Attorney General v Ssemwogerere and Another (Civil Application 20 of 2000) [2001] UGSC 22 (2 February 2001)

Full Case Text

## REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT MENGO

(CORUM: J. W. N. TSEKOOKO, JSC)

## CIVIL APPLICATION NO. 20 2000 $\mathbf{O}\mathbf{F}$

**BETWEEN**

| ATTORNEY GENERAL ------------------------------------ | | | |-------------------------------------------------------|---------------------|----------------------------------------------------| | | | AND | | | 1. K. SSEMWOGERERE) | | | | | ZACHARY OLUM ) ----------------------------------- |

## (Reference from the Taxation Decision of W. Masalu-Musene, Officer, dated 15th Esq., Taxing August, *2000* in Constitutional Appeal No. 1 of 2000)

**RULING:** This is a reference to me as a single Judge from the taxation order dated 15th August 2000 of his worship W. Masalu-Musene, Esq., Registrar of the Court in his capacity as taxing officer. The reference has been brought by the Attorney General under subrules (1) and (3) of Rule 105 of the Court Rules.

In this ruling I will refer to the Attorney General as the applicant and to Dr. P. K. Ssemwogerere and Zachary Olum as the first and second respondent respectively. Let me first set out the background to the reference.

In 1999 the Parliament of Uganda passed the Referendum and Other Provisions Act, 1999 in circumstances from which the two respondents, as leaders of the Democratic Party, questioned the

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validity of the Act. They petitioned the Constltuional Court praying, among other prayers, that the Act be declared null and void. There was no respondent to the petition. When the petition came up for hearing, the present applicant, who had been serued with copies of the petition as required by law, raised four preliminary objections to the competence of the petition and moved the Constitutional Court to strike out the petition. All the objections were upheld and consequently the Constitutional Court struck out the petition. The respondents successfully appealed to this Couft against the decision of the Constitutional Court. The respondents were awarded costs. They then filed their joint bill of costs claiming for Shs.1,551,959,000/= of which Shs.1,550,000,000/= was instruction fee.

At the hearing of the taxation, before the taxing officer, counsel for the applicant conceded the claims for Shs.1,959,0001-, which comprised undisputed items in the bill. At the same hearing of the taxation, Mr. Cheborion, the Commissioner for Civil Litigation who represented the present applicant before the taxing officer, suggested that the respondents could be entitled to at least Shs.20,000,000/= 3n6 at most Shs.40,000,000/=, as instruction fee.

Before me, the same learned Commissioner for Civil Litigatlon has suggested that the respondents should be awarded about Shs.5,000,000/=. I will revert to this matter later in this ruling.

While appearing before the taxing officer, Mr, Balikudembe, Counsel for the respondents, argued that his clients were entitled to the whole claim of the instruction fees of Shs.1.55 billion/=. The learned taxing officer taxed off Shs.1.2 billion/= and awarded the respondents Shs.350,000,000/= 65 instruction fees. Both parties were not satisfied with this award. In the result the applicant has made this reference to me raising four grounds of objection to the order of the taxing officer. At the same time, the respondents have made a cross-reference and they, too, have raised four grounds of objection.

The same counsel who had appeared before the taxing officer are the same ones who argued the reference before me. These are Mr. Cheborion Barishaki, Commissioner for Civil Litigation who appeared for the applicant while Mr. Balikudembe, appeared for the two respondents.

Mr. Cheborion argued grounds 1 and 4 of the reference followed by ground 3 and ground 2 in that order. Mr. Balikuddembe replied to Mr. Cheborion's arguments at the same time as he argued grounds in the cross-reference. Thus when he replied to grounds 1 and 4 of the reference, he also argued ground 2 of the crossreference. He then argued ground 2 of the reference together with ground 4 of the cross-reference. Lastly he argued ground 3 of the reference together with grounds 1 and 3 of the cross-reference.

Notwithstanding that order, in the course of their submissions, learned counsel moved from one group of grounds to the other.

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Like Counsel, I will discuss grounds one and four of the reference together with ground two of the cross-reference. Grounds one and four of the reference are formulated as follows: -

- 1. That the bill of costs as taxed to the tune of Shs.351,959,000/= -- -------is in all circumstances manifestly excessive. - 4. That the taxing officer erred when he held that the value of the subject matter was more than gold and worth billions of shillings and based his decision on this finding.

Ground two of the cross-reference is stated as follows:-

The amount of costs allowed by the Registrar of Shs.357,9591= --------is manifestly inadequate.

