Attorney General v Akello & 8 Others (Miscellaneous Application 38 of 2024) [2025] UGHC 10 (17 January 2025)

# 5 **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT LIRA**

## **MISCELLANEOUS APPLICATION NO. 38 OF 2024**

## **(ARISING FROM CIVIL SUIT NO. 006 OF 2011)**

**ATTORNEY GENERAL………………..……………………………. APPLICANT**

# **VERSUS**

- **1. AKELLO BETTY** - **2. ONGIA JOHN FRANCIS** - 20 **3. EGOLE LAWRENCE EMMY** - **4. OGANG PETER** - **5. OKELLO AWANY JULIUS PETER** - **6. NYANGA JOLLY GEORGE** - **7. ATIM VICKY** - 25 **8. AKELLO SCOVIA ABED** - **9. GRACE AKULLO LIRA & OTHERS …………………RESPONDENTS**

### **BEFORE: HON. MR. JUSTICE GEORGE OKELLO**

# **RULING**

## **Introduction**

35 This is a taxation appeal by the Attorney General (AG) against the decision of His Worship Ssalaamu Godfrey Ngobi, the Assistant Registrar High Court. As the taxing officer, His Worship re-taxed the bill of costs in Civil Suit No. 006 of 2011. The learned Assistant Registrar considered the item of instruction fee only. The re-taxation followed the decision of this court

40 (Gaswaga, J.) in taxation appeal No. 47 of 2021 in which the decision of a


5 taxing officer was impugned. The taxing officer's name is not indicated in his ruling, a practice which is quite deplorable and unfortunate as it defeats judicial transparency and accountability.

In the appeal, Gaswaga J directed that relevant /suitable instruction fee

10 be assessed/ determined, basing on, among other things, the number of people, claimants/ plaintiffs who were represented in the head suit.

The background facts giving rise to the suit from which the taxation sprung, are stated below.

Akello Betty (the 1st Applicant) and Obua Sam (no longer a party) lodged civil suit No. 006 of 2011 against the AG. It followed a representative order under O.1 rule 8 CPR allowing them to sue in their own right and on behalf of 580 individuals. The names of those individuals are contained in 20 annexure A to the plaint. Before the trial commenced, Obua withdrew from the suit. The trial Judge Byabakama Mugenyi J (as he then was) struck out the name of Obua from the plaint.

In legal parlance, Akello remained the sole plaintiff representing her 25 interests and that of the 580 individuals. In the suit, she sought to recover compensation for self and the named individuals. They claimed to have lost cattle, goats, other livestock, and property during the insurgency in

- 5 Lango Sub-Region in 1986-2006. The insurgency started with the Holy Spirit Movement of Alice Lakwena, followed by the Lord's Resistance Army war of Joseph Kony, both interlaced with the criminal acts of cattle rustlers from some members of a neighboring community. The plaintiff thus alleged that the Government failed in its constitutional duty to protect people and - 10 property and that lives were also lost. She claimed that government soldiers took livestock and refused to return to their owners. The plaintiff anchored the suit in detinue and breach of constitutional duty.

After hearing four witnesses for the plaintiff and one for the AG, court 15 found for the plaintiff and her colleagues. Before I set out the decree and orders of court, I wish to note some pertinent occurrences.

At the start of the trial, through their respective counsel, parties entered into a consent on 19 August, 2011. They agreed that joint physical 20 verification of the "plaintiffs" and property lost, be conducted. On that understanding, court ordered that a Committee of Government Officials and the 'plaintiffs' representatives conduct physical verification to enable court and the parties determine whether an out of court settlement could be arrived at. Mr. Andrew Oluka (RIP) who appeared for the AG had earlier 25 addressed court that a similar suit had been settled by Government so there was a need to avoid multiple actions against Government over the

same subject-matter. I note that in spite of this assurance, nothing was

- 5 done by Mr. Alex Bashasha, learned counsel for the plaintiff and her colleagues, to take further steps to bring other beneficiaries who were not part of the 580, within the representative suit. There is ample guidance on this from decided cases. See: Tarlogan Singh Vs. Jaspal Phaguda & others (1997- 2001) UCLR 408 at 410 ( Ntabgoba, PJ); Henry Kamoga & 5 others - 10 Vs. Bank of Uganda, HCCS No. 62 of 2009 ( Musota J, as he then was); Ibrahim Buwembo & 2 others on behalf of 800 others Vs. UTODA Ltd (Kiryabwire J, as he then was); Hon. Justice Prof. Dr. G. W Kanyeihamba Vs. Amos Nzeyi & 3 ors, HCCS No. 361 of 2010; Kasozi Joseph & 50,003 others Vs. UMEME (U) Ltd, HCCS No. 188 of 2010.

That apart, I note that PW4 (Barigayomwe Raymond) testified and tendered three volumes of Books in evidence which court collectively marked PE1. PW4 termed the books "the records of the "plaintiffs". He was categorical that PE1 contains the names of individuals who were claiming loss of 20 property. PW4 stated that those "claimants" are the very persons in the

suit.

It appears learned counsel for the plaintiff thought PE1 sufficed for the purposes of bringing other claimants on board the suit. That said, 25 regarding how he came up with PE1, PW4 stated that he worked with LC1, LCII and LCIII officials within Lango sub-region who verified that the 'claimants' lost property. It is, however, not clear to this court whether

5 these LCs were "the Committee of Government Officials" intended by the parties.

Regarding the verification method, PW4 testified that he distributed questionnaires which the "claimants" filled. He then transferred

10 information from the questionnaires into the books (PE1). The witness stated that he collected the data in 2010 but compiled it in 2011. This court notes that the year 2010 predates the consent date. PW4 conceded that when collecting the data he and the team did not liaise with any Government Official.

The above observations aside, it appears the parties had no problem with PE1. Court proceeded to render its judgment on 02 May 2014. Court chiefly relied on PE1 to make its orders. It ordered as follows;

- 20 i. The plaintiffs are entitled to compensation for the verified livestock as contained in PE1; - ii. The plaintiffs are entitled to compensation for each category of livestock at the following rates - (a) shs. 900,000 per head of cattle; - 25 (b) shs. 150,000 per goat; - (c) shs 160,000 per sheep; and - (d) shs. 250,000 per pig.


- 5 iii. Each plaintiff is awarded shs. 4,000,000 in general damages - iv. Each plaintiff is awarded shs. 1,000,000 in exemplary damages. - v. Each plaintiff is awarded 25% interest per annum on the decretal sum from the date of filing the suit (24/02/2011) till full payment - vi. The plaintiffs are awarded costs. - 10

No appeal was preferred against the Judgment. A decree was subsequently extracted and endorsed. The decree does not, however, aggregate the court awards. And to-date, no amount has been computed by both counsel and their clients. By its nature, this court thinks the awards require that both

15 sides sit, compute, and come up with a harmonized amount before any payment is made.

