Akisoferi v Akika & Another (Civil Appeal 18 of 1999) [1999] UGCA 29 (29 June 1999)


Muzamiru Kibeedi ADVOCATE

## AT KAMPALA

# CIVIL APPEAL NO. 18 OF 1999

**CORAM**

## HON. MR. JUSTICE C. M. KATO, JA HON. MR. JUSTICE G. M. OKELLO, JA HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, JA.

::::::::::::::::: APPELLANT AKISOFERI MICHAEL OGOLA ::::::::

#### **VERSUS**

AKIKA OTHIENO EMMANUEL & ANOTHER ::::::::RESPONDENTS

# JUDGMENT OF THE COURT

This is an appeal against an award of costs by the High Court amounting to $20,842,000/$ = in an election petition.

The background of the appeal is briefly as follows: In 1996 the appellant, Akisoferi Michael Ogola, unsuccessfully contested parliamentary elections against the first respondent, Akika Othieno Emmanuel who was the successful candidate. The appellant filed a petition challenging the results of the elections. The petition was dismissed with costs to the respondent. The District Registrar taxed the costs at 21,292,000/=. The appellant appealed to the High Court against the amount awarded; the judge who dealt with the appeal dismissed it although he ordered a reduction of 450,000/= from the amount awarded by the District Registrar.

The appellant has now appealed against the decision of the High Court.

Four grounds of appeal were framed. They are:

- The learned trial Judge erred in law and in fact when he held that by merely outlining the Principles of Taxation in $1.$ the Ruling of 31<sup>st</sup> January, 1967, the Taxing Officer had adverted to the Principles of Taxation, without substantiating how applied the relevant principles to the case before him. (sic) - The learned trial Judge erred in law and in fact when after $2.$ upholding the appellant's ground that items 2-55 should not have been awarded, went ahead to wrongly find that the Taxing Officer disallowed those items yet the Taxing Officer clearly allowed the said items in his ruling and the said items were not taxed off from the bill of Costs. - The learned trial Judge erred in law and in fact when after 3. having found that the items relating to the proceedings of 17.9.96 should have been disallowed, failed to order a fresh taxation of the whole Bill of Costs and went ahead to act irregularly by taxing off only shs.450,000/=. - The learned trial Judge erred in law and in fact when he $4.$ failed to exercise the duty imposed on a first appellate court, namely to scrutinise the whole case anew and reach its own conclusion as a result of which the learned Judge came to a

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wrong decision that the decision of the Taxing Officer did not occasion miscarriage of Justice yet there were errors apparent on record.

Mr. Bamwite learned counsel for the appellant argued the four grounds separately. Regarding the first ground, he submitted that both the taxing master (District Registrar) and the judge did not properly apply to this case one of the principles which govern awarding of costs. He in particular singled out the principle which says that costs should not be allowed to rise to such level so as to confine access to the courts only to the wealthy.

Mr. Owori, learned counsel for the respondent, was of the view that both the Judge and the taxing officer were alive to the principles relating to taxation and they correctly applied them.

The case of: Premchand Raichand Ltd. And Another v Quarry Services of East Africa Ltd. And others [1972] EA 162 considered and laid down some principles which should be followed or borne in mind when carrying out taxation. The principles relevant to this case are:

- That the court will only interfere with an award of costs by the $1.$ taxing officer if such costs are so low or high that they amount to an injustice to one of the parties. - That costs must not be allowed to rise to such a level so as to $2.$ confine access to courts only to the rich. - That a successful litigant ought to be fairly reimbursed for costs he $3.$ or she has to incur. - That the general level of remuneration of advocates must be such 4. so as to attract recruits to the profession.

That as fa1 as possible there should be some consistency in ttie award of costs.