The learned Commissioner for Civil Litigatlon prefaced his submissions by referring me to the general principles applicable to taxation of costs as set forth in Attornev General Vs. Uqanda Blankets Manufacturers U )Ltd. Supreme Court Civil application No. 17 of 1993 (unrepofted)? They were summarised by Odoki, JSC, in his ruling at page 9 et seq.

The learned Commissioner then submitted in reference to grounds 1 and 4 of the reference contending that the amount awarded by the

taxing officer is too excessive. He relied on De Souza vs. Kerrao (1960) EA602, Pardan vs. Osman (1969) EA.520 Premchand Richard Ltd. And Another Vs. Ouarrv Services of EA. - Ltd (1972) EA. 162 and Patrick Makumbi Another Vs, Sole Electrics (U) Ltd. Su p. Court Civil Application No.11/94 (unrepofted). He argued that a court will interfere with an award of the taxing officer if the award of the taxing officer amounts to injustice to one party. The learned Commissioner also contended that the work involved in arguing the preliminary objections by the Counsel for the respondents in the Constitutional Court was not on the substance of the petition but on familiar matters upon which the Constitutional Court and this Court had made easily accessible previous decisions. That the matters raised were not complex. He stated, and here I agree with him, that the appeal was argued for only two days, with each side taking only one day. In the circumstances the learned Commissioner submitted that the amount of Shs.350,000,000/= awarded was too excessive.

Mr. Balikudembe defended the award of the instruction fees Shs.350m/=. Indeed he went further when arguing the second ground of cross-reference and contended that the original claim of Shs.1.550,000,000/= should be restored because the amount of Shs.350m/= instruction fee is not excessive but rather is too inadequate.

Learned Counsel submitted that when he awarded Shs.350m/=, the taxing officer relied on relevant principles, the value

of the appeal, the nature and the importance of the case before he awarded that figure. He contended that the award was in conformity with the provisions of rule 9(2) of the 3'd schedule to the Rules of the Couft. He argued that the case was worth more than gold because, the rights of the population as championed in the appeal were valueless and therefore worth billions of shillings. Learned counsel was however unable to provlde authority in support of the claim of Shs.1.5b7=, or indeed for Shs.350m/=, as instruction fees, contending that the case had no similar authority to rely on. Replying on ground 2 of the cross-reference, Mr. Cheborion contended that the ground is "obnoxious" and contrary to available authorities to the effect that costs should be at a reasonable level that will enable both the poor and the rich to go to courts. That the taxing officer erred when he took into account the enactment of the Referendum Act, 2000, which Act was not a subject of or one of the subjects of, litigation which gave rise to this application.

Item 1 in the bill of costs is the claim For instruction fees. It was formulated in the following words: -

"To instruction fees to file and prosecute Constitutional Appeal against the decision of the Constitutional Couft dismissing a Constitutional Petition of great interest, to the parties and of Great National, Political and Constitutional Importance that required intensive and extensive study and research on the Constitution and related Statutes and legal authorities

both of Uganda Courts of Judicature and from jurisdictions in Commonwealth Countries and an appeal involving complex issues of law leading to good legal precedents; the subject matter of the appeal being priceless otherwise it is worth billions and billions of money".

I have read the record of appeal and of the proceedings before the taxing officer. The authorities cited in the appeal cannot be said to be entirely new in constitutional matters in this Court. While the effofts of Counsel to do research so as to get authorities to assist the Court is appreciated, and should be encouraged, there is nothing in the appeal which suggests that the appellants' Counsel spent a great deal of time and effort doing research. I agree that the issues in the appeal had to be argued, but the learned Counsel for the respondents did not during his submissions point out the complex issues of fact or law and the nature of their complexity. Merely because decisions from the Commonwealth and other jurisdictions were quoted during the hearing is not per se evidence of complexity of issues in a single appeal.

The reference and the cross-reference were instituted by virtue of Rule 105(1) and (3). The two sub-rules read as follows:-

(1) "Any person who is dissatisfied with a decision of the Registrar in his or her capacity as a taxing officer may require any matter of law or principle to be

referred to a Judge of the Court for his or her

decision and the Judge shall determine the matter as the iustice of the case shall require. (emphasis added)

(3) Any person who contends that a bill of costs as taxed is, in all the circumstances, manifestly excessive or Manifestly inadequate, may require the bill to be referred to a Judge and the Judge may make such deduction or addition, as will render the bill reasonable".

