Wakilii

Muwema & Mugerwa Advocates & Solicitors v Shell (U) Ltd & 10 Ors (Civil Appeal No. 18 of 2011)

Court of Appeal · [2012] UGCA 30 · 2012 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from the High Court (Commercial Division) decision in Miscellaneous Application No. 645 of 2010, itself an appeal against a taxing master's charging order.
Decision
Judgment of the High Court set aside as a nullity; matter remitted to the Commercial Court for disposal before another judge

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Cited — treatment unverified cited in 1 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Holding

The Court of Appeal allowed the appeal, holding that the trial judge's judgment was a nullity. The judge had wrongly proceeded in disregard of a valid interim order of the Court of Appeal, which once issued must be obeyed. She could not set aside a costs order made by another judge in a concluded suit, nor invoke s.69 of the Advocates Act absent any proven offence committed in the face of court. The court further held she exhibited a real likelihood of bias, and that suspending an advocate for professional misconduct without formal proceedings before the Law Council Disciplinary Committee violated the non-derogable right to a fair hearing under Articles 28 and 44(c) of the Constitution. The matter was remitted for rehearing before another judge.

Facts

The appellant law firm represented Rock Petroleum (U) Ltd and other oil companies in a representative suit (OS 009/2009) against Uganda Revenue Authority to recover excess excise duty. The firm had a remuneration agreement entitling it to 16% of the decretal sum. After judgment was entered in favour of the oil companies, the firm sought 16% (about Shs 8.9 billion) and obtained a charging order from the Deputy Registrar in Misc. Application No. 622 of 2010. The 1st to 10th respondents challenged the fee agreement, contending they were not bound by it, and filed an appeal (Misc. Application No. 645 of 2010). The trial judge declared the fee agreement illegal, set aside the charging order, denied the firm fees and costs, and suspended Mr. Fred Muwema from practising before the Commercial Court. She proceeded despite an interim Court of Appeal order staying proceedings. The firm appealed against these orders.

Issues

  1. Whether the trial judge erred in proceeding to hear and determine the application in disregard of an interim order of the Court of Appeal staying the proceedings.
  2. Whether the trial judge could set aside an order for costs made by another judge of the High Court in a concluded suit.
  3. Whether the trial judge exhibited bias amounting to a miscarriage of justice.
  4. Whether the trial judge could convert a taxation appeal into disciplinary proceedings and suspend an advocate from practice without formal disciplinary proceedings before the Law Council Disciplinary Committee.

Orders

  • Appeal allowed.
  • The judgment and orders of the High Court (Commercial Division) set aside as a nullity.
  • The cross-appeal dismissed.
  • The record sent back to the Commercial Court for disposal before another judge.
  • Costs to abide the re-hearing ordered.

Key headnotes

Court Orders — Interim Orders by Registrars — Obligation to Obey
An interim order issued by a Registrar of the Court of Appeal is a lawful court order which must be obeyed; once a party knows of an order, whether null or valid, regular or irregular, it cannot be disobeyed, and proceedings conducted in disregard of such an order may be rendered a nullity.
Costs — Power to Set Aside Costs Order of Another Judge
A judge cannot set aside or vary an order for costs made by another judge in a concluded suit; such an order can only be reviewed by the same judge under section 83 of the Civil Procedure Act and Order 46, or set aside on appeal to an appellate court.
Advocates' Discipline — Jurisdiction — Suspension Without Formal Proceedings
Except for contempt committed in the face of the court under section 74(1)(k) of the Advocates Act, disciplinary offences such as fraudulent professional misconduct must be referred to the Disciplinary Committee of the Law Council; a court cannot summarily try and suspend an advocate, and to do so without formal proceedings violates the non-derogable right to a fair hearing under Articles 28 and 44(c) of the Constitution.
Statutory Interpretation — Advocates Act s.69 — Offence in Face of Court
Section 69 of the Advocates Act, barring recovery of costs in respect of anything that constituted an offence under the Act, presupposes the commission of an offence proved against the advocate in the face of the court, and does not confer jurisdiction to deny costs where no such offence has been proved.
Bias — Real Likelihood Test — Judge Acting Under Stress
Where right-minded persons would think there was a real likelihood of bias, the decision cannot stand; a judge who succumbs to provocation and acts on extraneous considerations, allowing stress to colour the judgment, exhibits such likelihood of bias as to occasion a miscarriage of justice.

Legislation cited (22)

  • Advocates Act (Cap. 265) s.17
  • Advocates Act (Cap. 265) s.20
  • Advocates Act (Cap. 265) s.25
  • Advocates Act (Cap. 265) s.50
  • Advocates Act (Cap. 265) s.51
  • Advocates Act (Cap. 265) s.54
  • Advocates Act (Cap. 265) s.61
  • Advocates Act (Cap. 265) s.62(1)
  • Advocates Act (Cap. 265) s.62(5)
  • Advocates Act (Cap. 265) s.69
  • Advocates Act (Cap. 265) s.74(1)(k)
  • Civil Procedure Act s.27
  • Civil Procedure Act s.83
  • Civil Proceeding Act s.66
  • Order 46 Civil Procedure Rules
  • Judicature Act s.10
  • Judicature Act 2000 s.41(1)(v)
  • Court of Appeal Rules rule 32
  • Constitution of Uganda Article 28
  • Constitution of Uganda Article 44(c)
  • Advocates (Taxation of Costs) (Appeal and References) Regulations S.I. 267-5 Regulation 3
  • Court of Appeal (Judicial Powers of Registrars) Practice Direction No. 1 of 2004 Rule 5

Cases cited (7)

  • Burundi Tobacco Co. S.A.R.L & Leaf Tobacco & Commodity (U) Ltd v BAT (U) Ltd (Civil Appeal Reference No. 22 of 2010)
  • Lweza Clays Ltd & Anor v Tropical Bank Ltd & Anor (Civil Application No. 129 of 2009)
  • Stanbic Bank (U) Ltd & Anor v The Commissioner General URA (Miscellaneous Application No. 0042 of 2010)
  • Amrit Goyal v Harichand Goyal & 3 Others (Civil Application No. 109 of 2004)
  • R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256
  • R v Barnsley Licensing Justices, ex parte Barnsley [1960] 2 All ER 703
  • Re Trepia Mines
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.