Kidega Lak v Non-Performing Assets Recovery Trust (CIVIL APPEAL NO.27 OF 2000)

The full judgment

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Holding

The Court of Appeal held that although the award of costs is discretionary, a successful party is ordinarily entitled to costs unless there is good reason to deny them. Illegality in court orders not attributable to the innocent party is not, by itself, good reason to deprive that party of costs. The appellant, a court bailiff who succeeded before the High Court, should not have been penalised for the respondent's mistake. Further, under rule 13(4) of the Court Bailiffs Rules 1987, a bailiff who carries out an execution is entitled to costs payable by the judgment creditor even where execution is stayed. The appeal was allowed and the costs order set aside.

Facts

The appellant, a court bailiff, was authorised by the High Court District Registrar at Lira to carry out executions in cases where Uganda Commercial Bank was the judgment creditor. The bank was replaced by the respondent, the Non-Performing Assets Recovery Trust, under Statute No. 11 of 1999. The respondent stopped the appellant from proceeding with the executions. The appellant drew up bills of costs for the decrees he had executed, which were taxed by the District Registrar, and sought to recover those costs from the respondent. The Registrar, after a show-cause notice, ordered execution against the respondent. The respondent appealed to the High Court, which dismissed the appeal as time-barred but ordered each party to bear its own costs on the ground that the underlying orders were a nullity. The appellant appealed against the costs portion of that order.

Issues

1. Whether the trial judge erred in ordering each party to bear its own costs where the appellant had succeeded on the appeal before the High Court.
2. Whether illegality in the underlying orders constituted good reason under section 27(1) of the Civil Procedure Act to deny a successful party its costs.
3. Whether the appellant, as a court bailiff, was entitled to his costs under rule 13(4) of the Court Bailiffs Rules 1987 despite a stay of execution.

Orders

• Appeal allowed.
• The High Court order concerning costs set aside.
• Costs of the appeal and in the High Court awarded to the appellant.

Key headnotes

Legislation cited (4)

• Civil Procedure Act s.27
• Civil Procedure Act s.27(1)
• Court Bailiffs Rules 1987 r.13(4)
• Statute No. 11 of 1999

Cases cited (2)

• Bhagwanji Roja v Swaran Singh [1962] EA 288
• Makula International Ltd v Cardinal Nsubuga [1982] HCB 11