A reference of the decision of a taxing officer to a judge is in the nature of an appeal. This means I have to reconsider the matters giving rise to the taxation of costs, the arguments raised before the taxing officer, his ruling and the arguments raised before me and the law applicable.

In order to justify interference by the judge, the applicant must show: -

- (1) that either a matter of law or a matter of principle is involved in the decision of the taxing officer; or - (2) that the bill as taxed is, in all the circumstances, manifestly excessive or that it is manifestly inadequate.

Mr. Cheborion contends that the award contravened a principle of law, which is that costs should be kept at a reasonable level to enable the poor access to the courts. He emphasized that the amount is manifestly excessive. Mr. Balikudembe contends that in all the circumstances the amount awarded is manifestly inadequate. As I said he was unable to produce authority to suppoft the view that the awarded amount is manifestly inadequate. Is the claim of Shs.1.55 billion/= or award of Shs.350m/= justifiable in this case?

The powers of the Registrar to tax bills of costs are derived from Rule 104 read together with rule 9 of the 3'd schedule to the Rules of the Court. In so far as relevant, rule 104(1) in part reads:-

"---------The costs shall be taxed in accordance with the rules and scale set out in the third schedule to these rules."

Paragraph (2) of rule 9 of the 3'd schedule states that:- 'The fee to be allowed for instructions to appeal or to oppose an appeal shall be a sum that a taxing Officer considers reasonable, having regard to the amount involved in appeal, its nature, importance and difficulty, the interest of the pafties, the other costs to be allowed, the general conduct of the proceedings, the fund or person to bear the costs and all other circumstances". (underlining added).

The afore-mentioned sub-rule provides the guidelines within which a taxing officer exercises discretion when taxing a bill of costs. The guidelines may be put thus:-

(a) the sum to be awarded must be reasonable;

- (b) the reasonableness of the amount depends on: - (i) the amount involved in the appeal. This is obviously quite relevant in cases involving monetary claims. In the present case this factor was absent. - (ii) the nature, impoftance and difficulty of the appeal; - (iii) the interest of the pafties; - (iv) the other costs to be allowed; - (v) the general conduct of the proceedings; - (vi) the fund or person to bear the costs; - (vii) and other circumstances.

In his ruling, the learned taxing officer referred to the said rule 9(2)provisions and a number of decided cases and the general principles.

Some of the cases cited by Mr. Cheborion were decided in reference to Rule 109 of the 1972 Rules and the 3'd schedule to that Rule. These rules are essentially similar to the current rules. But many of the authorities cited originate from appeals in which the subject matter of the litigation or the appeal had a known monetary value, a factor which is wholly absent in the matter before me. Mr. Balikudembe has attached political, constitutional and or rather sentimental value to the petition and the resultant appeal. I doubt whether sentimental value is the proper parameter in assessing costs in this case.

In the Uqanda Blankets Case (supra), taxation related to an appeal the subject of which was a textile factory and its business and assetswhich was valued, in monetary terms, at Shs.2,876,983,155/=. Taxation was based on that figure. In Patrick Makumbi case, the appeal, like here, was interlocutory in nature in that the suit had been struck out. Like in this application, there the appeal was against the order striking out the suit. Although the parties attempted to put a monetary value to the subject of the litigation, Manyindo, DCJ, held that the appeal was fought and succeeded on a point of law. He reduced the award of Shs.12ml-, as instructions fees, to Shs.2ml=. The main difference between the Makumbi case and the appeal in this case is that the hearing of the appeal in Makumbi was brief. The learned Deputy Chief lustice referred to the relevant principles, and to such cases as Premchand Richard (supra) and Uganda Blankets (supra). Another instructive decision is that of The Reqistered Trustees of KamDala Institute V DAPC Board Sup. Court Civil Application No. 3 of 1995 (unreported). There, the facts were that the Trustees held a lease of 49 years on a plot of land along Bombo Road in the City of Kampala. The Trustees were Asians whom Amin expelled in 1972. The Uganda Government took over and managed the property. In 1982, Parliament enacted the Expropriated Properties Act, 1982. In 1983, the Trustees applied for repossession of the propefi pursuant to the provisions of the Expropriated

Properties Act, 1982. The application was rejected on the grounds that the lease under which the Trustees held the property expired in 1981 and the lease had reverted to Kampala City Council, the controlling authority. The Trustees filed a suit in the High Court, seeking, among other things, for a declaration that the Act applied to the property. The trial Judge in the High Court dismissed the suit. The Trustees appealed to this court which heard the appeal for two days. This Court allowed the appeal holding, inter alia, that the Act applied to the suit property.