After the judgment, the case file went into limbo for some time. It was not until 18 December, 2015 when the 2nd to 9th respondents lodged Misc. 20 Application No. 065 of 2015. That application arose from the concluded suit. As noted, the names of the 2nd to 9th respondents do not appear among the 580 individuals/beneficiaries. In their application, the 2nd to 9th respondents sought to be added as plaintiffs (to the decree). They claimed they were entitled to benefit from the decree and thus needed to 25 protect their interests. They also alleged that their interests were not being protected by the plaintiff (Akello Betty). This court notes that the plaintiff was not a party to that application. The AG consented to the application


- on 18 December, 2015. They agreed that the 2nd to 9th 5 respondents be added as "plaintiffs" to civil suit No. 006 of 2011 and that each party bears its own costs of the application. Court (Dr. Nabisinde, J.) endorsed the consent. - On being added "plaintiffs" to the concluded suit, the 2nd 10 to 9th respondents launched Misc. Application No.099 of 2019 against the AG. They sought for an order of mandamus against the Permanent Secretary/ Secretary to the Treasury, Ministry of Finance (PS/ST). On 17 November, 2020, this Court (Ajiji, J.) allowed the application. Court issued mandamus - 15 and a certificate of order directing the PS/ST to immediately pay the decretal amounts under the decree. Payment was to be made to the individual claimants upon M/s Bashasha & Co. Advocates presenting list of the plaintiffs entitled to payment as per the decree of court. It was also ordered that taxed costs of the head suit be paid directly to M/s Bashasha - 20 & Co. Advocates. The AG would pay costs of the Application. In the application before Ajiji J, Akello Betty appears as the 9th Applicant. I note that as at the date of the court ruling, Akello Betty had written 05 years earlier (12 December, 2015) to M/s Bashasha & Co. Advocates claiming she (and apparently the 580 beneficiaries) had withdrawn instructions - 25 from the firm. Almost nine years later, by letter dated 23 February, 2024, Akello Betty asserted that she had instructed M/s Odoo & Co. Advocates. The new firm communicated to the Assistant Registrar of court by letters

- 5 dated 26 March, 2024, 12 April, 2024, and 30 April, 2024 that they had received instruction in the matter. On 09 April, 2024, M/s Bashasha & Co. Advocates denied that the plaintiff/claimants (Akello Betty and colleagues) had given instructions to Odoo & Co. Advocates. They asserted that the persons purporting to have instructed Odoo & Co. Advocates are - 10 not parties or beneficiaries to the head suit and could not purport to instruct a new firm. The Advocates doubted the identity of Akello Betty, saying, she is not the Akello Betty who gave instructions to Bashasha & Co. Advocates to file the representative suit. This court has taken note of other correspondences on record. What is significant from the exchanges - 15 is that M/s Bashasha and Co. Advocates claim they represent thousands of beneficiaries. They further assert that neither their firm nor any other has mandate to handle or receive payments on behalf of the "plaintiffs".

### **The impugned bill of costs**

- 20 The bill of costs in civil suit No. 006 of 2011 was lodged by M/s Bashasha & Co. Advocates on 16 March, 2016 after the 2nd to 9th respondents were added as "plaintiffs". Their names do not, however, appear on the bill. The parties to the bill are Akello Betty Vs. Attorney General. By lodging the bill of costs, it appears M/s Bashasha & Co. Advocates ignored Akello's letter - 25 of 12 December, 2015 wherein she purported to withdraw instructions. Interestingly, Akello Betty has not disowned the outcome of the taxation and appears to fully support it. I take it that she has ratified whatever

5 Bashasha & Co. Advocates did in taxing the bill. I note that Odoo & Co. Advocates did not tax the bill in spite of the alleged instruction to the firm.

Item 1 of the bill is instruction fee. As I see it, it is the contentious item in the present appeal. The particulars are stated:

*"to instruction fee to recover compensation for 56,081 plaintiffs who lost their property in the northern Uganda insurgency a matter which was complex, of great public importance involving verification and recovery of the plaintiffs' livestock to wit 1,193, 739 cattle, 743,173 goats, 358,137*

15 *sheep, and 96,638 pigs and whose subject matter was in the region of 1,500,000,000,000 (1.5 Trillion)"* (Emphasis is mine.)

Shs. 150,000,000,000 (One Hundred Fifty Billion) was claimed as instruction fee. The taxing officer who taxed the bill then, allowed shs. 20 45,000,000,000 (Forty Five Billion). The officer noted that the amount was 3% of what was claimed.

I have noted that, aside from the instruction fee, other key items of the bill are worth highlighting to give a fair picture of the bill and costs allowed at 25 taxation.

- 5 Item 2 was drawing plaint of 1000 folios for which Shs. 27,500,000 was claimed. The then taxing officer allowed shs. 2,490,000. For making 3 copies of the plaint, shs. 247,500,000 was claimed of which **shs. 22,500,000** was allowed. - 10 Item 28 is attendance of advocates to conduct verification of "over 50,000 claimants in eight districts in the months of February, March and April, 2012". As I have noted, PW4 testified that he conducted verification in 2010 and came up with a compilation report in 2011. I, therefore, see a sharp contradiction between the facts stated in the bill and what PW4 said - 15 on oath. That apart, Shs. 180,000,000 was claimed of which **shs**. **24,000,000** was allowed by the then taxing officer.

Item 70 is attendance by advocates to conduct validation of over 50,000 claimants in 8 districts from January to April, 2016. Again, as noted, this 20 claim was contrary to the period stated by PW4. The taxing officer, nevertheless allowed **shs. 24,000,000**.

The total Bill, excluding disbursement, was **shs. 150,667,187,066.** VAT was **shs. 27,000,000,000**. It is not clear on what figure VAT was claimed. 25 In this court's view, VAT ought to be based on instruction fee and not the total bill.

5 On disbursements, item 88 of the bill provided:

*"Logistics and facilitation to advocates, other staff, local authorities/ leaders to conduct verification in item 28 above, from Feb- April 2012"*. Shs. 800,000,000 (Eight Hundred Million) was claimed. The then taxing officer allowed **shs. 50,000,000**. This claim could pass for 10 an unusual expense which regulation 13 of the Advocates (Remuneration

and Taxation of Costs) Regulations (as amended) by S. I 7/ 2018, frowns upon.

Item 107 (b) is similar to item 88 the only difference being that item 107 15 (b) covers the period January- April, 2016. Out of the claim of shs. 800,000,000, the then taxing officer allowed **shs. 50,000,000**. My comments regarding item 88, applies to item 107 (b).

In the final award, out of the aggregate costs claim of **shs.** 20 **179,279,727,066** which included disbursements and VAT, the first taxing officer allowed **shs. 53,236,176,000**. Of these, the VAT component was shs. 8,100,000,000, and shs. 45,000,000,000 was instruction fee while shs.136, 176,000 catered for other items. The then taxing officer signed the certificate of taxation on 12 April, 2016 but no name appears.

5 It is the above decision which gave rise to the taxation Appeal which Gaswaga, J adjudicated. For ease of reference and without being technical, I shall refer to that appeal as the first taxation appeal.

## **The first taxation appeal**

- 10 The appeal bore the heading "*Attorney General Vs. Ongia John Francis & 8 others, Misc. Application No. 47 of 2021"*. I note that the name of the parties were drawn by the AG quite contrary to the bill of costs as lodged for Akello Betty against the Attorney General. It is not clear why the AG decided to displace Akello Betty from the first position and now decided to rank her - 15 in the 9th place. I will make further comments on this.

In his appeal, the AG complained that the taxation of the whole bill was conducted in error of law and fact and amounted to a manifestly high award and wrongful exercise of judicial discretion. He prayed that the 20 order and certificate of taxation awarding **shs. 53, 236,176,000** be set aside with costs, and that an appropriate award be made.

Gaswaga J. summarized the grounds of the Application/ taxation appeal. In my rendition, because some objections have been raised, I proceed to 25 summarize the grounds as canvassed before my brother Judge. They were; the taxing master erred in law and principle in awarding Ugx 53,236, 176,000 in favour of the respondents/ plaintiffs; the taxing master applied


5 wrong principles of law while taxing the bill of costs as the respondents could not purport to be appointed representative of 56,081 persons without the appropriate representative order; there were fundamental irregularities in the taxation of the bill; and it is in the interest of justice and equity that the award be vacated / set aside.