The judgment of the learned judge indicates that he and the taxing officer were aware of the existence of these principles, which they both outlined. what this court is concemed with is whether the judge applied them to the facts before him. It is not enough merely to outline or state <sup>a</sup> principle, its application to a particular set of facts must be clearly demonstrared. considering all the circumstances surrounding this case, we are of the view that the judge did not appry the second principle stated above; if he had properry apprieci it to the facts of this case he would nor C jhuue confirmed figures of 14,000,000/: for the rwo counsel which was definitely on the higher side of the scale. It is not in dispute that the petition lasted for four and a half days, but we still consider the amount awarded to be in favour of the rich not the poor. we observe that one of the cases relied upon by reamed judge was rhat of Henrv Makmot <sup>v</sup> Georse Cosmas Advebo and 2 others (Misc. Application No.9l lB of I997 where a figure of 39,42r,000/= was awarded as costs. This case is said to be still pending on appeal, so it does nor provide a good authority on the matter. In our view a figure of 7,000,000/\_ for the leading counsel Oilili::2's00'000/ for the junior counsel would have been

For these reasons we are satisfied that the appeal was well raken, it is accordingly allowed. L.<i.e &eeend ground of this

That leads us to the second ground ofthis appeal. In rhis ground the appellant's main complaint is rhat items 2-55 of the bilr of cosrs should have been disallowed as they were carered for in item i. Mr. Bamwite argued that these costs were part of instruction fees which

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appeared in item 1 of the bill of costs. He supported his argument with: Patrick Makumbi and another v Sole Electrics (U) Ltd. [S. C. Civil appeal <u>No.11/94</u>]. The learned counsel further argued that the judge misdirected himself when he held that these items (2-55) had been disallowed by the taxing officer when in fact they had not been disallowed.

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magneria di vi

Mr. Owori submitted that when dealing with item 1 the taxing officer took into consideration the fact that part of that item had been particularised under items 2-55. In his view, items 2-55 were recoverable under schedule 6 to the Advocates Renumeration Rules. He further submitted that the amount appearing in items 2-55 had in fact been conceded to by the late Elue, who had represented the appellant at the time of taxation. He therefore felt that those figures should not be disturbed at all.

Items 2-55 which are the subject of this ground of appeal, deal mainly with perusal and drawing of documents connected with the petition. It is our view that the amount involved was well covered under item 1, this being perusal and drawing of certain documents necessary for presenting the case for trial. When dealing with a similar point in Patrick Makumbi v Sole Electrics (supra) Manyindo, DCJ. had this to say:

"The principles governing taxation of costs by a Taxing Master are well settled. First, the instruction fee should cover the advocate's work, including taking instructions as well as other work necessary for presenting the case for trial or appeal, as the case may be."

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We accept this as a corueet proposition oithe iaw. The apijeliaie judge and the taxing officer seem to have been aware of this principle but departed fi'om it for reasons we rrave been u.able to discover. we agree with Mr. Bamwite's contention that the judge was wrong in saying that the taxing officer had disallo."ved items 2-55 wl:en in fact he had not. This is what the judge said:

"From the record and 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 pan of the instruction fee." iLO

> These items were not disallowed by the taxing master as may be seen in his ruling where he said:

> > "Items 2-62 are allowed as they are within the provisions of the regulations.,,

This passage is at variance with what the judge stated in the above quotation. The award of costs under items 2.s5 was wrong as these items i(, were taken care ofunder item r. The Judge had conectly appreciated this fact as indicated above. we think that his failure to adhere to what he said was unintentional..

> Regarding Mr. owori's contention that the amount contained in the items complained of was conceded to by the appellant,s former counsel, our answer is this: a party should not be bound by an illegal or iregular behaviour of his counser. It may arso be stated that once an i,egality or inegulariry has been brought to the notice of rhe court it is imperative that

tfie sourt should not sancrion or condone it (see Makula Intemational Ltd. <sup>v</sup>Cardinal Nsubuea and Another Il9g2i HCB l. The concession by late Elue was illegal and it was likely to resurt in miscarriage ofjustice. It is unforrunate that the judge did not make any finding on this point although it was raised by the appellant's counsel.