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Counsel for the trustees filed a bill of costs amounting to Shs.115,505,2001-, the bulk of which was instruction fees. The disputed property had been valued at Shs.2,100,000,000/=. fhg taxing officer used this value (placed on the property) and assessed the instruction fees at Shs.70m/=. The taxing officer allowed that sum of Shs.70,000,000/= as instruction fees. The respondent referred the matter to a single Judge of this court who reduced the Instruct fee to Shs.7,000,000/=. He did this after consldering the provisions of para 9(1) (2) and (3) of the third schedule to the 1972 Rules of the Court, which were in force then. These provisions have been wholly lifted and re-enacted in the present rule 9 of the third schedule to the current Rules of the Court, which I have reproduced already. These are the provisions which apply in this reference.

The single judge held that the taxing officer erred in principle in basing the award of instruction fees on the value of the property. He

also held that the appeal before the court was intellectual, that even though the appeal was of some public importance, its importance was limited to one point of law namely the interpretation of a provision of the Expropriated Propefties Act of 1982. The Trustees referred the decision of the single Judge to the full court which upheld the decision of the single Judge.

Like in the present case, counsel for the Trustees had argued in respect of the amount awarded as costs that the appeal was of great O public importance and atso argued that the decision would enable other departed Asians to seek and obtain repossession of their properties. In other words counsel argued, like Mr. Balikuddembe did, that the success of the appeal had far reaching consquences.

The full couft in its ruling stated:-

"Mr. Byenkya stated the appeal was of great public impoftance. We accept that the appeal was of some public importance. However, its impoftance is limited to one point of law namely the interpretation of S.1(1Xc) [of the Act] with regard to the suit land, Further we do not think that the appeal was too complex nor did it present more than normal difficulty nor indeed did it involve exceptional responsibility which in effect is what Mr. Byenkya sought to place on it before us so as to attract a high fee."

In my opinion, the distinctions be0veen the application in the Reqistered Trustee's case and the present application are mainly two. The first is that in the former the appeal involved gaining proprietary interest by the interpretation of the Act whilst in the later the appeal was concerned with Constitutional rights involving interpretation of the Constitution. The second distinction is that the interpretation in the Trustees case concerned ordinary propefi law whilst the later is concerned with interpretation of a provision of the Constitution. But, and it has to be stressed that, the Trustee's case was a substantive appeal where the trial court had decided the suit on its merits, unlike in the proceedings giving rise to this reference where the matter was interlocutory. I find that there are similarities in the two cases in a number of ways. In either case the appeal lasted two days. In either case the arguments involved interpretation of a law. In both cases there is no evidence of exceptional responsibility placed on Counsel calling for extraordinary industry. Nor have I been persuaded that there were complex issues in the appeal, which go beyond other constitutional cases.

Revefting to the seven guidelines which I have already alluded to, I see that guide line (i) is absent in this reference. The same applies to (vii).

If I may now deal with what I call guideline (ii) namely the nature, importance and difficulty of the appeal. The appeal arose out of an interlocutory order and did not involve complicated facts. It

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turned on matters of law. Learned Counsel for the appellant and the learned taxing officer used their imagination to monetise the value of the dispute in an extraordinary fashion. It is accepted that because the appeal raised Constitutional issues under the provisions of the current constitution at an oppoftune time, it aroused appropriate interest and perhaps emotion and sentiment.

Regarding the importance and difficulty of the matter, the appeal is important in that binding opinlons of this Couft were expressed on some Articles of the Constitution. But in my opinion these are matters which Ugandans, especially political leaders like the two applicants, who are conscious of civil duties would be expected to take on. There have been in this country's recent history other equally important Constitutional cases such as A. L. Kavira and P. K. Ssemoqerere Vs. E. Ruoumavo and others - Constitutional case No.1 of 1979; and Prof. E. F. SsemDebwa Vs. Attornev General Constitutionalcase No.1 of 1986, the only difference being that these two were decided at first instance, and not on appeal, and therefore, there are bound to be factors to affect the amount of costs awarded.

My brother Mulenga J. S. C., restated some pertinent principles, which apply in a review of taxation of costs. In his ruling in the Bank of Uqanda vs. Banco Arabe Espanol - Sup. Court Civil Apolication No.23 of 1999 (unreported), he said:-

"Counsel would do well to have (these principles)in mind when deciding to make, andlor when framing grounds of a reference. The first is that save in exceptional cases,

a judge does not interfere with the assessment of what the taxing officer considers to be a reasonable fee. This is because it is generally accepted that questions, which are solely of quantum of costs, are matters with which the Taxing Officer is pafticularly fitted to deal and in which he has more experience than the Judge. Consequently a Judge will not alter a fee allowed by the taxing officer merely because in his opinion he should have allowed a higher or lower amount.