In his opinion, Gaswaga J., noted that the representative order was never set aside. Court expressed itself:

"*The record indicates a list of 580 represented persons 'which seems to* 15 *corroborate the respondents' assertion that some of the parties applied and were added as named parties on the case. It is further reflected on court record that one of the first representative Obua Sam withdrew from this case…moreover, there was an order for verification and such verification of the respondents' claims was done with the applicant and the local leaders*

- 20 *fully participating. It then leaves court wondering why the applicant insists that the number of those in whose interest the award of court was made is unknown to it. This court cannot, therefore, decide on the propriety of the representative order since the same was never challenged all the way to the end of the trial process…. this court is therefore unable to make a ruling as* - 25 *to the propriety of the representative order at this stage where the matter to be dealt with is a taxation appeal. This should have been raised at trial through a preliminary objection or better still, the applicant can file an*

5 *appeal…the trial Judge was precise on who and for whose benefit the different awards were made, thus the value that was attached to the various items in PE1 as ascertained by the verification team. The document "PE1" was concluded upon after a verification exercise ordered by court, which exercise was fully attended by both parties."*

Court noted that the then taxing officer followed precedents and allowed instruction fee at 3% of shs. 1,547,707,370,000 and, therefore, had exercised its discretion judiciously. Court also noted that the taxation process was duly followed; most of the amounts claimed by the 1st 15 respondent in the bill of costs were reduced; the AG's official was in attendance during the taxation, and did not object to it; and that the applicant does not show which particular item he objects to.

Court continued to note that apart from stating that the instruction fee 20 awarded is exorbitant, and the number of claimants was unascertained, the Applicant did not clearly show on what particular items the taxing master neglected, ignored or failed to follow the required taxation principles. Court stated:

25 *"…save for the instruction fee which the court is unable to determine at this point in time, I find it hard to agree with the Applicant that the sums awarded herein are exorbitant. Reverting to the aspect of the instruction fee*

5 *awarded, whether they are exorbitant or extremely low, one can only make a finding or calculation basing on certain material which unfortunately seems to be unavailable before the court at this moment"*

Court continued:

*"A through reading of the record reveals some gaps on exactly how many people/ respondents/ claimants were represented by counsel yet this should be one of the yardsticks for the taxing master to measure and determine how much work counsel has done and how much to pay for that*

- 15 *work… the representative order of 03/02/ 2011 was given to two people/ plaintiffs to represent the initial group of 580 people as per the attached list on the plaint. One Sam Obua withdrew from the case on 22/03/2012. It is also beyond the region of contention that some people were later allowed to join the suit in their own names… the plaintiffs whom counsel represented* - 20 *in this case were claimants of livestock… the applicant disputes the respondents' case that 56,081 people/ plaintiffs were represented by counsel in this matter.."*

In dealing with the Applicant's prayer that the order and certificate of 25 taxation of costs of sh*s.* 53,236,176,000 be set aside, court said*:*

- 5 *"But as already indicated and discussed herein above, the Attorney General disputes the number of 56,081 claimants or plaintiffs claimed to have been represented by counsel for the respondents (claimants) yet this is one of the key factors for a court to consider while calculating and determining the amount of work done and the corresponding amounts to be awarded. A* - 10 *thorough search on the entire record of this case has been done but the verification report, exhibit PE1, has not been found. Consequently, without exhibit PE1, court is unable to set aside or to maintain the impugned award by the taxing master and let alone make another award."* - 15 Court invoked section 62 (2) of the Advocates Act Cap 267 ( now section 68 (2) of Cap. 295) and referred the matter back to the taxing officer/ registrar for the purposes of calculating and determining the relevant and or suitable instruction fee basing on, among other things, the number of people/ claimants/ plaintiffs represented by counsel*.* Court made no order 20 as to costs of the appeal.

## **Decision of the taxing officer on reference**

In its ruling of 07 March, 2024, His Worship Salaamu Godfrey Ngobi (who replaced the first officer) reproduced excerpts from the decision of Justice

25 Gaswaga J. His Worship was of the view that court had not set aside the taxation award but only referred it back for purposes of recalculating and determining relevant and or suitable instruction fee. He noted that the

- 5 reference was because the court could not access PE1 on record. The taxing officer concluded that he found no need to invite the parties to address court on the assigned duty which was specific. He reasoned that the parties had had the opportunity of addressing the learned Judge on the issue of costs and their submissions were on record which the taxing - 10 officer had taken note of. After quoting several precedents on taxation of costs, the taxing officer rendered himself:

*"I have managed to access the booklets which comprise Exhibit PE1 on court record, these are two booklets in number and upon perusal, I have been* 15 *able to confirm the total figures to be 44,937 claimants; 1,002,112*

*cattle; 655,354 goats, 341,137 sheep; 80,065 pigs; and 977,128 chicken."*

The taxing officer took cognizance of the awards by Byabakama, J. and 20 proceeded:

*"Upon applying these different figures of awards of court to the figures confirmed in Exhibit PE1 …, the total award of court amounts to shs. 1,523,752,820,000 (One Trillion Five Hundred Twenty Three Billion Seven*

25 *Hundred Fifty Two Million Eight Hundred Twenty Thousand Shillings). This is without factoring the interest awarded on the compensation at the rate of 25% per annum from the date of filing the suit till settlement in full…it is*


- 5 *evident from the above findings that the suit no doubt involved an issue of wrestling colossal amount of money in form of compensation from the defendant and this means the amount of work involved was enormous as far as preparation for such a hearing was concerned. From the record, the (then) taxing officer awarded instruction fee on the premise of the decretal* - 10 *sum in the region of shs. 1,500,000,000,000 which I find in tandem with my findings upon perusal of the PE1 and even less than the actual decretal sum. The awarded instruction fees of shs. 45,000,000,000 translated to 3% of the decretal sum relied on by court. I am aware that courts have found an award of instruction fee equivalent to 8 to 10% of the subject matter/ monetary*

15 *value proper and reasonable…"*

After deferring to authorities, the taxing officer continued:

*"Bearing in mind the above, in this court's opinion, an instruction fee of shs.* 20 *45,000,000,000 which translates to 3% of the decretal sum relied on by court is adequate and reasonable for handling the suit. I accordingly confirm the bill of costs as previously taxed by the taxing master to the tune of shs. 53,236, 176,000 (Fifty Three Billion Two Hundred Thirty Six Million One Hundred Seventy Six Thousand Shillings Only). I so order."*

 ### 5 **The instant appeal**

The AG lodged the taxation appeal on 22 March, 2024. The heading is couched "**Attorney General Vs. Ongia John Francis**" I think because of the heading in the former process by which the earlier taxation appeal was commenced. In the instant ruling, this court decided to indicate the full

- 10 names of the respondents but starting with Akello Betty. This is because, as noted, the bill of costs was lodged and taxed in her name as the sole plaintiff versus the Attorney General. As is now clear, Ongia John Francis and his 7 colleagues were only added to the decree. It would thus be misleading for Ongia John Francis to continue appearing as the lead - 15 respondent/plaintiff as if he took out any representative order and filed the suit whereas not. Court decided to take the action in the exercise of powers under section 98 of the CPA to avoid the abuse of the court process. This court could not countenance an illegality. In **Attorney General & Uganda Land Commission Vs. James Mark Kamoga and James** 20 **Kamala, Civil Appeal No. 8 of 2004**, Mulenga JSC explained that abuse of court process involves the use of the process for an improper purpose or a purpose for which the process was not established. In **Makula International Ltd Vs. His Emminence Cardinal Nsubuga & Another, Civil Appeal No. 4 of 1981 [1982] UG SC 2**, the then apex court held that 25 a court of law cannot sanction that which is illegal and an illegality once

brought to the attention of court overrides all questions of pleadings

5 including any admission made thereon. A court of law can also take note of an illegality even if the parties never raised it.

In the instant appeal a declaration is sought that the taxation of the whole bill was conducted in error of law and fact and the award is manifestly

10 high and amount to wrongful exercise of discretion. The AG prays that the aggregate costs of shs. 53,236,176,000 be set aside and an appropriate award be made. He also prays for costs of the taxation appeal.

The grounds of the appeal are contained in the chamber summons but can 15 be summarized as follows;

The taxing officer erred in law and fact when he improperly exercised judicial discretion and determined the instruction fee of shs. 45,000,000,000 without giving the parties an opportunity to appear before

20 him and present their case; the taxing officer erred in law and fact when he relied on PE1, a verification report and not the representative order, to ascertain the number of plaintiffs and the instruction fee due to the respondents; the taxing master erred in law and principle in awarding a manifestly high instruction fee of shs. 45,000,000,000 to the respondents 25 contrary to the Advocates (Remuneration and Taxation of Costs)

Regulations, S. I 7/2018.

