Akisoferi Ogola v Akika Othieno and Another (Miscellaneous Application 56 of 1998) [1999] UGHC 33 (11 February 1999)

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

HOLDEN AT M. ALE.

H. C. M. A NO 56 of 1998

(From Election Petition NO 2/1996)

$\mathbf{u} \mathbf{v} = \mathbf{v} \mathbf{v} \mathbf{v} + \mathbf{v} \mathbf{v} + \mathbf{v} \mathbf{v} + \mathbf{v} \mathbf{v}$ APFELLANT AKISOFERI MICHAEL OGOLA $\mathbb{R}^n \times \mathbb{R}^n \to \mathbb{R}^n$ versus

AKIKA OTHIENO EMIAHUEL

INTERIL ELECTORAL COLLISSION. **ISTOMDENTS**

BEBOIR ONE **HONOURABLE** $\mathbf{M}^{\bullet\bullet}$ JUSTICE AUGUSTUS KANIA

## JUDGMENT

This is an appeal brought under the provisions of Section. 61 of the Advocates Act 1970 and under Rule 3 of the Taxattan of costs (Ayneals and References) Rules (SI.359-6). The appeal is by Chamber Summons and 5 supported by the affidevit of Alisoferi Michael Ogola. By it the appellant is challenging the Maxation Order made on 31.5.1997 by the District Registrar, Pororo High Court District Registry. The respondent has filed the affidavit of Reuben A. A. Cwori of Owori and Company Advocates in reply. 10 $\overline{\phantom{a}}$

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The brief facts leading to this appeal are as follows. Following the 1996 Parliamentary elections in which he was an unsuccesful candidate the appellant filed election. Petition NO 2 of 1996 against the 1st respondent who was the successful candidate who was declared duly elected. The appellant lost the Election Petition to the 1st $\mathcal{L} \leftarrow \mathcal{L} \mathcal{L} \mathcal{L}$ Respondent who had obtained a Certificate from the presiding Judge to be represented by two counsel.

The 1st Respondent then filed his bill of costs which was taxed and passed in the sum of she 21.292.000= Of this the instruction fees of the leading counsel Mr. Owori was taxed at shs 10,000,000= while that of the second counsel Mr. Natsomi was taxed at shs 4,000,000=. The appellant was dissatisfied with this taxation order hence this appeal. The appellant filed six grounds of appeal namely:-

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(1) The appellant who lost the Election Tetition NC NT 2 of 1996 was ordered to pay costs which were allowed $10$ at shs 21.292.000= (Twenty one million, two hundred and ninety two thousand shillings only).

- The taxation order occassioned a miscarriage of Justice $(2)$ . because it was so excessive in the circumstances. - (3) The learned faxing Officer failed to apply the principles applied in Texation matters. 15 - $\left(4\right)_{n_{\alpha_{\alpha}}}$ The learned Taxing Officer erred in law and in fact when after granting instruction fees he went ahead to allow claims which were covered under instruction fees.

(5) The learned Taxing Officer errod in law and in fact 20 when he allowed claims which were not in accordance $\ldots$ : with the law.

The learned Taxing Officer erred in law and in fact when he awarded claims for disbursements and expenditure which were not proved and authorised by law.

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GISTRATE

In arguing the appeal Mr. Banwite Loarned Counsel for the appellant summarised and constricted the above grounds to four namely :-

- The learned Taxing Officer failed to apply the principles $(1)$ of taxation as a result of which he awarded an excessive sum thus causing a miscarriage of justice. - The Taxing Officer erred in law and fact in that car is $(2)$ : after passing and allowing instruction fees he allowed items covered by the instruction fees. - He erred in allowing claims not proved and authorised $(3)$ $10$ in law. - The Taxation order of the $\text{Taxin}_{\mathcal{C}}$ Officer caused a $(4)$ miscarriage of justice in that it was excessive in the circumstances.