Secondly, an exceptional case ls where it is shown expressly or by inference that in assessing and arriving at the quantum of the fee allowed, the taxing officer exercised, or applied, a wrong principle. In this regard, application of a wrong principle is capable of being inferred from an award of an amount, which is manifestly excessive or manifestly low. Thirdly, even if it is shown that the taxing officer erred on principle, the Judge should interfere only on being satisfied that the error substantially affected the decision on quantum and that up-holding the amount allowed would cause injustice to one of the parties".

I share these views and see also Steel & Petrd Vs. Uoanda Suqar Factory (1970) EA 141 at P.143..

l() It appears to me that even though the learned taxing officer alluded to relevant principles and provisions pertinent to the taxation of costs, nevertheless, and with due respect to him, he was unduly influenced by matters not relevant to the issues of taxation when considering the essentials.

In the ruling he stated, for instance, that:-

'The essential principles of good governance, fundamental human rights and the rule of law, including the independence of the Judiciary call for the relevant institutions, notably the Executive, the Legislature and the Judiciary to act in utmost good faith and respect each other if the legitimate aspirations of the people in any civilized nation like Uganda have to be met. Each institution must exercise responsibility and restraint in the exercise of its power within its own constitutional sphere so as not to encroach on the legitimate discharge of constitutional functions by other institutions. These are the very principles which the Supreme Court Justices elaborated on at length in their respective judgements and one cannot minimize such principles as simple.

In their judgments, the Supreme Court lustices emphasized the importance of the supremacy of the constitution, over and above any other legislation, be it procedural or substantive. The bold decision of the Supreme Court put Uganda on the right path as far as embracing the culture of constitutionalism and judicial independence are concerned. In fact Ugandans can now walk with heads high as much as the judgements of the Supreme Court Justices clearly

demonstrated that constitutionalism and the rule of law are the order of the day in Uganda.

And the case, which has brought about such increased respectable international image of this country cannot be said to be simple, and must attract a reasonable high instruction fees".

This passage is a subject of complaint in ground three of the reference which will be considered next. But this passage includes a lot of matters, such as international respectability and bold decisions of the Supreme Court, which should not influence taxation of costs by a taxing officer. I do not see how the international respectability acquired by Uganda after the Court decision was measured.

The learned taxing officer referred to some of the judgments in the Constitutional Appeal to support his assessment of the importance of the appeal. Again the taxing officer placed undue reliance on the fact that many decisions from outside Uganda were cited to the Court during the hearing of the appeal and the Court relied on those decision in the deciding the appeal. He therefore held that the appeal was of great impoftance and complexity.

I should perhaps mention that citation of decided cases from outside our jurisdiction is not peculiar to this case nor is it necessarily the evidence of hard work and industry on part of counsel. Nor is it evidence of the complexity or difficulty of the case. With modern methods of electronic legal research or communication and

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availability in local libraries, it is easy to get these authorities from outside Uganda.

The learned taxing officer referred to Mr. Cheborion's submission and considered the principle of the "person to bear the costs" in these words:-

"I must state that it is the duty of the government to provide essential services to the people. And by so doing, government is not absolved from meeting its liabilities.

In any case Mr. Cheborion did not tell this couft whether or not the government lacked the capacity to meet the costs. It is the finding and holding of this court that government has the capacity to pay whatever costs despite its obligations to the people of Uganda".

It is true that if a pafry to the proceedings to which the bill of costs relate is financially sound, this factor will be taken into account when assessing costs. But that will be a factor only if the award is reasonable. However where public funds are involved, as in the instant case, the fact that tax payers money is Involved must relate to the fairness and not only to the capacity to pay or "who is to bear the costs". In rule 9(2)," the fund or person to bear the costs "must mean among other things, that injustice should not occur to a particular party. The capacity to pay per se is not enough to warrant

big award of costs. The erroneous reasoning on this points contributed to the award of the excessive costs.