- 5 Mr. Wanyama Kodoli, Ag. Commissioner Civil Litigation swore an affidavit in support of the application. He restates the factual conduct of the proceedings up to the point of the impugned reconsideration of the aspect of the instruction fee. He complains that the parties were not invited to attend the taxation hearing. He also laments that the taxing officer - 10 confirmed the very amount of instruction fee given by the first officer. Mr. Wanyama asserts that in order to determine the number of plaintiffs for the purposes of assessing instruction fee, the taxing officer ought to have used the representative order as a guide, and not the verification report (PE1). He claims that Justice Gaswaga agreed with the Applicant in the - 15 taxation appeal No. 46 of 2021 and set aside the entire award of shs. 53,236,176,000. Mr. Wanyama thus contends that there are fundamental illegalities and procedural improprieties in the proceedings and ruling of the taxing officer. - 20 In their response through Ms. Martha Kamugisha Busingye, an advocate in the firm of Bashasha & Co. Advocates, the respondents deny the allegations. The advocate deposed that the firm represented the respondents in HCCS No. 006 of 2011 at Lira High Court and all subsequent Applications arising thereunder. Pausing for the moment, I 25 think the aspect of the deposition I have underlined is not accurate in so far as the 2nd to 9th respondents are concerned. As I have stated, the 2nd to 9th respondents were not plaintiffs when the civil suit was filed and

5 conclusively adjudicated. They were only added by consent after the decree of court was issued.

Ms. Kamugisha asserts that the taxation appeal is incompetent, untenable and lacks legal basis. She indicates some points of law that would be

- 10 raised. They are; the taxation appeal offends the res judicata doctrine; the appeal is barred by estoppel as it seeks to challenge PE1 which was admitted by consent of the parties, and raises issues which were already heard and determined by court; the appeal amounts to an abuse of the court process as the applicant seeks to litigate over matters already 15 adjudicated by court; this court lacks jurisdiction since it handled and - disposed of the matter.

Regarding the claim that this court set aside the award of shs. 53,236,176,000, Ms. Kamugisha deposed that court only ordered for

- 20 recalculation of instruction fee and not the entire bill. Regarding the contention that a fair hearing was denied, Ms. Kamugisha asserted that the taxing officer considered submission on record. She claimed that it was not necessary for the parties to appear for taxation hearing since the taxing officer had all the material on which to proceed, being PE1, and the parties' - 25 earlier arguments. Ms. Kamugisha also asserts that PE1 contains a detailed list of all the plaintiffs in HCCS No. 006 of 2011. She contends that the creation of PE1 and its admission in evidence was consented to

- 5 by the AG. She maintains that the award of shs. 45,000,000,000 in instruction fee is reasonable and should be upheld. Ms. Kamugisha denies any illegalities or procedural improprieties. Without prejudice, she deposes that Byabakama J ordered for payment of compensation to 56,081 claimants following the verification vide PE1. She continues that the - 10 respondents/ claimants have not been paid to-date despite the order of Ajiji, J. She asserts that the taxing officer acted in accordance with the specific directive of the Judge. She claims the applicant has continuously filed matters in this court to frustrate payment of court awards. Ms. Kamugisha concludes that the applicant continues to abuse the court

15 process. She thus prays for dismissal of the taxation appeal with costs.

## **Legal representation and conduct of the proceedings**

Both counsel filed written submissions well before the hearing. For the applicant, it was lodged on 22 March 2024 while the respondents filed on

- 20 8th May, 2024. Rejoinder by the applicant was filed on 23rd May, 2024. The application was fixed for a hearing for 22nd May, 2024. The record shows, however, that the matter came up on 23rd May, 2024 (the very day the rejoinder was filed). Parties appeared before the current Deputy Registrar, His Worship Godfrey Kawesa. The trial Judge (Gaswaga J) was indisposed - 25 on official duties outside the Circuit. Musota Brian, a State Attorney, appeared for the Applicant while Mr. Desmond Tutu Otwal, a legal representative from Adupa and Co. Advocates was present although it is

- 5 not indicated for whom he appeared. The learned State Attorney informed the Deputy Registrar that submissions had been filed and that he would serve a rejoinder submission. The record does not show that Mr. Otwal addressed the learned Deputy Registrar. The hearing was adjourned for 26th June 2024. On that day, Ms. Doris Twesigomwe, a State Attorney, - 10 appeared on brief for Mr. George Kalemera, while Mr. Idambi Paul appeared for the respondents. Mr. Odoo Simon Peter appeared and addressed court that he was representing the "original lead plaintiff- Akello Betty". All counsel appeared before a Magistrate Grade One who adjourned the hearing because court was indisposed. The matter was given 7th - 15 October 2024. Following my assignment to care-take Lira High Court Circuit, the application was re-fixed before me and came up on 19th September, 2024. Mr. Tuhangane Wilbroad a State Attorney held Mr. Musota's brief, while Mr. Idambi Paul held brief for Ms. Grace Atuhaire for the respondents. Mr. Odoo Simon Peter appeared for the 1st respondent - 20 (Akello Betty) and the claimants who appear in the representative order. Mr. Tuhangane and Mr. Idambi confirmed that the submissions are on record and prayed to adopt it. Court allowed them to adopt. Mr. Odoo informed court that his clients are interested in the matter. He told court that his clients (Akello Betty and others she represents) had lodged Misc. - 25 Application No.105 of 2024 seeking review of the consent order by which the 2nd to 9th respondents were added to the head suit. He prayed for a date. This court noted that the application mentioned by Mr. Odoo was not

5 before it. Mr. Odoo did not address court on the merit or otherwise of the instant taxation appeal. This court thus takes it that the address by the advocate from M/s Bashasha & Co. Advocates serves the interests of Akello Betty although she claims she had withdrawn instructions from the firm way back in 2015. This court undertook to deliver this ruling on

10 notice.

## **Issues for resolution**

I have read the submissions and the authorities supplied by both sides. I thank learned counsel for their assistance. The issues that arise from the 15 application, in their order of importance, are;

- 1. Whether this court lacks jurisdiction to entertain the taxation appeal and/ or is functus officio? - 2. Whether the taxation appeal is barred by res judicata? - 3. Whether the taxation appeal is barred by estoppel? - 20 4. Whether the taxation appeal constitute an abuse of court process? - 5. Whether the learned taxing officer erred in law and fact and improperly exercised judicial discretion in awarding the instruction fee of shs. 45,000,000,000 without affording the parties an opportunity to be heard? - 25 6. Whether the learned taxing officer erred in law and fact when he relied on PE1 (a verification report) and not the representative order

- 5 to ascertain the number of plaintiffs and award the instruction fee to the respondents? - 7. Whether the award of instruction fee of shs. 45,000,000,000 is manifestly excessive and constitute an error in principle? - 8. What remedies are available to the parties?

# **Court analysis and resolution**

For brevity, I shall give summary opinion on each issue. I am fortified by the guidance in **Bogere Moses & Kamba Robert Vs. Uganda, Criminal Appeal No. 1 of 1997**, where the Supreme Court stated that while it would 15 not attempt to prescribe any format in which a judgment of court should be written, where a material issue of objection is raised on appeal, the appellant is entitled to receive an adjudication on such issue from the appellate court in its judgment even if the adjudication be handed out in summary form.

In this appeal, both sides have raised material points for consideration. Whereas the applicant raises many complaints regarding the conduct and the propriety of the taxing officer's decision, the respondent contests the competence of the appeal on several fronts.


## 5 **Issue 1. Jurisdiction of court/ the functus officio doctrine.**

The objections rest on the view that since Gaswaga J., entertained a similar matter, this court cannot sit to hear another taxation appeal from the ruling and award of the taxing officer.