In arguing ground 1 and 3 Mr. Bamvite submitted that the 15 Taxing Officer miscoplied the principles of taxation in the laid down in Prechard Raichard Ltd vs Quarry Services in that he failed to take into Ltd $/1972/E. A. 182$ consideration the principle that costs should not be allowed to rise to such a level that the accessibility of the courts 20 is restricted to the wealthy. He submitted that given the sum of she 14,000,000= allowed as instruction fees and the locality of Tororo District the effect of the Taxing Officer's order would be to exclude litigants from the courts. Mr. Bamwite argued that there was no justification for the 25 hefty instruction fees that were allowed. He contended that counsel for the 1st respondent completed the pleadings within a week, the hearing took 42 days and not many cases

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were cited thus making it a straight forwad and simple case not warranting such a large sum in costs. He pointed out that this court has power to set aside a taxation tax a bill or order retaxation if it is satisfied that the initial taxation had been done contrary to the principles of taxation. 5 He invited this court to either set aside the taxation or retax the bill. He suggested the figure of shs 3,000,000= for both council as a reasonable sum.

As regards the second ground Mr. Bamwite submitted that the learned Caxing Officer having allowed instruction fees he should not have allowed other claims for work necessary for the prosecution of the case. He argued items 2-55 of the bill of costs were claims relating to work necessary for the prosecution of the case covered by the instruction fees.

He submitted that items 58,70 and 86 in the bill of costs should not have been allowed and passed because they had not been proved. Thermatively he reconsidered the figures of shall 450,000= and shs 675,000= for item 70 and 86 respectively excessive and suggested the sums of shs 100,000= and shs 250,000= for items 70 and 86 respectively.

Lastly he argued that the taxation order occassioned a miscarriage of justice in that the total sum taxed of sha 21.292.000= was excessive and is likely to discourage the ordinary person in Tororo District from challenging electoral malpractices.


$10$

Counsel submitted that the Taxation also occassioned a miscarriage of justice because the order was $\mathtt{drivin}_\mathbb{G}$ the appellant to look for money he does not have and to pay a bill he should not have paid. It was counsel's prayer that the appeal be allowed with costs. Mr. Bamwite also relied on the affidavit of Akisoferi

Micheal Ogola the contents of which were rehearsed by his submissions.

Mr. Owori learned counsel for the 1st respondent who appeared with Mr. Natsoni submitted that before interferring with sum of shs 14,000,000= allowed in instruction fees the $10$ appollant should satisfy the court that the Taxing Officer exercised his judicial discretion with irregularity warranting interference by this court. He submitted that this court can interfor in very exceptional cases as was held in the case of Thomas James Arthur vs Myeri Electricity undertaking 15 /1961/ E. A. 492. Mr. Owori contended that the learned Taxing Officer rightly applied the principles of taxation and that the award in the instant case was in consonance with other cases. He cited Hise. App. HO 911/(b) /1997 Halmot where the leading and second counsel $20$ vs Adycbo & 2 others were allowed shs 15.942.000 and shs 6,000,000 respectively in instruction focs. In. Oweri argued that given the admitted political importance of election potitions the taxation was proper m. reso when no error is shown to have been committed by the Taxing Officer.

Counsel agreed as the general statement of the law that instruction focs cover all other expenses of things done in the prosecution of the case but argued the Advocates Renumeration & Taxation Rules 1982 as amended by S. I $3/93$ allows an Advocate

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cllant having **5** items 70 and 86 the appellant did not in his affidavit in challenge the reasons given by the. support of his appeal Taxing Officer for granting those awards. fir. Owori contended that counsel for the app consented to it^-. T.s 2-55 during the taxation hu could not •turn round now and say they wore wrongly\_allo--cd. J".o submitted that as the successful party thv 1st respondent was <sup>i</sup> entitled to the costs unc?.cr items 5o and that us for

