. 15of 1991, only applied to professional fees on attachment of movable property. In that case, no attachment was carried out by the bailiffs and the suit property which was the subject matter of the warrant of attachment was not a movable property. Therefore the rate of 6% should not have been applied.  Court set aside the taxation ruling and referred the bill of costs back to the Registrar for re taxation.

 

However, in the case of Patrick Makumbi and Awori v. Sole Electric, S. C. Civil Appeal No. 11 of 1994 it was observed that there is no mathematical or magic formula to be used by the taxing master to arrive at a precise figure. Each case has to be decided on its own merit and circumstances. For that reason, Alexander Okello v. Kayondo and Co. Advocates S. C. Civil Appeal No 1of 1997, it was held that;

Where it is clear from his decision that the Taxing Officer had the basic fee in mind, and that the reasons he gave for increasing or reducing the fee are considerations permitted by the Remuneration Rules, his assessment will be up held on appeal

There is nothing in the instant application to suggest that Taxing Officer did not have the basic fee in mind. I do not find the sum of shs. 1,500,000/= to be manifestly excessive as to be capable of supporting an inference of application of a wrong principle in the taxation of the bailiff’s bill of costs.

In the final result, I have not found evidence of any material irregularity or injustice in the exercise of the jurisdiction vested in the Chief Magistrate as a trial magistrate and Taxing Officer. I therefore do not find any merit in the application and it is hereby dismissed with costs to the two respondents.

 

…………………………………..

                                                                                                Stephen Mubiru

                                                                                                Judge

                                                                                                27th April 2017.