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Muyanja Mbabaali v Birekeraawo Nsubuga Mathias (Civil Reference 73 of 2012)

Court of Appeal · [2013] UGCA 2054 · 2013 Reference Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference to a single Justice from a decision of the Registrar (taxing officer) under Rule 110 of the Court of Appeal Rules, arising from a bill of taxation in an election petition appeal.
Decision
Reference dismissed; taxation of the respondent's bill of costs to proceed.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On a reference under Rule 110 of the Court of Appeal Rules, the single Justice held that the pending constitutional petition and stay applications, to which the respondent was not a party, gave no valid reason to prevent the Registrar from taxing the respondent's bill of costs; Article 137(7) did not assist the appellant. The court further held the appellant failed to prove bias, having identified no particular Registrar, and that failure to note new lawyers was mere oversight remediable by adjournment, not bias under either the real-likelihood or reasonable-suspicion test. The reference was dismissed with costs to the respondent on the basis of one counsel only.

Outcome

Reference dismissed; taxation of the respondent's bill of costs to proceed.

Facts

The appellant and respondent contested the Bukoto South parliamentary seat in the February 2011 election, won by the appellant. The respondent successfully petitioned the High Court at Masaka, which annulled the appellant's election for lack of academic qualifications and ordered a bye-election, awarding the respondent costs. The Court of Appeal dismissed the appellant's Election Petition Appeal No. 36 of 2011 in May 2012 with costs to the respondent. The respondent lodged a bill of costs for taxation. The appellant objected, requesting that the bill be referred to a single Justice, alleging the Registrar was biased for failing to record his new lawyers (KMT Advocates) and serving process on the old lawyers, and that taxation should await disposal of Constitutional Petition No. 22 of 2012 and Applications Nos. 20 and 21 of 2012, which the appellant had filed against the Attorney General and Electoral Commission. The respondent was not a party to those constitutional proceedings. The Assistant Registrar referred the matter to a single Justice without specifying a decision on law or principle.

Issues

  1. Whether the existence of a pending constitutional petition and applications, to which the respondent was not a party, was a valid reason to prevent the Registrar from proceeding with taxation of the respondent's bill of costs.
  2. Whether the Court Registrar was biased against the appellant by failing to note on the record his new lawyers and by serving court process upon the old lawyers.
  3. Whether a valid reference under Rule 110 could lie where the Registrar made no decision on a matter of law or principle.

Orders

  • The reference is dismissed.
  • Costs of the reference awarded to the respondent on the basis of only one counsel.

Rules and key headnotes

Costs — Reference on Taxation — Nature of Reference under Rule 110 Court of Appeal Rules
A reference under Rule 110 of the Court of Appeal Rules is in the nature of an appeal; it presupposes that the Registrar, as taxing officer, has first made a decision on a matter of law or principle from which a dissatisfied party may refer the matter to a single Justice.
Costs — Effect of Pending Constitutional Petition — Article 137(7) Constitution
The existence of a pending constitutional petition and stay applications, to which the party seeking taxation is not a party, is not a valid reason to prevent that party from moving the Registrar to tax its bill of costs; Article 137(7) merely requires the Constitutional Court to give priority to constitutional matters and does not licence violation of other constitutional rights.
Bias — Tests for Bias — Burden of Proof and Identification of Judicial Officer
A party alleging bias bears the burden of proving it, which can only be discharged by clearly identifying the individual judicial officer alleged to be the author of the bias; an allegation against an entire registry as an institution, without naming an officer, cannot succeed.
Bias — Real Likelihood Test and Reasonable Suspicion Test
Courts apply two tests for bias: the real-likelihood test, which examines whether the officer acted under some pecuniary, proprietary or kindred interest; and the reasonable-suspicion test, which asks whether right-minded people would conclude there was a real likelihood the officer would favour one side unfairly. Mere surmise, conjecture or wishful thinking is insufficient.
Bias — Administrative Oversight Distinguished from Bias
A registry's failure to record a party's newly instructed lawyers and its continued service of process on former lawyers, where the party was never excluded from proceedings, amounts to a mere administrative oversight remediable by adjournment and does not constitute bias.

Legislation cited (5)

Cases cited (7)

  • Kirya Grace Wanzala v Daudi Ssereko (Court of Appeal Reference No. 39 of 2012)
  • Professor Isaac Newton Ojok v Uganda (Criminal Appeal No. 33 of 1991)
  • Nasur v Uganda (Criminal Appeal No. 1 of 1982)
  • G.M. Combined (U) Ltd v A.K. Detergents Ltd and 4 Others (Civil Appeal No. 7 of 1998)
  • Court of Appeal of Uganda Election Petition Appeal No.4 of [year unclear]: Obiga Mario Kania Vs Electoral Commission and Wadri Cosiano Ezati
  • R v Sussex Justices, Ex parte McCarthy [1924] 1 KB 256
  • Attorney General v Major General Tinyefuza (Constitutional Petition No. 1 of 1997)

Full judgment

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

Muyanja Mbabaali v Birekeraawo Nsubuga Mathias (Civil Reference 73 of 2012) [2013] UGCA 2054 (9 April 2013)
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.