Wakilii

M s Semuyaba, Iga & Co. Advocates & Another v Attorney General of the Republic of South Africa & 2 Others (Taxation Application 315 of 2023)

High Court · [2023] UGCOMMC 219 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Determination of preliminary objections referred by Taxing Officer to High Court under Order 50 rule 7 Civil Procedure Rules following dismissal of garnishee proceedings
Decision
Preliminary objections dismissed; taxation proceedings to continue

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court ruled that a party named in dismissed proceedings is entitled to costs if successful, notwithstanding limited participation. A sovereign entity asserting and establishing jurisdictional immunity may recover costs of defending that immunity without waiving immunity, as such recovery relates to acts for which immunity was asserted. A party wrongly joined as applicant remains liable for costs of being struck off. All objections to taxation overruled and Taxing Officer directed to proceed.

Outcome

Preliminary objections dismissed; taxation proceedings to continue

Facts

Yu Sung Construction Limited obtained a consent judgment at the East African Court of Justice against the Government of South Sudan for USD 49,398,473.91 plus costs of USD 8,025,382.38. The judgment remained unpaid. The applicants initiated garnishee proceedings in Uganda's Commercial Court seeking to attach assets held by two garnishees on behalf of South Sudan. The garnishees raised preliminary objections on multiple grounds including jurisdictional immunity. On 6 January 2023, the High Court upheld all objections and dismissed the application with costs to the respondent and garnishees. The 2nd garnishee then sought taxation of its costs. At the taxation hearing, counsel for the judgment debtor raised three objections: that the law firm (having been struck off as a party) was not a proper party to taxation; that the 2nd garnishee could not maintain taxation proceedings given its jurisdictional immunity; and that costs should not have been awarded to the respondent who never participated. The Taxing Officer referred these issues to the High Court.

Issues

  1. Whether it was erroneous of the Court to have awarded costs to respondent when it never participated in the proceedings.
  2. Whether in light of its jurisdictional immunity, the 2nd garnishee can maintain taxation proceedings before this Court.
  3. Whether M/s Semuyaba, Iga & Co. Advocates is a proper party to the taxation application.

Orders

  • All three preliminary objections overruled.
  • Taxing Officer directed to proceed with taxation of the 2nd garnishee's bill of costs.

Rules and key headnotes

Costs — Entitlement of Successful Party — Participation Not Required
Once successful, a person named as a party to proceedings is entitled to an award of costs, even where that party did not actively participate in the proceedings but benefited from objections successfully raised by other parties.
Sovereign Immunity — Constructive Waiver — Voluntary Participation Required
For participation in litigation to constitute constructive waiver of sovereign immunity, the decision to participate in such litigation must be altogether voluntary on the part of the sovereign state entity. Participation solely for the purpose of raising a jurisdictional issue does not constitute waiver of immunity.
Sovereign Immunity — Recovery of Costs — No Waiver by Taxation
A sovereign entity that successfully asserts jurisdictional immunity may recover costs of the proceedings in which immunity was established without waiving that immunity, as the recovery of such costs is deemed a continuation of the involuntary action and not fresh litigation.
Costs — Liability of Wrongly Joined Party
A party wrongly joined as an applicant to proceedings is liable to pay the costs of being struck off or otherwise terminated for that reason.
Costs — Discretion of Court — General Principles
In determining the issue of costs, the Court is entitled to look at inter alia the conduct of the parties, the subject of litigation, the circumstances which led to the institution of legal proceedings, the events which eventually led to their termination, and the stage at which the proceedings terminated. As a general rule, costs follow the event.

Legislation cited (4)

Cases cited (3)

  • Mighell v Sultan of Johore [1894] 1 QB 149
  • Kahan v Pakistan Federation [1951] 2 KB 1003
  • NML Capital Ltd v Republic of Argentina [2011] UKSC 31

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

M s Semuyaba, Iga & Co. Advocates & Another v Attorney General of the Republic of South Africa & 2 Others (Taxation Application 315 of 2023) [2023] UGCommC 219 (29 December 2023)
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.