Kampala District Land Board v Babweyaka & 3 Others (Civil Reference 2 of 2009) [2009] UGSC 37 (7 May 2009)

# Kampala District Land Board v Babweyaka & 3 Others (Civil Reference 2 of 2009) [2009] UGSC 37 (7 May 2009) [ Share this document on WhatsApp opens in new tab __](https://api.whatsapp.com/send?text=Kampala+District+Land+Board+v+Babweyaka+%26+3+Others+%28Civil+Reference+2+of+2009%29+%5B2009%5D+UGSC+37+%287+May+2009%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2009%2F37%2Feng%402009-05-07) [ Share this document on X opens in new tab __](https://twitter.com/intent/tweet?text=Kampala+District+Land+Board+v+Babweyaka+%26+3+Others+%28Civil+Reference+2+of+2009%29+%5B2009%5D+UGSC+37+%287+May+2009%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2009%2F37%2Feng%402009-05-07) [ Share this document on Facebook opens in new tab __](https://www.facebook.com/sharer/sharer.php?u=https://ulii.org/en/akn/ug/judgment/ugsc/2009/37/eng@2009-05-07) [ Share this document on LinkedIn opens in new tab __](https://www.linkedin.com/sharing/share-offsite/?url=https://ulii.org/en/akn/ug/judgment/ugsc/2009/37/eng@2009-05-07) [ Share this document by email __](mailto:?subject=Take%20a%20look%20at%20this%20document%20from%20ULII:%20Kampala%20District%20Land%20Board%20v%20Babweyaka%20&%20%E2%80%A6&body=https://ulii.org/en/akn/ug/judgment/ugsc/2009/37/eng@2009-05-07) __Save [ Download DOC (37.0 KB) ](/en/akn/ug/judgment/ugsc/2009/37/eng@2009-05-07/source) Toggle dropdown * [Download PDF](/en/akn/ug/judgment/ugsc/2009/37/eng@2009-05-07/source.pdf) Report a problem ##### Is there something wrong with this document? Problem category *Incorrect informationMissing informationNo PDF downloadDocument is emptyDocument is not accessible on my deviceOther What's the problem? * Your email address * CancelReport problem __ * Share * [ Download DOC (37.0 KB) ](/en/akn/ug/judgment/ugsc/2009/37/eng@2009-05-07/source) * [Download PDF](/en/akn/ug/judgment/ugsc/2009/37/eng@2009-05-07/source.pdf) * * * * * Report a problem __ ##### Kampala District Land Board v Babweyaka & 3 Others (Civil Reference 2 of 2009) [2009] UGSC 37 (7 May 2009) Copy citation __Save * __Document detail * __Related documents Citation Kampala District Land Board v Babweyaka & 3 Others (Civil Reference 2 of 2009) [2009] UGSC 37 (7 May 2009) Copy Media Neutral Citation [2009] UGSC 37 Copy Court [Supreme Court of Uganda](/en/judgments/UGSC/) Case number Civil Reference 2 of 2009 Judges [Okello, JSC](/en/judgments/all/?judges=Okello%2C%20JSC) Judgment date 7 May 2009 Language English Summary Read full summary __ ##### Ask AI Ask questions and understand this document faster using AI. __Ask AI * * * Skip to document content _**THE REPUBLIC OF UGANDA**_ _**IN THE SUPREME COURT OF UGANDA**_ _**AT MENGO**_ _**(CORAM: JUSTICE G. M. OKELLO, JSC. )**_ _**REFERENCE NO. 02 OF 2009**_ _**B E T W E E N**_ _**KAMPALA DISTRICT LAND BOARD: :::::: :::::: APPLICANT**_ _**A N D**_ _**VENANSIO BABWEYAKA & 3 OTHERS: :::::: :::::: RESPONDENT**_ _**(A reference from the decision of the taxing officer in Civil Appeal No. 02 of 2007)**_ _**RULING OF JUSTICE G. M. OKELLO, JSC:**_ This ruling is in respect of a preliminary objection challenging the competence of this reference. The applicant and one George Mitala were the appellants in Civil Appeal No. 02 of 2007 which they lost in this court with costs to the respondents. The respondents’ bill of costs was taxed by the taxing officer and allowed at Ug. Shs. 20,502,500= of which Ug. Shs. 20,000,000= was awarded as instruction fee. Kampala District Land Board, the applicant, was dissatisfied with that decision and wrote a letter dated 21 October 2008, addressed to the Registrar of this court requesting for a reference of that decision to a single judge of this court in accordance with rule 106(1) of the Rules of this court. In the same letter, the applicant also requested for a copy of the taxation proceedings to enable him draw a Memorandum of Reference. The letter was copied inter alia, to M/s. Kavuma-Kalenge & Co. Advocates, Counsel for Mr. Mitala. Eventually, the applicant drew and filed a memorandum of reference with the record of the reference. The memorandum of reference set out the grounds on which the reference is based. It also indicated in the title, Kampala District Land Board as the Applicant with Venansio Babweyaka & 3 others as the respondents. The memorandum was copied to M/s. Bamwe & Co. Advocates one of the Firms of Advocates that represented the respondents in the appeal. When the reference was called for hearing before me, Mr. Blaze Babigumira appeared for the respondents with Mr. Omony Stanley from Muhimbura & Co. Advocates, another Firm of Advocates that had represented the respondents in the appeal. Mr. Mutyaba Bernard of Sendege & Co. Advocates appeared for the Applicants. With leave of this court, Mr. Babigumira raised a preliminary objection challenging the competence of the reference. He argued, citing _**[Tibebaga - vs - Fr. Norsensio Beguma& Others SCC Application No. 18 of 2002](/akn/ug/judgment/ugsc/2003/14)**_, that a reference is in the nature of an appeal. He stated that the instant reference is incompetent in as far as the applicant, in his Memorandum of Reference, left out Mitala when the decision he is challenging is against both of them. He criticised the applicant for failure to serve a copy of the Memorandum of Reference on Mr. Mitala. He reasoned that any decision reducing the amount of costs awarded by the taxing