- 10 Jurisdiction is the power of court to hear and entertain an action or proceedings. It is the extent of the authority of court to administer justice not only with reference to the subject matter of the suit but also the local or pecuniary limits of its jurisdiction. See*:* **Mukasa Vs. Muwanga, HCMA No. 31 of 1994.** Jurisdiction must be prescribed by law. Proceedings of a - 15 court without jurisdiction is a nullity as no court can confer jurisdiction upon itself. Lack of jurisdiction goes far beyond any "error, omission, or irregularity" nor can it be regarded as a mere technicality. See: **Desai Vs. Warsama (1967) EA 351; Athanasius Kivumbi Lule Vs. Hon. Emmanuel Pinto, Const. Pet. No. 05 of 1997**; **Mubiru & others Vs. Kayiwa (1979)** 20 **HCB 212.**

In the instant matter, section 68 (1) of the Advocates Act Cap 295 gives a person affected by an order or decision of a taxing officer made under part VII of the Act a right to appeal to a Judge of the High Court who may make 25 any order that the taxing officer might have made. The section is couched:

 - 5 **"A person affected by an order or decision of a taxing officer made under this Part or any regulations made under this Part may appeal within thirty days to a judge of the High Court who on that appeal may make any order that the taxing officer might have made."** - 10 By lodging the instant appeal, the applicant is taken to have invoked the above provision. He seeks to assail the decision of His Worship Ssalaamu Godfrey Ngobi. That decision has never been adjudicated by this court. What this court (Gaswaga J) adjudicated in the taxation appeal is what gave rise to the reference which His Worship Salaamu Godfrey Ngobi - 15 entertained. Section 68 (1) of the Advocates Act thus clothes this court with jurisdiction to hear the appeal. In the circumstances, I hold that this court has jurisdiction. Consequently, the objection to jurisdiction is dismissed. - 20 The functus officio argument has been raised on the premise that because Gaswaga J., adjudicated taxation appeal No. 47 of 2021, the powers of this court was exhausted. Learned counsel singled out one aspect of the appeal, that is, whether the taxation of the whole bill was conducted in error of fact, and is manifestly high, to argue that the very question was 25 canvassed and determined by court. It was contended that the applicant should have instead appealed the decision of this court if he was dissatisfied.

The applicant does not agree. He contends that this court is not functus officio.

To resolve the issue, I find it apposite to give the meaning of the term. 10 According to Black's Law Dictionary 9th Ed., page 743, functus officio means having performed his or her office, an officer or official body has no further authority or legal competence because the duties and functions of the original commission have been fully accomplished. In **Goodman Agencies Ltd Vs. Attorney General & Hass Agencies K (Ltd), Const.**

15 **Petition No. 03 of 2008**, the Constitutional Court of Uganda followed the persuasive decision from Botswana in **Magdeline Makinta Vs. Fostina Nkwe, Court of Appeal Civil Appeal No. 26/2002** (Akiwumi J. A,) quoting the South African case of **Odneste Monanyana Vs. the State, Criminal Appeal No. 8 of 2001** where it was held that:

*"The general principle now well established in South Africa as well as Botswana is that once a court has duly pronounced a final judgment or order it has itself no authority to correct, alter, or supplement it. The reason is that it becomes thereupon functus* 25 *officio, its jurisdiction in the case having been fully and finally*

*exercised, its authority over the subject matter has ceased."*

5 In **Major (Rtd.) Ronald Kakooza Mutale Vs. Balisigara Stephen, Consolidated Civil Application Nos. 121 and 277 of 2020**, the Court of Appeal (Elizabeth Musoke J. A, as she then was) with whom the other Justices were in agreement, cited with approval the Indian Supreme Court Case of **Sunita Jain Vs. Pawar Kumar Jain & others, Case No. 174 of** 10 **2008** where it was held:

*"…as a general rule as soon as judgment is pronounced or order is made by a court, it becomes functus officio (ceases to have control over the case) and has no power to review, over-ride, alter or interfere* 15 *with it."*

In the instant matter, whereas it is true that the applicant earlier raised a ground similar to that before me, I note that the instant appeal arises from the decision of His Worship Ngobi which has never been adjudicated on 20 appeal. This court is aware of its limits and cannot discuss the matters conclusively decided by it. I also note that, save for one ground, the rest of the grounds are neither identical nor similar to those canvassed and determined in the earlier appeal. As noted, all the grounds arise from the fresh decision following a re-taxation ordered by this court. The merit or 25 otherwise of the matters dealt with by His Worship Ngobi have never been adjudicated by a Judge of court. I do not, therefore, think this court by its earlier decision purported that the decision flowing from a re-taxation of

5 the bill, would be final. To suggest so would, in my opinion, run counter to the provision and spirit of section 68 (1) of the Advocates Act. In the circumstances, I hold that the doctrine of functus offiico is wrongly invoked.

## 10 **Issue 2: Whether the taxation appeal is barred by res judicata?**

Res judicata means a matter adjudicated upon or a matter upon which judgment has been pronounced. Section 7 of the Civil Procedure Act Cap 282 contains the rule of conclusiveness of judgment. It is based on the maxim of the Roman jurisprudence '*interest reipublicae ut sit finis litium*'

- 15 (it concerns the state that there be an end to law suits) and, partly on the maxim '*Nemo debet bis vexari pro una at eadem causa'* (no man should be vexed twice over for the same cause.) The rule is based on public policy which requires that there should be an end to litigation. See: **Mundrugo Richard Vs. Alum Santa & another, M. A 166 of 2023.** The question 20 whether the first decision is correct or erroneous has no bearing on the question whether it operates or does not operate as res judicata. The rationale of the foregoing is that every erroneous decision would be litigated again to get another opinion and there would be no finality: See: **Behari Vs. Majid (1901) I LR 24 All 138**. Once successful, the plea of res 25 judicata prohibits the court from entering into an inquiry at all as to a - matter already adjudicated upon. In other words, res judicata prohibits an inquiry in *limine.* Thus an issue of fact may be res judicata but this is not

5 so where in the subsequent suit altered circumstances are pleaded. See**: Mangharan Chuharmel Vs. BC Patel (1972) I LR Born 30**. It is thus the competency of the trial court which determined the 'former' 'suit' that must be looked to, and not that of the appellate court in which that suit was ultimately decided on appeal, or of executing court. See: **Toponidhee Vs.**

## 10 **Sreeputty (1880) I LR 5 Cal 832**; **Bharasi Vs. Sarat Chunder (1896) I LR 23 Cal 415**;

In **Dison Okumu & 7 others Vs. Uganda Electricity Transmission Company & 6 others, Civil Appeal No. 18 of 2020**, the Supreme Court 15 followed the well-trodden path in laying down the principles of res judicata. The Court held that for one to successfully rely on the defence of res judicata, it has to be proved that there exists a previous suit in which the matter was in issue; a competent court heard the matter in issue; the matter in issue was heard and finally decided in the former suit; the issue 20 has been raised once again in a new suit; the parties were the same or litigating under the same title.

The argument here is that because the AG sought by an earlier taxation appeal to challenge the entire bill, he cannot again raise similar 25 arguments. I am of the respectful opinion that the plea of res judicata is being wrongly invoked because the matters which this court determined arose from the taxation decision of the then taxing officer. The matters


5 before court now arise from the decision following a reconsideration of the instruction fee as directed by this court. The decision sought to be assailed cannot thus be said to have been finally settled by the earlier ruling given by this court in M. A 47 of 2021. I hold that the plea of res judicata is misconceived.

## **Issue 3: whether the taxation appeal is barred by issue estoppel?**

It was submitted that the AG is barred from challenging the respondents' reliance on PE1 to determine a suitable instruction fee, and that he cannot raise matters that have been settled in the earlier adjudication. It was

- 15 further argued that issue estoppel can be raised and may arise where res judicata could not be established because sameness is lacking in the cause of action. Counsel for the respondents relies on Halsbury's Laws of England 4th Ed. Vol.16 ( Reissue) para 977 as applied by Wejuli, J. in Mubende Parents School Ltd Vs. Uganda Development Bank Ltd & 2 - 20 others, Civil Suit No. 662 of 2015. He contended that the tests of issue estoppel are that the same question was decided in both proceedings; the judicial decision said to create estoppel was final; and the parties to the judicial decision or their privies were the same as those in the proceedings in which estoppel is raised.