**! <sup>I</sup>** 10 to have existed on the .f;ce of the record. me not to interfer with the taxation unless there has been a misapplication of the principles of taxation. Ho prayed for the dismissal of the appeal with costs. }VIr. <sup>15</sup> rfatsomi- 1earned c ounscl appearing wi-tirf[r. Owori fully. associated himself with the submission of the latter and added that the 2.corned faxing Officer rightly and judicio asly oxercis cd his discretion in awarding shs 14,000,000= in instruction foes to both counsel. **<sup>20</sup>** miscarriage of justice as there was no error apparent He invited ^r\* <sup>0</sup>wor^ finally siilsiittcd that there was no ease of shown

> As regards the first ground !.□?< Barawito submitted that the Taxing Officer failed to apply the principles of Taxation • a:; a result of which he awarded an excessive sum thus causing a miscarriage of justice.

exercises his 25 exercise txiis es-bablishcd principles. In matters of taxation the Taxing Officer discretion . lie is however ux-cctod to <sup>i</sup> discretion judiciously along certain

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These principles which have been laid down in the cases of Frenchand Raichand Itd f: Ann vs Quarry Services and adopted in Makulu Interactiona 1 LtC vs Cardinal Moubura & Ann /1962/HOB\_1 are generally $\tilde{t}h_{\rm c}/\tilde{t}:=$

- $\alpha$ costs should not be allowed-to-rise to such a as to confine access to the courts to 1.vcl the wealthy. - (b) A successful litigant ought to be fairly reimbursed for the costs he had to incur. - The general level of renumeration of Advocates $(c)$ $10.$ East be such as to attract recruits to the proffussion and - (d) So far as practicable there should be consistency in awards made.

The above are just guidelines for the faming Officer to exercise his powers of taxing judiciously- There are other 15 factors like the value of the subject matter, the prolimity of of the cose and the the proceedings, the complex memory fell of the value of money that may be in the back of the ... mind of the Taxing Officer when deciding on the quantum of costs to test and allow. 20

In his taxation ruling the learned District Registrar outlined the principles outlined above. He was therefore in my view alive to the need to follow these principles in his raling. On page 8 of the ruling he stated he was making the ruling well emans that even the legislature recognised the need to $25$ keep costs in Election Fotitions affordable by having them and heard in their local jurisdictions from where they I CERTIFY THAT A TRUE COPY OF THE ORIGINAL originate.

MAGISTRATE On the same page he adverted to SI NO 3/1996 which provides for the method of providing different fees for different types of jobs performed by Advocates thus applying the principle that the successful party should be adequately reimbursed for whatever he had to pay. On page 9 of the ruling the learned Ristrict Registrar dwelt at length the imporiance and the tedious nature of election potitions guarally and decided to make the awards of shs 10,000,000= end aps 4,000,000= to the load counsel and the second counsel of the 1st Respondent repactively because this particular. $10$ Fotition went into full hearing and took a total of 4% days. In this, in my view, though he did not put it in these words he was applying in practice the principle that Advocates must be properly remunerated to encourage young recruits into the proffession. With regard to keeping in 15 stop with awards in similar cases the learned District Registrar referred to the cases of Godfrey M Odych vs


Engold & Anr H. S. Election Potition NO 2/1996 where a figure of she 9.146.000= was allowed on the Potition having been disposed of on a preliminary objection and Gaesar M. Tokoma 20 vs: Interim Sheetoral Commission & Anr Slection Retition 3/1996 where she 8.612.000= was awarded where the Potition had been disposed of in a similar manner. From the roling of the learned District Registrar I find he adverted to the principles laid down in Premabend Raichard Ltd & Anr vs 25 Cuarry Corvious & one (Supra) and Kebula International Ltd vs Gardinal Fsubura & Anr (supra) and applied these principles in arriving at the award of the instruction fees.

A judge on appeal may interfer with a texation order by either setting it aside, ordering retaxation or even tax it himself.