officer would be highly prejudicial to the respondents as it would affect or interfere with the respondents’ option to recover the costs against Mitala alone without him being heard. He opined that whatever happens to this application, the judgment creditors’ right to recover the costs awarded against Mitala alone still stands. He relied on _**Ahmad Bin Ahmad Kassim Kasais - vs - Syed Abdalla 1958 EA 60**_ for the proposition that the reference is incompetent. In that case, the defunct Court of Appeal for Eastern Africa dismissed the appeal for incompetence. The decision which the appellant challenged in that appeal was against the appellant and another defendant, B. but the appellant did not name B. in the title of the appeal nor served the record of the appeal on B. The court being concerned to protect the interest of B. from the potential damage that would ensue if the judgment against the appellant was set aside, dismissed the appeal. Mr. Babigumira also cited _**Bitahwa Nyine Samson - vs - Ishanga Ndyanabo, Election Petition Appeal No. 14 of 2008.**_ This is a Court of Appeal decision that followed the dicta in _**Ahmad Bin Ahmad**_ (supra). In that case, the Court of Appeal also dismissed the appeal because the decision which the appeal was challenging was in favour of the respondent and the Electoral Commission but the appellant neither made the Electoral Commission a party to the appeal nor served a copy of the record of appeal on it.__ On the basis of these authorities, Mr. Babigumira prayed that the objection be upheld and the reference be dismissed with costs for being incompetent. Mr. Mutyaba sought a short adjournment to enable him study the authorities cited by Mr. Babigumira before he could meaningfully make his response. His reason was that he was taken by surprise. In the interest of justice, I allowed him an adjournment to the following morning at 9.30 a.m. On the adjourned date, Mr. Mutyaba submitted that the reference was not incompetent. He stated that neither Mr. Mitala nor his lawyer appeared at the taxation hearing even though his counsel was duly served with the notice of the taxation hearing date. Learned counsel pointed out that the letter requesting for the reference was copied to M/s. Kavuma-Kabenge & Co. Advocates, counsel for Mr. Mitala and that even though the notice for the hearing of the reference was served on the same Firm, neither Mr. Mitala nor his counsel appeared at the reference hearing. According to counsel, the failure showed that Mr. Mitala was satisfied with the costs awarded. On the authorities cited by Mr. Babigumira, Mr. Mutyaba submitted that those cases were distinguishable from the instant reference in that the reduction in the costs awarded would not affect or prejudice the interest of Mr. Mitala as he is not dissatisfied with the present award. He finally prayed that the preliminary objection be dismissed. Mr. Omony Stanley replied on behalf of the respondents. He stated that since there was no dispute firstly, that the costs awarded were against the applicant and Mitala, secondly, that the reference is in the nature of an appeal, the letter requesting for the reference that was copied to Mr. Mitala’s lawyer was merely an expression of an intention to prefer a reference against the decision of the taxing officer. Applicant ought to have included Mitala’s name in the title of the Memorandum of Reference and that the Memorandum and the record of the reference should have been served on Mr. Mitala or his lawyers. It was then that court would have known whether Mitala was not interested in challenging the decision of the taxing officer. He reiterated the respondents’ prayers that the objection be upheld. Upon considering the above submissions of counsel for both parties, the authorities cited and after perusing the record of the taxation proceedings, I am satisfied that the taxing officer’s decision which the reference seeks to challenge is against the applicant and Mr. Mitala together as appellants in that appeal which they lost. The costs could be recovered from either or both of them. I also accept that a reference from the decision of a taxing officer to a single judge is in the nature of an appeal analogous to what was stated in _**Tibebaga case**_ (supra) that _**“a reference from a single judge to a full bench is in the form of an appeal.**_ In that regard, the principle laid down in _**Ahmad Bin Ahmad**_ (supra) is applicable to a reference as well. It was therefore, an error on the part of the applicant not to have included Mr. Mitala as a party to the reference. The argument that Mr. Mitala did not object to the costs awarded is not tenable because he was not served with the memorandum and record of Reference even though the letter requesting for the reference was copied to his lawyers. It is only after serving him with the memorandum and record of reference that it could be known whether he, Mitala, was satisfied with the costs awarded and did not want to challenge the decision of the taxing officer. Even if he was satisfied with the award, the applicant could still have made him one of the respondents in the reference. As it is, and on the authority of _**Ahmad Bin Ahmad**_ (supra) I accept that the reference is incompetent and I accordingly dismiss it with costs. _**Dated at Mengo this 7**_ _**th**_ _**day of May 2009.**_ _**G. M. OKELLO**_ _**JUSTICE OF THE SUPREME COURT**_ 6 #### __Related documents #### More documents like this one ▲ To the top >