For the AG, it was submitted that estoppel is a legal principle that prevents someone from arguing something or asserting a right that contradicts what


- 5 they previously said or agreed to by law. The learned Attorney pressed that estoppel prevents one person from contradicting an action or statement from the past. He denies that, here, estoppel arises, reasoning that, the appeal arises from the taxation Ruling of His Worship Ssalamu Ngobi given on 07 March, 2024. Thus relying on the persuasive Kenyan decision of - 10 Trade Bank Ltd Vs. LZ Engineering Construction Ltd [2000] 1 E. A 266 ( CAK) the learned State Counsel submitted that issue estoppel arises regarding determinations of fact and will bar a party from re-litigating matters already ruled on by court. He concluded that the matters raised in this appeal are matters of law, and issue estoppel cannot apply.

My simple answer to the objection is that this court never finally determined and sealed the fate of the decision that a re-consideration of the bill of costs would yield. The decision on a re-consideration was futuristic and certainly could not have been pre-empted by this court when 20 it adjudicated Misc. Application No. 47 of 2021. The argument that the AG purports to challenge the taxing officer's reliance on PE1 will be considered when this court is dealing with the merits of the appeal especially as embodied under issue 6. Otherwise, I am of the opinion that the objection is devoid of merit and ought to fail.


- 5 **Issue 4: whether the taxation appeal is an abuse of court process?** Learned counsel for the respondent contends that by filing the taxation appeal, the Applicant is abusing the court process because he seeks to relitigate a matter already determined by a competent court. He cites authorities in support including Mukisa Biscuits Co. Ltd Vs. West End - 10 Distributors Ltd [1969] E. A 696 where LAW JA held that a court could invoke section 98 of the CPA to prevent abuse of the court process and avoid injustice. Learned counsel argued that the applicant keeps filing multiple suits which tantamount to abuse of court process. He argues that this appeal epitomizes such conduct. He continues that court actions have - 15 caused injustice and have denied the respondents compensation awards yet the decree was issued a decade ago.

For the AG, the learned State Attorney denies that the AG's action is an abuse of court process. He challenged the respondent to produce evidence 20 of such abuse.

I think the answer to the objection lies in the understanding of the term "abuse of court process" and its application to the matter at hand. In **Attorney General and another Vs. James Mark Kamoga & another,** 25 (supra), the Supreme Court explained that abuse of court process involves the use of the process for an improper purpose or a purpose for which the process was not established. The Court adopted the definition in Blacks


5 Law Dictionary 6th Ed and explained the term 'malicious abuse of legal process'. It stated:

*"A malicious abuse of legal process occurs when the party employs it for some unlawful object, not the purpose which it is intended by*

10 *the law to effect, in other words, a pervasion of it."*

In **Hon. Karuhanga Gerald & Kizza Eron Vs. Attorney General & 2 others** Musota J (as he then was) reviewed several principles as stated in the persuasive Nigerian case of **R- Benkay Nigeria Ltd Vs. Cadbury**

15 **Nigerian PLC SC 29 of 2006** and concluded that the common feature of abuse of court process is the improper use of the judicial process by a party in litigation. I have considered the persuasive Indian case of **Madhu Jajoo Vs. State Bank of Rajasthan, AIR 1999 Raj 1**, where court stated that a proceeding being filed for a collateral purpose or a spurious claim 20 may amount to an abuse of court process and in such a case the court must come with a very heavy hand on a litigant who has the audacity to abuse the judicial process.

Applying the principles from the decisions to the present matter, I do not 25 think challenging a decision of court with which a party is aggrieved and in a proper forum, using the approved mode, as is the case here, constitute an abuse of court process. With respect, on the facts, learned counsel for

 - 5 the respondents seriously misapplied the term and did violence to it. This Court has not been addressed on the specifics of the multiple suits allegedly lodged by the AG with spurious motive or to achieve an unlawful object. As far as its record show, the earlier taxation ruling was appealed to this court as of right. And this court properly entertained and referred - 10 the item of instruction fee for reconsideration by the taxing officer. Therefore, when the AG seeks to assail the decision of the taxing officer made upon a reference, the conduct cannot certainly be said to be an abuse of the court process. The objection lacks merit and is over-ruled.

## 15 **Issue 5: Denial of a hearing**

This is a merits-based issue. From the applicant's arguments, this appears to be the heart of the appeal. The learned State Attorney submitted that the taxing officer should have afforded the AG a hearing before making the impugned award of instruction fee. He cites articles 28 (1) and 44 (c) of the

- 20 Constitution of Uganda, 1995; Rule 9 of the Advocates (Remuneration and Taxation of Costs) Rules, S.1 267-4, and several judicial decisions in support. He invites court to set aside not only the award of instruction fee but the entire award. - 25 In response, it was argued for the respondents that rule 9 of S. I 267-4 is not applicable because the taxation was not of a fresh bill but a reconsideration of an old bill. It was further submitted that it was not

- 5 necessary for the parties to be heard during the fresh taxation because they had earlier submitted on the bill. It was also contended that the taxing officer had to rely only on PE1 (verification report) to establish the number of claimants and assess a suitable instruction fee. In any case, it was urged, PE1 is in possession of the parties and so there was no denial of a - 10 hearing given the specific assignment the taxing officer was expected to execute.

First of all, I am in agreement with learned counsel for the respondents that rule 9 of S. I 267-4 is not applicable on the facts. The rule applies to

- 15 situations where bill of costs is being taxed for the first time. That said, I do not, however, agree that where a fresh taxation is ordered by a Judge under section 68 (2) of the Advocates Act, the parties' right to be heard is extinguished. A bill of costs being a factual statement of services rendered by counsel, and disbursements made, some facts therein could turn out 20 to be untrue thus requiring appearance during taxation. See: the case of **Haji Haruna Mulangwa Vs. Shariff Osman, Civil Reference No. 3 of 2004 [2001-2005] HCB 2 p. 41** (Tsekooko, JSC) which explains what a - 25 In my view, the right to a fair hearing during taxation of a bill encompasses the right to appear either by counsel or in person or through a recognized agent. This right is embedded in article 28 (1) of the Constitution, 1995

bill of costs entails.


- 5 which is entrenched by article 44 (c). There is thus no dubiety that a decision arrived at in denial of a right to a fair hearing is no decision at all. See: **Marko Matovu & 2 others Vs. Mohammed Sseviri & another, Civil Appeal No. 7 of 1978**; **Onyango Oloo Vs. Attorney General [1986-1989] E. A 456; Pascal R. Gakyaro Vs. Civil Aviation Authority, Civil Appeal** - 10 **No. 60 of 2006 (COA).** Although the right to a fair hearing has been said to depend on the circumstances of the case, the nature of the inquiry, the rules under which a tribunal is acting, the subject-matter at issue, etc, as opined in **Mpungu & Sons Transporters Ltd Vs. Attorney General and**

**Kambe Coffee Factory (Coach) Ltd, Civil Appeal No. 17 of 2001 (SCU)**

15 deferring to **Russel Vs. Nolfolk [1949] 1 All ER 109 (Turker L. J)** (per Katureebe, JSC as he then was), I think in the present matter, the circumstances warranted that both parties be heard during re-taxation of the bill of costs. Moreover, regulations 50 and 54 of The Advocates (Remuneration and Taxation of Costs) Regulations create only limited 20 exceptions where a taxing officer may proceed in the absence of a defendant or the parties. I think, and with respect, the taxing officer took the guidance of this court too far and completely misconstrued it when it shut out the parties during re-taxation. The view that submissions were earlier made and thus sufficed, with respect, was no basis for denying the 25 parties a hearing because if those submissions at all existed, they related to the earlier proceedings. In conclusion, having rendered his decision in

denial of the applicant's non-derogable right to be heard, I declare the

5 decision of the officer to be no decision at all. It is null and void as regards the instruction fee of shs. 45,000,000,000 only which he was asked by this court to consider afresh.