This is the position in the following cases to which I was very helpfelly referred to by Ir. Deswite and Ir. Owori; Hicholas Monssos va Gulom Massin Virgui SCOA 6/95. Inteick Molumbi & Ann vs Sole Technics SCCA 11/94 and Attorney Control vy Unanda Blanket Hamufreturers (1973): Itd 5004001. 17/1903.

However the count should not interfer with the exercise of the distriction of the Maxing Officer murely because the costs allowed are high. In Monas Jones Arthur vs Nyori Electricity under toking /1961/ 3.4. 492 the defunct court of $10.$ Appeal For East -frica refused to interfer where the costs allowed were four times what should have been allowed. 'The' court hold that it could only have interferred if exceptional circuastenees existed. That has been held to be if the costs allowed have been manifestly excessive or low; See Nicholas $15$ Romanos vs Gulan Hussain & Ann Supra. Or that the taxation as dong in disrugand of the principles of taxation. In the linetant case it has not been demonstrated to my satisfaction that the instruction fees allowed were manifestly excessively high or that the learned District Registrar failed to apply 11 20 the principles, of taxation. On the contwary taking orders in similar cases, including NG Nisc. Application NO 911B/1997 Kenry Kalmot vs George Commas Advebo & 2 ons where the aggregate taxed costs strud at 39.421.000= , the costs here are very modest indeed. Mr. Beawite argued that the former could not 25 be used as a yard stick bleamse it is on appeal but he did not eite may decision which is finel. In Wa result I shall not interfer with the learned District Registrar's instruction fees of she 10,000,000= and she 4,000,000= availed to the 1st respondent's lermed Counsel and Counsel respectively.

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The first ground of appeal therefore falls..

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' he would have properly done son ns these items arc provided for in the 6 th Schedule of the Advocates Remuneration and As regards the second ground which Ur. Bcmiwite argued he complained that the Taxing Officer erred in law and in fac <sup>t</sup> in allowing items 2-55 in the bill of costs contrary to the law as laid down in Lialumbi. .jVnr JSo^^^ <sup>5</sup> aftcr iie h?,d allowed instruction fees ..which cover all-other work -• . necessary for prosecuting the case.. Mr. Owori submitted that the Taxing Officer in his ruling excluded items 2-25 . • complained of. Me argued . in the alternative that oven if .10 the Taxing Officer.;had included and allowed those items Taxation Rules 1932 as amended by S. I. NO 3/1993-.

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15 Registrar.. ) 20 is "borne out 25 the Instruction fees. <sup>o</sup> the Ins true tion fees\* the ground raised " before this court. At paragraph 2 of his ruling the learned District Registrar agreed with this submission and stated' I have carefully read the ruling of the learned District In it ho referred to the submission of the then . learned Counsel for the appellant objecting to allowing items "2-^5 for the reasons that they wore included in the . . Instruction fees which is precisely that in awarding the instruction fees he'was taking: into ' account the fact that the said items were part of Instruction fees.fl That this was what the Taxing Officer did by the hand written note he m^de at the right • hand top of page 3 of the bill of costs to the effect that the items should bo set off as they constituted item <sup>1</sup> being' From the record and the ruling I am of the view and find that the Taxing Officer dis allowed items • 2-25 of the bill of costs which he rightly held to be part <sup>I</sup> CERTIFY THAT THIS IS

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This second ground of appeal must therefore fail.

Regarding the third ground of appeal Mr. Brawite argued that item 58 relating to the proceedings of the 17.9.1996 should not have been allowed to the 1st respondent as the costs of that day were awarded to the appellant in any event against the Electoral Commission. Mr. Oweri on his part contended that as the overall successful party the 1st respondent was entitled to take the costs of 17.9.1996.