Ir is our firm view that the second ground of appeal was validly raised, it is accordingly upheld and the amount awarded in items 2-55 must be deducted from the costs.

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As regards ro the third ground of this appeal, Ml. Bamwite argued that the -iudge was wrong to proceed to deduct 450,000/= which he found was improperly awarded. In his view the judge should have sent the bill to the taxing officer to carry out the deduction. We do not agree. Section 6r of the Advocates Act under which this appeal was lodged says that the appellate judge may carry out the taxation or may send the bill to the taxing officer. In the case of p. Raichand Ltd. <sup>v</sup> ila Serv ices of East Africa Ltd. supra) which was quoted by Mr. Bamwite himself the appellate court carried out the deductions. In our view thejudge was quite in order to have carried out the deduction of 450,000/= himserf. The third ground rnusr fail.

Finally we must turn to the fourth and last ground. Ivlr. Bamwite submitted thar the learned apperate judge did not subject the record of the lower coun to proper scrutiny ancr thar the fairure resurred in his comine to a wrong conclusion which red to miscarriage ofjLrstice, Hc pointed our that had the judge considered the reco'd carclriry.e rvourd'ot have rreicr that the taxing master had disalrorved iterns 2-55 when in fact that was not the case. On the other hand, Mr. Owor contenJed thar rhe judge had

a correct conclusion. exhlustlvely considered the resord 0f the couit below an<i he irad come to

We have already held elsewhere in this judgment that the judge was wrong to speak of the taxing officer as having disallowed items 2-55 when in fact he had not done so. We agree with Mr. Bamrvite that the judge did not properly exercise his powers as a first appellate court to subject the record of the lorver court lo a llesh scrutirrl'. I-lacl he done so, he would not have come to that misleading conclusion. This ground ol appeal must succeed.

In the result we allow the appeal with costs of this appeal to the appetlant. The judgment of the High Court dated I ll2l99 is hereby set aside and in its place we substitute the following orders:

- (a) Amount in item 1 is reduced as follcws: The sum of 10,000,000/= for leading counsel is reduced to 7,000,000/=. The sum of 4,000,000/= for junior counsel is reduced to 2,500,000/=. - (b) All the amount of 3,150,000/: awarded by Lower court in items 2-55 is disallowed. - (c) The costs are reduced to I3,642,000/- (21,292,000 - 7,650,000/- = 13,6a2,0001=) which is accordingly awarded to the respondent.

It is so ordered.

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## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA

#### CORAM: HON. MR. JUSTICE S. T. MANYINDO, DCJ.; HON. MR. JUSTICE J. P. BERKO, J. A.; HON. MR. JUSTICE S. G. ENGWAU, J. A.

### CIVIL APPEAL NO. 2 OF 1999

#### **BETWEEN**

EGYPT AIR CORPORATION **APPELLANT** t/a EGYPT AIR-UGANDA

#### AND

SUFISH INTERNATIONAL $\mathbf{1}$ FOOD PROCESSORS (U) LTD. } .................................... PANWORLD INSURANCE CO. LTD.} $\overline{2}$ .

### JUDGMENT OF ENGWAU, J. A.

I had the benefit of reading the judgment of Berko, J. A. in draft and I entirely agree with it.

In the result, I would allow the appeal along the terms proposed by him

Dated at Kampala this $\frac{2}{2}$ day of $\frac{1}{2}$ 1999

S. G. ENGWALL JUSTICE OF APPEAL.

Dated at Kampala this Lotted at Kampala this Lotted at Kampala this Lotted at May of July 1999.

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C. M. KATO JUSTICE OF APPEAL

$\mathcal{N}$ うい G. M. OKELLO JUSTICE OF APPEAL

A. E. MPAGI-BAHIGEINE JUSTICE OF APPEAL