Wakilii

Odaret and Another v Eyagu and Another (Civil Appeal 65 of 2023)

High Court · [2024] UGHC 148 · 2024 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from ruling and orders of Chief Magistrate's Court of Katakwi in Miscellaneous Application No. 03 of 2023, which reviewed an earlier costs order made in Civil Suit No. 029 of 2022
Decision
Appeal dismissed; lower court ruling setting aside costs order confirmed; each party to bear own costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal and upheld the Chief Magistrate's decision to set aside a costs order. The court held that where a party had been effectively withdrawn from a suit in 2017 but continued to participate in proceedings and filed a new written statement of defence without leave of court, these actions constituted errors apparent on the face of the record. The costs order made in 2022 was granted on the erroneous premise that the appellant was still a party to the suit, and a successful party may be denied costs where guilty of misconduct relating to the litigation. The trial magistrate was not functus officio as the review application concerned only the costs order and not the merits of the underlying suit.

Outcome

Appeal dismissed; lower court ruling setting aside costs order confirmed; each party to bear own costs

Facts

The respondents filed Civil Suit No. 18/2016 which was transferred and eventually registered as Katakwi Civil Suit No. 29/2022. On 27 June 2017, counsel for the defendants informed court that the second defendant (2nd appellant) had been dropped from the case. The suit proceeded against the first defendant only. However, on 21 December 2021, the 2nd defendant appeared in court and stated he was present as a party, not a witness. The 1st plaintiff disputed this, stating a settlement had been reached but the 2nd defendant failed to appear to execute a consent withdrawal. On 29 June 2022, the 2nd defendant filed a new written statement of defence without leave of court. On 10 October 2022, the 1st respondent withdrew the suit against the 2nd appellant, and the Chief Magistrate awarded costs to the 2nd appellant. The 1st respondent then filed MA 03/2023 seeking to review and set aside the costs order, arguing the withdrawal was meant to be without costs. The Chief Magistrate granted the review application, finding that the 2nd appellant had been withdrawn from the suit in 2017 and his subsequent participation constituted errors on the record. The 2nd appellant appealed.

Issues

  1. Whether the trial magistrate erred in law and fact when he failed to award the 2nd appellant costs in Miscellaneous Application 003/2023.
  2. Whether the trial magistrate erred in law and fact when he set aside the costs awarded to the 2nd appellant in Civil Suit 29/2017.
  3. Whether the trial magistrate was functus officio when entertaining MA 03/2023 given the existence of a pending appeal (CA 37/2023).
  4. Whether a party who has been withdrawn from a suit can subsequently claim costs when that withdrawal is later reviewed.

Orders

  • Appeal dismissed.
  • Ruling and orders of the lower court upheld.
  • Each party to bear its own costs.

Rules and key headnotes

Civil Procedure — Costs — Discretion to deny costs to successful party — Misconduct relating to litigation
A successful party may be denied costs where he or she has been guilty of some misconduct relating to the litigation or the circumstances leading up to the litigation.
Civil Procedure — Withdrawal of suits — Effect of withdrawal — Subsequent participation in proceedings
Where a party has been effectively withdrawn from a suit and such withdrawal has been communicated to court by counsel, any subsequent appearance by that party as a defendant and the filing of pleadings without leave of court constitutes illegal action and an error apparent on the face of the record.
Civil Procedure — Review — Powers of court — Setting aside orders made on erroneous premise
A court has power under section 82 of the Civil Procedure Act to review and set aside an order for costs where such order was made on an erroneous premise that a party was still a party to the suit when in fact they had been withdrawn from the proceedings.
Administrative Law — Functus officio — Review applications — Pending appeals
A trial court is not functus officio when entertaining a review application concerning a costs order where the costs order is not the subject of a pending appeal, even though an appeal on the merits of the underlying suit is pending, and the party seeking review was not a party to the appeal.

Legislation cited (4)

Cases cited (5)

  • Father Nanensio Begumisa and Three Others v Eric Tiberaga (Supreme Court Criminal Appeal No. 17 of 2000)
  • Kifamunte Henry v Uganda (Supreme Court Criminal Appeal No. 10 of 2007)
  • Lovinsa Nakya v Nsibambi [1980] HCB 81
  • Cyprian Trade Agencies Ltd v Paphos Wine Industries Ltd [1951] 1 All ER 873
  • Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225

Full judgment

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

Odaret and Another v Eyagu and Another (Civil Appeal 65 of 2023) [2024] UGHC 148 (26 March 2024)
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.