And as I have said whilst it can be said that the taxing officer alluded to the principles enshrines in para (2) of Rule 9 of the third schedule, I think with respect, that he incorrectly applied those principles. For instance he said:-

"On the value of the subject matter, I agree with Mr. Balikuddembe for the appellants that priceless cannot be zero, but more than gold. It is something to be treasured by all the people and can be valued in terms of billions of shillings. Deflnitely, anything to do with the interpretation of the Constitution, which is the supreme law of the land, cannot be said to be valued at zero. I have already touched on the nature of importance of the case. I wish to add by agreeing with counsel for the appellants that the appeal was lodged in national interest and touches on the powers and procedure of Parliament, which Parliament is elected by the people of Uganda. The national interest of the appeal is therefore obvious, as can also be seen from the fact that as a result of this appeal, Parliament was hurriedly convened, and in unprecedent manner, passed a new referendum law which enabled referendum to be held within the period stipulated under the Constitution. If the government could meet the extra cost of ensuring Parliament convenes to pass the new act as a result of the appeal, then why not pay reasonable costs of the appeal itself.

Lastly, this court has to bear in mind the principle of consistency of awards. Cases like BANKO ESPANOL vs BANK OF UGANDA, SUPREME COURT CIVIL APPLEAL NO. B OF 1998, wheTe the value of the subject matter was 2 billion and a sum of Shs.330,000,000/= million was awarded will be taken into account. And that case involved the issue of enforcement of a judgment passed in Foreign Jurisdiction. What is involved in the present case is not only concerned with the interpretation of the constitution and other laws as noted, but a matter of great national and political impoftance as already outlined and discussed".

The above quoted passage suggests that the value of the decision in the appeal was worth billions of shilling. These are erroneous assumptions and wrong interpretation of the principles leading to awarding the instruction fee of shs.350,000,000/=. lf 1 may say, so, and with all due respect, I think that this is one of those awards which can very easily deter access to courts by the poor, and even the wealthy.

It has been repeatedly stated by this court that while a successful litigant ought to be lairly reimbursed the costs he has had to incur, a taxing officer has a duty to the public to see that costs do not rise to above a reasonable level so as to deprive access to court all but the wealthy. I agree with the view that the general level of remuneration of advocates must be such as to attract wofthy advocates to the profession. But there must be as far as it is practical consistence in the awards in order to do justice between

one person and another and so that a person contemplating litigation can be advised by his advocate very appropriately what for the kind of case contemplated is likely to be his potential liability for costs: Premchand Richard (supra) Makula International vs. H. E. Cardinal Nsubuqa (1982) HCBII, Uqanda Blankets case (supra) and Bank of Uoanda vs. Bank Arabe Esoanol - Su D. Court Civil Aooli CA tion 23of 1999 (unreported).

The Banco Espanol Case (supra) relied on by the taxing officer was a commercial case and therefore clearly distinguishable from the present case. It could not offer appropriate guidance. It should not have been relied on.

As pointed out earlier a Judge will not interfere with an assessment of costs by a taxing officer unless the taxing officer has misdirected himself in a matter of principle but if the quantum of an assessment is manifestly extravagant, a misdirection of principle may be a necessary inference. I consider that the assessment of Shs.350m/= as instruction fees In this case was based on wrong premises and it is manifestly excessive. I do not accept Mr. Balikudembe's submission that the amount is manifestly inadequate.

Grounds one and four of the reference must succeed while ground two of the cross-reference must fail.

These discussions nearly dispose of the rest of the grounds of the reference and the cross-reference. Let me briefly consider the

rest of the grounds. I shall again follow the order in which they were argued by the two counsel. Ground three of reference complains that the taxing officer erred in principle when in taxing the bill of cost he took into account extraneous' matters, notably the three institutions of state, i.e., the executive, the legislature and the Judiciary.

Since Mr. Balikuddembe argued this ground together with grounds 1 and 3 of the cross-reference, I should reproduce these two here. They state:-

- (1) The Constitutional case had no precedent in this country and has cleared ground for far-reaching Constitutional changes in this country. - (2) That the amount awarded should be as originally prayed for of Shs.1.5.billion to reflect the complexity and importance of the suit.

I have already touched upon these grounds when I discussed grounds 1 and 4 of the reference and ground two of cross-reference.

Mr. Cheborion submitted that the issue of separation of powers was not the subject of the appeal. That the appeal was basically grounded on the rights of the parties to be heard in the Constitutional Court. He contended that the taxing officer was unduly influenced by these matters (separation of powers between Parliament, Executive and Judiciary) when taxing the costs. Counsel, therefore, asked me to set aside the taxation order. Mr.

