Bahimbisomwe v Rwabinumi (Civil Reference 1 of 2009) [2009] UGCA 62 (11 February 2009)

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CORAM: HON. JUSTICE A. TWINOMUJUNI. JA

#### **CIVIL REFERENCE NO.01 OF 2009**

HOPE BAHIMBISOMWE....................................

# **VERSUS**

JULIUS RWABINUMI ....................................

#### JUDGMENT ON THE REFERENCE:

This is a reference against taxation of a Bill of costs lodged by the applicant in this Court on 30<sup>th</sup> July 2008 in which her claims for costs of Ug. Shs.22,359,000/= was reduced to Ug.shs.3,721.400 =. The applicant was not satisfied with the manner and the result of the taxation hence this reference to a single justice. In her Memorandum of Reference filed in this Court on 8<sup>th</sup> January 2009, the applicants raise the following complaints:-

$\cdot$ 1. That the taxing officer, Her Worship Nakibule Kiseka Gladys awarded meagre and inadequate costs to the applicant.

$\mathbf{I}$

That the said taxing officer rvronglv applicd thc princiJrles in relation to laration ol' llill ol Cos(s tr.r thc applicant's bill of costs and enderl up a\*arding manil'estly very lorv costs to thc :rpplic:rnt in hcr rrrlinrl dated 31"' December, 200E. 1

That the said taxing officer cxhibited bias against thi, appticant in her ruling dated 3l'r Decenrber 2008, rnd undcr taxed the applicant's Bill of costs." 3

The reference was first scheduled for hearing belbre rne on 9'l'Januarl' 2009. On that day counsel for the applicant, Mrs Veni Murangira. appeared together rvith Mr. Denise Byaruhanga learned counsel fiorr the firm ofadvocates representing the respondent. The applicant \\'as present but the respondent was not.

N'lr. 81'aruharrga applicd fbr adiottrttntr-nt or'r tlrc lrounrls tltrt \1r Mwebasa, the senior panner in their finr. ri,ho had persona)h hantiled lhc matter rvas in Mbarara. I{e asked for a shorl adjournnrent to enablc Mwebesa to be present but assured me that he rr,ould takc thc opportunitv to prepare to conduct the case should Mr. M"i,ebesa FAILto appear again. Despite strong opposition from Mrs Murangira, I granted adjournrnent because I felt that though Mr. Mrvebesa had been selved. hc had reccir ccl very short notice. I, however, made it clear that I would hear the case on l3'l'January 2009 whether the respondent was rcprcsentetl ol not bccausc on that day, I had to leave thc Annual Juclgus Conlcloncc in Lntcbbc tc, come to hear the case and go back to Entehbc. 'l-lrc matter rr as cor ts itlcrcd rrrgunt.

On $13/1/2009$ I returned to my chamber to hear the matter. The applicant and her counsel Mrs Murangira were present. Though the respondent was present, neither Mr. Mwebesa nor Mr. Byaruhanga appeared in court. The respondent applied for adjournment on the grounds that his counsel was sick though he did not tell us which one. Then he said he wanted an adjournment to enable him to choose another lawyer!! Counsel for the applicant had been all along complaining that the respondent and his counsel had throughout the proceedings in the High Court used all tactics to delay the hearing of the case. There was plenty of evidence on the files to support her claim. I reminded the respondent that I had granted the last adjournment before and I proceeded with the hearing in presence of the respondent whom I gave all the opportunity to say whatever he wished. Since Mrs. Murangira had made written submissions on the matter and Mr. Mwebesa had made a written submission before the Dy Registrar, which was on the file, the parties made very brief representations and I adjourned to prepare this judgment.

The principles which govern the taxation of costs are now clearly settled. They were considered in several cases such as:-

- (a) Mukula International LTD vs Cardinal Nsubuga (1982) H. C. B. 11 $[CA (UG)]$ - (b) Patrick Makumbi & Another vs Sole Electric, Supreme Court Civil Application No.11/94 - (c) UDB vs Muganga Construction Company LTD (1981) H. CB. 35. - (d)Nicholas Roussos vs Gulam Hussein Habib Virani Supreme **Court Civil Appeal No.6 of 1995.**

The major principles to be derived I'rorn these cases arc:-

:

- (a)That costs cannot be allowed to rise to such a level as to confine acccss ao thc corrrls to lhe \$'c lth\'; - (b)That a successful litigant ought to be fairll, reirnbursed for costs he has had to incur; - (c)That the general level of renruneration oI A(lvoc:ltes nrust be such as to attract recruits to thc profession; - (d)That so far as practical, thcrc should bc consistcncf in thc awards made and having considered reccnt aryards.