## **Issue 6: the taxing officer's reliance on PE1 and not the** 10 **representative order.**

The taxing officer indicated that he relied on PE1. He thus confirmed the very award of instruction fee of shs. 45,000,000,000 which the first officer had given. I am first of all not comfortable with the taxing officer's use of

15 the word "confirm" when he allowed the amount. The learned taxing officer created the impression that he was executing the duties of a confirming court whereas not.

The taxing officer reasoned that the instruction fee of shs. 45,000,000,000 20 represents 3% of the decretal sum of 1,500,000,000,000 (I.5 Trillion). He noted that he was able to confirm the total number of 44,937 claimants. He stated that he had considered the lost property and the awards by Byabakama J. The taxing officer observed that he applied the different awards to the figures confirmed in PE1 and had come up with the total 25 award of shs. 1,523,752,820,000 (One Trillion Five Hundred Twenty Three Billion Seven Hundred Fifty Two Million Eight Hundred Twenty Thousand Shillings). The officer remarked that he had not factored in the interest of

5 25% per annum on the total awards. The taxing officer then found that shs. 45,000,000,000 given by the first officer represents 3% of the decretal sum of 1.5 Trillion and, therefore, closer to 1.534 Trillion. He decided to confirm the award as instruction fee. The allowed aggregate taxed costs was, therefore, shs. 53,236, 176,000 (VAT inclusive).

In the instant appeal, the AG argues that the taxing officer should not have relied on PE1 but the representative order to ascertain the number of plaintiffs, and arrive at an appropriate instruction fee. He denies that the plaintiffs were 44,937 in number. He argues that at law, the number of

15 plaintiffs in a representative suit can only be ascertained from the representative order or the list of plaintiffs published at the time of granting the order.

For the respondents, it was submitted that the taxing officer committed no 20 error of principle by relying on PE1 because he was directed by the Judge to do so. Learned counsel thus questions the AG's attempt to challenge the taxing officer's reliance on PE1.

Having perused the record, I should first of all clear the misunderstanding 25 and the confusion that the AG purports to challenge the representative order. On the contrary, he complains that PE1 is not the proper material for the purposes of establishing the number of plaintiffs on which to assess

5 a suitable instruction fee. Whether that view is right or wrong will be resolved shortly.

I should also clarify that when this court guided the taxing officer to consider PE1 in its reassessment of suitable instruction fee, court did not

- 10 prescribe how the taxing officer was to make the best use of PE1. Court carefully noted that the taxing officer was not restricted to PE1 in the exercise of his discretion. At para 27, page 16 of its ruling, court was cognizant of the fact that the AG disputes the number of 56,081 claimants or plaintiffs alleged to have been represented by counsel. To my mind, this - 15 means court was aware that the number of claimants whether verifiable from PE1 or other material, was not the decisive factor although material in the re-assessment of instruction fee.

I note that whereas this court remarked that it was unable to set aside or 20 maintain the award or make another in the absence of PE1, the net effect of the court's final order in referring the item of instruction fee for reassessment was tantamount to the court setting aside the instruction fee. At para 22, page 12 of the ruling, this court stated that it would not disturb the rest of the awards alleged to be exorbitant save the instruction fee. 25 Again, by this court treating PE1 as important in the re-assessment of

instruction fee, court did not, with respect, imply that PE1 was the only material to inform the re-assessment of instruction fee.

I should add that although this court did not disturb the VAT award of shs. 8,100,000,000, the VAT amount, which is invariably informed by the amount of instruction fee, stood to change if the reassessment of the fee yielded a new figure. That is the context in which the order of this court

10 should be understood.

This court noted at para 25, page 14 of its ruling that there were gaps in the exact number of respondents/ claimants represented in the head suit yet it ought to be one of the yardsticks for determining the amount of work

15 done by counsel, and the instruction fee payable. Court was thus mindful of the fact that the representative order was given to only two plaintiffs to represent the initial 580 individuals and that Obua Sam withdrew from the suit. It noted that some people were allowed to join the suit in their own names (referring to the 2nd to 9th respondents).

In his decision, the taxing officer appears not to have taken these pointers by court very seriously before making his conclusion on the appropriate instruction fee. Therefore, the respondents' claim that this court directed the taxing officer to consider only PE1 to assess a suitable instruction fee, 25 with respect, is erroneous.

5 I also think the taxing officer was in error to rely on only two booklets, if he found it relevant, quite contrary to the record of Byabakama J which indicates that three booklets were admitted at the trial as comprising PE1.

I should clear the aid by stating that, just as Gaswaga J expressed his 10 frustration, I have equally been unable to find PE1 on the record of this court.

Having perused the record, I, however, find the view that there were 44,937 claimants, not supported. PW4 told court that the three booklets (PE1) 15 contain the names of the 'plaintiffs' who sued in Civil Suit No. 06 of 2011. I think being a layman, PW4 did not appreciate the technical nature of the matter. He used the word "plaintiffs" loosely yet in true character of the representative suit, there was only one plaintiff, that is, Akello Betty. The 580 individuals were represented persons or beneficiaries of the decree. 20 By his assertion on oath, PW4 implied that PE1 contains the names of Akello Betty and 580 individuals as per the representative order and as per paragraph 3 of the plaint. That said, the respondents are bound by what PW4 stated. If it transpired that the witness lied and turns out that PE1 in fact contains more names beyond the 580 individuals, a matter 25 which is quite possible, that is not for this court to resolve. With respect, it is the respondents' lawyers and the AG to sort out the legal mess they created. Both sides to the original litigation ought to have been well guided

- 5 by judicial precedents on what a representative suit entails, and on how a represented person could apply to become plaintiff in the suit. This lane was not followed at all as regards the apparent numbers spanning beyond 580. - 10 In the view of this court, had the taxing officer diligently perused the record and appreciated the law regarding representative suits, he would have discovered that there was only one plaintiff who represented 580 individuals/ beneficiaries. He would have also discovered that the 2nd to 9th respondents were neither part of the 580 nor had they obtained any 15 representative order but were added by consent and perhaps with the - magnanimity of the AG after the decree of court was issued. In my opinion, therefore, I find that the initial number of 56,081 claimants which informed the claim of instruction fee, as well as the reduced number of 44,937 claimants which the taxing officer ultimately applied to make the 20 impugned award of instruction fee, baseless.

I further note that both counsel appears at the trial to have treated the 580 individuals as "plaintiffs" which treatment, with respect, was wrong although there appears to be no prejudice because these individuals will 25 benefit from the decree, and are bound by estoppel created by the decree. See: **Dison Okumu & 7 others Vs. Uganda Electricity Transmission Company & 6 others, Civil Appeal No. 18 of 2020.** That apart, the 580

5 individuals and their aggregate awards cannot, in a representative suit, form the basis of any award of instruction fee. In **Rock Petroleum (U) Ltd**

**Vs. Uganda Revenue Authority, Civil Appeal No. 4 of 2017 (SCU)**, the Supreme Court in a second appeal upheld the court of Appeal award of instruction fee to Rock Petroleum (U) Ltd in **Uganda Revenue Authority**

- 10 **Vs. Rock Petroleum (U) Ltd, Court of Appeal Civil Appeal No. 707 of 2012** in the sum of shs. 3,000,000. The amount was given after the Court of Appeal interfered with the High Court award of humongous sum of shs. 5,000,000,000 (Five Billion Shillings) as instruction fee. The first appellate court confined the reduced award to the value of the monetary award due - 15 to Rock Petroleum (U) Ltd only, which the Supreme Court agreed with and upheld. Both courts rejected the 5 Billion instruction fee which had been pegged on the aggregate awards due to the beneficiaries of the representative suit. - 20 I am bound by the wisdom of their Lordships and proceed to apply it with equal force. Accordingly, I hold that the assessment of the instruction fee should have been confined to the total awards due to Akello Betty only, if known. I should add that whether or not the AG agreed to the admission of PE1 in evidence is not license for breaking the law on proper assessment 25 of instruction fee. Thus the arguments coined around issue estoppel, with - respect, was made out of context. I, therefore, hold that the taxing officer committed error of principle.