Balikuddembe for his part submitted that the reference by the registrar as taxing officer to the three arms of government was not an extraneous matter. That the taxing officer was entitled to refer to the three arms of Government because in the Constitutional Court the contention by the Attorney General was that Courts should not interfere with the proceedings of Parliament. Learned counsel asked me to uphold ground three of cross-reference because the petition from which these proceedings arose was impoftant and had no precedent. He asked me to award the original claim of Shs.1.55 billion/=.

He undertook to provide authority in support of the claim for Shs.1.55 billion/=. I have not received the promised authority from him by now.

Counsel contended that he and his colleagues had to do a lot of research in Uganda and Commonwealth countries to help in arguing the appeal. Counsel suppofted the ruling and order of the taxing officer. In reply on grounds 1 and 3 of the cross-reference, Mr. Cheborion submitted that all cases require research.

The passage in the ruling of the taxing officer, which Mr. Cheborion criticised, but which was supported by Mr. Balikuddembe, is found at page 5 of the ruling. I have already reproduced the passage when I discussed ground 1 and 4 of the reference and ground two of cross-reference.

2l I have already said that to suppoft his opinion on the importances of the Appeal the learned taxing officer referred to some of the separate judgments in the Constitutional Appeal and to the fact that case law from other jurisdictions were cited and relied upon in the Supreme Court.

It is clear that for purposes of taxing the instruction fee the learned taxing officer laid undue importance on the issue of separation of powers in relation to the matters contested in the appeal. It does not appear to me that the learned taxing officer bore in mind that rule 9(2) put emphasis on reasonable instruction fees.

I think with respect that the taxing officer went too far when he considered matters, which he thought, had enhanced the importance and complexity of the appeal when he made his taxation ruling. Althg.ugh I agree that in its own way, the appeal was important, the fact that the appeal has no precedent in this country by itself does not justify a claim for an exorbitant instruction fee. Indeed each case is almost always peculiar on its own. I do not accept the argument that because the decision in the appeal would create or created farreaching Constitutional changes (if at all), therefore this justifies exorbitant instructions fee. I do not think that the decision in the appeal is any far-reaching or is significantly different from Constitutional case No. 1 of 1979 (A. L. Kayira and P. K. Ssemogere vs. Edward Ruoumayo and others) or Constitutional cased No.l of 1986 Prof. E. Ssempebwa vs. Attorney General). In the latter case

the Constitutional Court declared Legal Notice No. 6 of 86 null and void. Its effect had far reaching constitutional consequences. Accordingly ground three of the reference must succeed and grounds 1 and 3 of the cross-reference must fail.

Mr. Cheborion next urged ground two of the reference. The complaint is that the taxing officer erred in principle in not taking into account adequately the public interest principle, which requires that costs be kept at reasonable level so as not to keep poor litigants out of Courts.

This ground was argued together with ground four of the crossreference. The latter complains that the Registrar was influenced by the submission of counsel for the Attorney General that fees should be at a reasonable level so as not to keep poor litigants our of court. Poor litigants would never be involved in amending the Constituion".

Again I have in away touched on these grounds. Be that as it may, Mr. Cheborion submitted that the amount of Shs.350m/= awarded as instruction fee was not consistent with previous awards. That consistence is relative to value oF the subject matter and the amount of work, He cited Makumbi Vs. Sole Electric case and rn n r IV . U anda Blanket Manuf r other cases, where awards of costs by taxing officers were drastically reduced on reference to elther a single Judge or the Court. (supra) among

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He submitted that although during taxation he had hinted that the appellants could be awarded between Shs.20m/= and 40m/= he has since looked at the aforementioned cases as well as Reoistered Trustees of Kampala Inst. (supra) Bank of Uoanda Vs . Banco Arabe Esponal (supra) Jaffer Brothers (supra) and Genaral Parts vs. NPART. He asked that Shs.350m/= be reduced to Shs.5m/=.

Mr. Balikuddembe contended that the award of Shs.350m/= is manifestly inadequate and that in awarding Shs.350m/=, the taxing officer took into account all the relevant factors. These factors were the nature and importance of the case, the political and constitutional nature of the appeal. That the Supreme Court made important pronouncements on our law. He contended, surprisingly, in my view, that the poor can never be involved in Constituional amendments, that it is politicians who can do such. He argued that the taxing officer awarded Shs.350m/= after considering the capacity of the Government to pay and that the appeal was in the national Interest and therefore the amount asked for in the bill of costs should be allowed.