The court lnust also take into account tltc taxation lrrlcs govcrning this court, namely schedule three to the Judicaturc (Court o[ Appcal Rulcs) Directions especially rule 9 of that schedule. These rules cannot be applied mechanically. The court rnust be guidcd b1'thc principlcs clcrived from the authorities I have just mentioned above. 'lhe court lltust takc irttt.r:.tccotrnI tltc firct tllrt lr lorrg lirrrc llr:i cllrpscrl :;itrr',.'tltt.-r \\cl'(. r)rir,l(. and many of the figures mentioned in the scale appearing in the nrlr,'s arc completely out of date and totally ridiculousll' out of step rvith today's value of properties or money. l'his court should be rc-luctant to intert'ere' with the discretion of the Taxing ollicer irr dLrine his.job but thar 'discretion must be exercised judiciously. If the guiding principlcs I hnve mentioned above are misconstrued or misapplied this court rlill be justified to interfere. Te same will happen if the Taxing otficer takes inro account extraneous matters, As I norv turn to consider the grounds of reference before me, I rvill take into account all the rxatters I have rnentioned above.

.l

The main issue raised by this reference is captured in the first ground of the reference which is that the Taxing officer awarded to the applicant meagre and inadequate costs. The other two grounds allege that inadequate costs were awarded because the Taxing officer wrongly applied the principles applicable to taxation and also exhibited bias against the applicant. The three grounds are closely interrelated and I propose to deal with them together.

The Bill of costs presented to the Taxing Officer contained items totalling to Ug.shs.22,359,000/ $=$ . The officer awarded Ug.shs.3,721,400/ $=$ . Was this award fair and adequate?

Civil Appeal No.30 of 2007 from which the Bill of costs arose was itself arising from a divorce petition which was decided in the High Court in favour of the applicant. The respondent appealed to this court relying on six grounds of appeal. The main issues in the appeal were:-

- (a) Whether sufficient grounds existed to justify the grant of the divorce. - (b) Whether the respondent was the father of a child born of the applicant named Edison Rubarema and whether the respondent had a duty to maintain the respondent had a duty to maintain the boy. - (e) How to divide a number of properties they had acquired before and during the subsistence of the marriage.

In order to determine whether the award was adequate or not we start with rule 9(2) of the $3^{rd}$ schedule of the Court of Appeal Rules which states:


It is very clear from the above that the discretion to determine what is appropriate is vested in the taxing officer. However, the discretion must be exercised judiciously. What then was the value of this suit? First the petitioner/applicant was seeking for FREEDOM to break away from the marital obligation because the union had gone wrong. It is not easy to quantify the value of FREEDOM from such continued bondage. All I can say is that the value is infinite depending on the nature of the bondage the petitioner is seeking to escape from. Such freedom could be worth millions or billions. The rules of this court I have just cited above requires that the value of the suit be considered before determining the correct amount to be awarded in costs.

Secondly, the petitioner sought maintenance for herself and the boy she claimed was a legitimate son of the respondent. He refused to maintain the boy when he was still very young. This was an issue on appeal which if successful, as was the case here, would result into the respondent being ordered to maintain his wife and his son up to the age of 18 years. I am not in position to accurately arrive at the exact figures that was in issue. However, I have no doubt that this involves millions of Uganda shillings.

Thirdly, the appeal involved the division of matrimonial property which involved a lot of real and movable property. In order to shade some light as to what properties were involved, I reproduce hereunder the orders which were made by the trial judge in favour of the applicant:-

Accordingly, judgment is entered for the petitioner against the respondent and the following orders are made:-

- 1. A decree Nisi is hereby issued annulling the marriage between the petitioner and respondent. - 2. The Decree Nisi is to be operative for six months as from to date, after which Court shall be moved to make the same absolute, or otherwise, as the parties shall pray court to decide. - 3. A maintenance order is hereby issued to the effect that: - a) The respondent is declared and held by court to be the father of the child Edison Rubarema. - b) The petitioner, as mother, is to have custody of the child until the child is of age, or until court makes any other order. - c) The respondent, as father, is ordered to contribute to the maintenance of the child's health, welfare and development which shall also include hospital and other expenses due to sickness, school fees and other education related expenses when the child becomes of school going age. - d) Such respondent's contribution shall be half of the total monthly bill, and shall be paid to the

$\overline{7}$

petitioner in advance for every six months commencing 01.09.06.

