Wakilii

Rwabajungu v Germany and Another (Civil Appeal No. 21 of 2006)

Court of Appeal · [2009] UGCA 68 · 2009 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from the High Court dismissing a reference against the Registrar's ruling on recoverability of taxed costs
Decision
Appeal dismissed; appellant not entitled to the taxed interlocutory costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal dismissed the appeal, holding that the late Rwabajungu was not lawfully entitled to the taxed costs of the interlocutory amendment application. The preliminary objection had been raised by counsel purporting to hold brief for UCBL — the party sought to be joined — without effective instructions. Even if instructions existed, the costs would have belonged to UCBL, not to Rwabajungu, so drawing and taxing the bill in his name was illegal. The court nevertheless rejected the reasoning that a subsequent order in the main suit that each party bear its own costs could vary or extinguish costs earlier awarded in an unappealed interlocutory matter.

Outcome

Appeal dismissed; appellant not entitled to the taxed interlocutory costs

Facts

The two respondents sued as representatives of parents of eleven students who died in a road traffic accident involving two lorries. The late Eldad Rwabajungu was equitable owner of one vehicle and was sued as second defendant, the vehicle having been acquired through a UCB loan. During the suit, the respondents applied to amend the plaint to add Uganda Commercial Bank Ltd as a defendant. At the hearing of that application, counsel Tumwesigye purported to hold brief for UCBL's advocate and raised a preliminary objection that any claim against the bank was time barred. The objection was upheld and the amendment application dismissed with costs. A bill of costs for the second defendant was taxed at UGX 909,000. The main suit was later dismissed, with each party ordered to bear its own costs. When the appellant sought to recover the taxed interlocutory costs, the Registrar and later the High Court on reference held they were not recoverable, giving rise to this appeal.

Issues

  1. Whether the appellant was entitled to costs of an interlocutory application emanating from a main suit that was time barred and subsequently dismissed.
  2. Whether the trial judge exercised his discretion judiciously in deciding the appellant's appeal.
  3. Whether the trial judge's decision constituted a miscarriage of justice to the appellant.

Orders

  • Appeal dismissed.
  • The respondents will have the costs of the appeal.
  • Each party will bear its own costs in the lower court.

Rules and key headnotes

Costs — Entitlement — Costs of interlocutory application belong to the party on whose behalf the objection was successfully raised
Where a preliminary objection in an interlocutory application is raised on behalf of a party sought to be joined, any costs awarded belong to that party, and a co-party cannot lawfully draw, present and tax the bill of costs in his own name.
Costs — Advocate acting without instructions — Effect on entitlement
An advocate who raises an objection on behalf of a party without effective instructions cannot confer on any other party an entitlement to costs arising from that objection.
Costs — Interlocutory orders — Effect of subsequent final order that each party bear own costs
Costs ordered in an interlocutory matter that are not appealed against cannot be varied by the trial judge in the final judgment, and a subsequent order that each party bear its own costs in the main suit does not affect them.
Costs — Time barred suits — Court's discretion to award costs to innocent party
A court has discretion, having considered the peculiar circumstances of a case, to award recoverable costs to an innocent party dragged to court in a time barred suit; the fact that a suit is time barred does not preclude an award of costs.

Legislation cited (3)

Cases cited (4)

  • Mukula International Ltd VS His Eminence Cardinal Nsubuga & another [1982] HCB 11
  • Francis Butangira v Debora H Namukasa (Civil Appeal No. 6 of 1989)
  • Jan Muhammed V Twenthsche [1932] EA 48
  • Devram Nanji Haridas Dawda [ ] EACA

Full judgment

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

Rwabajungu v Germany and Another (Civil Appeal No. 21 of 2006) [2009] UGCA 68 (1 January 2009)
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.