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As for items 70 and 86 the complaint of Mr. Behavite is that they are excessive and lower figures of she 100,000- and she $10$ 250,000=: should have been allowed instead of she 450,000=. and she 675.000= respectively. He also contended that alternatively for item 86 no ewerd ought to have been made after the Taxing Officer had made a finding that witnesses in respect of whom the claim is made were not necessary 15

I agree with Mr. Oweri that a successful party is entitled to costs as these follow the event. But these must be owerded. In respect of item 70 relating to the proceedings of 17.9.1996 the costs were woulded to the appellant against the 2nd respondent in any event. It can't be decided whether $\overline{20}$ because the 1st respondent did not ask for costs or no costs were worrded to him. The effect of the order of the learned trial Judge in my view was that whatever outcome of the Petition the appellant would be paid costs of that day by the Electoral Commission. The remedy of the 1st Respondent 25 was either to apply for the review of that order or to apport against lit wis remedy did not lie in filing a bill in respect of the proceedings of 17.9.1996.

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I would therefore allow the appeal on this item and set caide the order allowing she 450.000= under item 70. the 1st respondent elaimed shs 2.370.000= As for item 85 which was allowed at she 675.000 at the rate of she 150.000= per day. The Taxing officer allowed this 5 only in respect of the 1st respondent having disallowed the whole of the claim in respect of the witnesses and rightly so after finding witnesses were not necessary on this occassion. The ground and the only ground on which this court is being invited to interfer with this figure. is that it is excessive. As already discussed above with the case of Thomas James Arthur vs Nyeri Electricity Undertaking (Super) the court will interfer with the quantum of damages in very exceptional circumstances. The special circumstances enviseded one that the quantum 15 thes been allowed contrary to the principles of Taxation or that it is nemifostly excessive or manifestly low. According to Mr. Beawite the appropriate figure should facve been she 250,000= short of submitting the figure is exaggerated he did not to my satisfaction denonstrate 20 that item 66 was allowed contrary to the principles of Texation or armifactly excessive. I accordingly find my self enable to interfer with the taxing of item 85.

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As fir. Benwite only addressed me on items 2-25, 58,70 and 66 I take it that the appellant is satisfied with the 25 rest of the items of the bill of costs.

Lastly Mr. Brawn to complete nod that the total of shs 21.292.000= in taxed costs was excessive and occassioned a miscorriage of justice because the appellant is forced

to look for the sum which he does not have and to pay for what he should not pay in the first place. He also argued that such an award will in the future discourage ordinary nersons from Tororo District from chellenging electoral malpractices.

$10$

Not cvery decision with which a party is dissutisfied can be held to occassion a miscarriage of justice. A decision of a court is said to occassion a miscarringe of justice if there is a prime facie case that an error has been made on the record; Intryo Olumu vs. Frensisko Amudho & 2 ors. /1979/ HOR 229. A miscourringe may also be said to have been occassioned where on the record there have been misdirections on matter of fact or law or where has been unfairness in the course of the trial. See Fide Birchwa vs Fulcificm Richwelland ECCS TO 2/92 (Unreported).

That the appellant does not have the money to meet the costs of his petition and that the ordinary citizen may be put off from challening clockoral malgaratioes are not the criteria in determining whether the decision has occassioned a miscarringe of justice. The impouniesity of a litigant or of 20 the public for that matter should not present an excuse to dony a successful party his costs properly carned. Having held above that save for item 58 the learned District Registrar taxed the bill of costs according to the universally accepted principles of transition. This ground 25 of appeal accordingly fails,


In the result, save for having disallowed item 70 of the bill of costs for the sum of she 450.000 the appeal must fail on all other grounds and items. The appeal is accordingly dismissed with an order that the intial $\overline{5}$ thundion order for she 21.292.000= shell be adjusted by the sum of she 450.000= discllowed under item 70 of the bill of costs. The 1st respondent shell take the $3/4$ of the costs of the appeal.

I. CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL sgd. MAGISTRATE S. LANIA... JUDGE

11.2.1999

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