It is incorrect to asseft, as did Mr. Balikuddembe do, that the taxing officer was influenced by the submissions of the counsel for the Attorney General that costs be kept at reasonable level so as not to keep poor litigants out of Court. The need for reasonable awards is a well established principle and has been restated in many decisions: Makula International Vs. H. E. Nsubuqa and others See for instance,

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(1982) HCB 11, Uoanda Blankets case (supra) Premchand Reichand Vs. Ouery Services (1972) EA.162. Indeed the fountain of the principle is in subrule (2) of Rule 9 of 3'd schedule which enjoins a taxing officer to make an award which he considers to be reasonable. That is precisely why it is important and necessary to make reasonable as opposed to extravagant awards. It is not far fetched to say that award of exorbitant instruction fees can discourage not only the poor but even the wealthy from instituting constitutional litigation, I!isj pity, I did not inquire from Mr. Balikuddembe what instruction fees had been paid to him by his clients before he took up the proceedings giving rise to this matter. I think that litigants who present bills for taxation should be required to indicate what amount they paid to their lawyers. According to Rule 4(3) of 3'd schedule, no disbursement shall be allowed which has not been paid at the time of taxation, So why should instruction fee not be subject to similar standards? In my opinion ground two of the reference must succeed and ground four of the cross-reference must fail.

Counsel for the respondents has not persuaded me when he argued grounds 2,3 and 4 of cross appeal that his clients are entitled to shs.351,959,000/= awarded or shs.1.5 billion/=. The reference must succeed and the cross-reference must be dismissed with costs to the applicants.

The application before me has no clear-cut precedent to follow. I cannot see how the award of the taxing officer can encourage any

body contemplating legal action in the Constituional Court without belng inhiblted by the consequences of costs. It is true advocates should be adequately remunerated. But equally they should not be extravagantly remunerated; except, perhaps, directly by their own clients.

There is a suggestion of how taxing officers would assess reasonable fee in the English case of Simpsons Motors Vs. Hendon Corpn. (1964) 3 ALL ER 833. Pennycuick, J., considered instructions fee for the equivalent of senior counsel in that case and at page 837 had this to say:

"Counsel for the plaintiff company contended that the proper measure for counsel's fee is such a fee as counsel, competent in the field concerned, would be content to take on the brief. Counsel for the defendant corporation contended that the proper measure is such a fee as counsel appropriate to the brief would be content to take on the brief. As used by counsel in arguments, these expressions come, I think, to much the same thing. In other words, one must envlsage an 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-eminent reputation. Then one must estimate what fee this hypothetical character would be content to take on the brief. I am prepared to apply this measure as a test in the present case, but it is necessary to emphasise that the rule itself uses the words necessary or proper for the attainment of justlce or for enforcing or defending the rights of the party whose costs are being taxed and that the same measure may not always be applicable in the infinite variety of cases which can arise- There is, in the nature of things, no precise standard of measurement. The taxing (master), employing his knowledge and experience, determines what he considers the right figure. The judge in his turn must, I think, consider whether, on his own knowledge and experience, the figure adopted by the taxing master falls above the upper or below the lower limit of the range within which in his view the proper figure would come. If, and only if, it does fall above or below those limits, he should substitute his own figure".

These observations relate to a case where there is no fixed fee and therefore the reasoning is of persuasive value to me in this case. These views are also expressed in different words in some of our judgments already quoted and indeed in rule 9(2) of the 3'd schedule, which enjoins a taxing officer to give reasonable awards.

The rules of this Couft require that a reasonable instruction fee should be given taking various circumstances into account. Under Rule 105(1) I am required to determine this matter as the justice of the case may require. In other words I have to exercise my discretion judicially. I note that the appeal arose from objections raised by the applicant before the trial of the petition. The objections precipitated the dismissal of the petition leading to the appeal. Hence the taxing officer's award and this reference. But the claim by the respondents

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for Shs.1,500,000,000/= has no sound basis whatsoever in this country. The award of Shs.350m/= was based on speculation and is by all standards quite unreasonable and manifestly excessive. I do not think that a reasonable advocate of whatever reputation would In this country and for the litigation involved in this case insist on such a fee from his client. I would reduce it. Because of the peculiarity of this case I consider that a sum of Shs.30,000,000/= is reasonable. I would therefore award the respondents Shs.30,000,000/=. fils award of shs.1,959,000/= was not disputed and I will not intefere with it. In the result I award to the respondents a total of shs.31,959,000/=

Delivered at Mengo this fu.rr day of feit=\*e7-2661.

## J. W. N. Tsekooko.

lustice of the Supreme Court

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