- 5 I note further that the taxing officer applied 3% to the so-called total value of the subject matter of 1.5 Trillion Shillings. With respect, the appropriate instruction fee ought to have been reassessed on the basis of a sliding scale prescribed in the 6th Schedule to the Advocates (Remuneration and Taxation of Costs) Regulations, the matter being contentious. This would, - 10 however, as noted, only be viable if the aggregate awards due to Akello Betty, was clearly computed. It should be noted that instruction fee in contentious matters in the High Court and the Magistrates Court must, by dint of regulation 37 of the Advocates (Remuneration and Taxation of Costs) Regulations, be based on the 6th schedule as amended by S. I - 15 7/2018. The sliding scale follows a prescribed formula. This only applies where the value of the subject matter can be ascertained from the material listed in paragraph 1 of the schedule. As the amount increases, the rate reduces, with the lowest being 2% of the difference by which the total subject-matter value exceeds 100 Million. It should be recalled that the - 20 use of the sliding scale in this court and the Magistrates court in contentious matters was clarified by the Supreme Court in **Attorney General Vs. Uganda Blankets Manufacturers, Civil Application No. 17 of 1993 (SCU)** where Odoki JSC (as he then was) observed that the practice of taxing officers using a percentage instead of applying a sliding 25 scale, is illegal and must be discouraged.

- 5 I have further noted that whereas the taxing officer cited several precedents, he, with respect, did not take the proper approach in assessing instruction fee. Instruction fee which is sometimes called brief fee as was the case in **Simpson's Sale (London) Limited Vs. Henderson Corporation [1964] All E. R 833**, is a fee paid for counsel to take - 10 instruction or the brief. Thus according to **Premchand Raichand Vs. Quarry Services [1972] E. A 162**, it was noted that the correct approach in assessing the fee is to envisage a hypothetical counsel capable of conducting the particular case effectively but unable or unwilling to insist on the particularly high fee sometimes demanded by counsel of pre- - 15 eminent reputation. One must then estimate what fee this hypothetical character would be content to take on the brief. See: **Ssemogerere & Zachary Olum Vs. Attorney General [2004] 1 E. A 318 (SCU)** (Odoki CJ, Oder and Karokora, JJSC). - 20 In the instant matter, the taxing officer failed to assess the brief fee. However, it was authoritatively guided by the then apex court in the land in **Makula International Vs. His Emminence Cardinal Nsubuga & another Civil Appeal No. 04 of 1981[1982] UG SC 2** that a taxing officer should, in taxing a bill, first find the appropriate scale fee in schedule VI 25 (sometimes referred to as the basic fee), and next, he should consider whether that basic fee should be increased or reduced. And should give reasons for deciding that the fee be increased or decreased. When he


5 decides that the fee be exceeded, he does not arrive at a figure which he awards by multiplying the scale fee by a multiplication factor but places what he considers a fair value upon the works and responsibility involved. He then taxes the instruction fee either by awarding the basic fee or by increasing or decreasing it.

In the instant case, by applying the rate of 3%, the taxing officer faltered on principle. He thus made a manifestly high award of instruction fee of shs. 45,000,000,000. I think this must have caused serious injustice which a court of justice cannot allow to stand. The excessive costs award

15 is a further demonstration of a failure by the taxing officer to apply the correct principles.

For the reasons above, I would, therefore, set aside the entire award of instruction fee. Consequently, I would also set aside the VAT of shs. 20 8,100,000,000 which I think was based on the impugned instruction fee although not explicit in the ruling. There is also no VAT registration certificate on record. Issue 6 is accordingly resolved.

## **Issue 7: the impugned award of shs. 4.5 Billion in instruction fee.**

25 Having resolved issue 6, I do not find it necessary to repeat myself.

## 5 **Issue 8: Remedies.**

The Applicant has asked court to allow the appeal, set aside the award of instruction fee, and the entire awards. The respondents on the other hand prayed for dismissal of the taxation appeal with costs.

- 10 Given my analysis and resolution, the instruction fee of shs. 45,000,000,000 and the VAT of shs. 8,100,000,000 are hereby set aside in their entirety. This leaves undisturbed, the award of shs.136, 127,000 on the rest of the items on the bill. I am acutely aware that this is a matter where this court ought to order the taxing master to again reconsider a - 15 suitable instruction fee. However, given the checkered history of the matter, sending the file back to a taxing officer (for the second time) could result in another set of litigation before this court thus creating a circle of endless adjudication. To avoid multiplicity of actions, at least in this court,

I exercise the powers vested in court by section 68(1) of the Advocates Act

- 20 Cap 295 and decide the matter of instruction fee finally. Thus aware that the aggregate subject matter value as determinable from the judgment of this court or the material mentioned in paragraph 1 of the 6th Schedule to the Regulations is not available, especially in the absence of the exact number of livestock lost by Akello Betty, this court is not able to apply the 25 sliding scale. Court cannot, with certainty, state the basic fee. Thus taking - into account the key principles which I have discussed at length, plus others such as the need to not allow costs to rise to such a level as to

- 5 confine access to the courts to the wealthy; the need to fairly reimburse successful litigants for the costs incurred; the need to remunerate advocates to attract worthy recruits to the profession; the need for consistency in awards so far as is practicable; the fall in the value of money (inflation); what a competent counsel would take as reasonable instruction - 10 fee to pursue the suit in a representative character and founded in detinue, and violation of constitutional right to property by the Government; the public interest considerations; the general conduct of the case which I find was straight forward and fairly simple; the fact that substantial disbursements have been allowed; I would find and accordingly award - 15 shs. 100,000,000 (One Hundred Million) in instruction fee in civil suit No. 006 of 2011: I am fortified by the binding views in **Attorney General Vs. Uganda Blankets Manufacturers, Civil Application No. 17 of 1993; Nicholas Roussos Vs. Ghulam Hussein Habib Virani & another, Civil Appeal No. 6 of 1995** (Manyindo DCJ); **Pardhan Vs. Osman (1969) E. A** 20 **528**.

In closing, given that this court has not disturbed the awards on other items totaling shs. 136, 127,000 in costs, and given the award of instruction fee of shs. 100,000,000, the Applicant as Defendant in the 25 head suit shall pay the aggregate taxed costs of shs. 236,127,000 (Two Hundred Thirty Six Million One Hundred Twenty Seven Thousand Shillings) in the head suit. The costs shall be paid through M/s Bashasha

- 5 & Co. Advocates as ordered by Ajiji J in M. A No.099 of 2019, the decision having not been disturbed by any court. The compensation and other awards given by Byabakama J shall be paid to each beneficiary and the plaintiff as directed by Ajiji J. I decline to allow VAT on instruction fee since there is no VAT certificate on court record shown to have been issued by - 10 the Uganda Revenue Authority to M/s Bashasha & Co. Advocates. I award costs of this taxation Appeal to the Attorney General to be paid by the 1st to 9th respondents only.

It is so ordered.

15 Delivered in Court this 17 January, 2025.

**George Okello JUDGE**

20 **9:50 Am**

## **17/01/2025**

## **Attendance**

Mr. Tuhangane Wilbroad, State Attorney holding brief for Mr. Brian Musota, Senior State Attorney, for the Applicant Mr. Idambi Paul, counsel for the Respondents, in court Mr. Odoo Simon Peter, counsel for Akello Betty and 44937 represented 30 persons (excluding Ongia John Francis and his 07 colleagues), in court 1st Respondent (Akello Betty) and some persons she represent are in court 2nd to 8th Respondents absent Mr. Esau Opio, Court clerk

35 **George Okello JUDGE**