- e) Court holds that as from 30.07.04, the date petitioner and child were chased away by respondent, the total monthly maintenance cost on the child has been shs.150,000/= thus making a total of shs.3,750,000/= to date. The respondent's share is half of this sum: shs.1,875,000/=; which the respondent is ordered to pay forthwith to the petitioner. - f) The sum of shs.75,000/= per month shall continue to be the due contribution of respondent towards maintenance of the child, until further orders of court. - g) The monthly contribution of respondent for maintenance of the child may be reviewed by **court, from time to time, on application of a party** to the petition to take into account any relevant issues such as school fees, medical treatment, and the obtaining economic and other factors at the time, having bearing on $\mathbf{a}$ the monthly contribution. - 4. The matrimonial properties are divided between the petitioner and respondent as follows: - i) Land at Kasangati: Out of Kyadondo Block 189 Plot 104: 2 acres:

Court orders the same to be shared equally between the two. If for some reason, physical sharing is not possible, then whoever retains the physical land, or is responsible for its disposal, one way or the other, shall pay half of its value as determined by government valuer, to the other. In case of valuation, both parties have to meet in equal shares the expenses of the Government valuer.

$\ddot{u}$ J. H. Party services business Petitioner is to pay shs.3,000,000/= to respondent as his equal share in the enterprise, whereupon the

business shall solely belong to petitioner.

- Motor Vehicle Minibus (PSV) registration Number iii) UAE 527 K: The respondent is to retain the same, but pay shs.3,500,000/ $=$ to petitioner being half of its current value. - The matrimonial home at Kisasi, Kampala: $iv)$ The respondent is to retain this home but he is to pay shs.3,782,000/ $=$ being the petitioner's **contribution to improvement of the same.** - Plots of land with house at Mparo, Kabale: $\mathbf{v}$ ) **Respondent** is held to be sole owner of same with petitioner having no interest therein. - Motor vehicle Pajero Registration Number UAE $v_i$ ) $887z:$

**Respondent is held responsible for the whereabouts** of the same. The vehicle is part of the matrimonial property jointly owned by both in equal shares. Court assesses its value now at shs.15,000,000/= and orders the respondent to pay shs.7,500,000/= to petitioner being her entitlement in the vehicle.

$\cdots \cdots$

- $vii)$ **Motor** vehicle Toyota Corona Registration Number UAE 944 R Court holds the same to be solely owned by respondent. - viii) Gifts given at introduction ceremony: It is ordered that, as much as it is practically possible, the articles be divided equally between petitioner and respondent. - 5. Any payment ordered to be made by any party shall carry interest at the court rate as from $30.07.04$ , the date of breakdown of the marriage, or in case of a payment accruing in the future, as from the date when that payment becomes due, till payment in full. - 6. The Cross-petition stands dismissed."

This order of the High Court was uphold on appeal.

Learned counsel for the petitioner/appeallant/applicant submitted before me and before the taxing officer that the value of the suit property was

around Ug. Shs.300,000,000/= and that under the authority of DFCU Bank vs Uganda Polly Bags Civil Application of 1998 the applicant should have been awarded between 8% to 10% per Hon. J. M. Okello, JA as he then was] of the value of the property. I am unable to say whether learned counsel is correct in her estimate of the value of the property involved, but from what I have stated above, I have no doubt that the actual value, in monitory terms, of the suit is far above Ug.shs.300,000,000/ $=$ .

In dealing with this matter and applying rule $9(2)$ of 3<sup>rd</sup> schedule to the Court of Appeal Rules, the learned taxing officer stated:-

"I have looked at the record of proceedings, weighed all the benchmarks in Par.9(2) of the Court of Appeal rules that include;

- The amount involved in the appeal. - It's nature, importance and difficulty - The interest of the parties

$\overline{\phantom{a}}$

- The other costs to be allowed, - The general conduct of the proceedings - The fund or person to bear the costs - All other relevant circumstances.

The appeal was not novel since the judge's reliance and findings on the law and fact were not faulted. Save, the appeal strengthened the equality in marriage position under Article 31 of the Constitution of Uganda 1995 and went into depths tracing the history of this doctrine through the Divorce Act

Cap 249, and court decisions already in place such as Tom Kintu Muwonge vs Myllionus Gafabusa, Divorce Appeal 135/1998 [HC]; Chapman vs Chapman [1969] ALL ER 476; Gissing vs Gissing [1970]2 ALL ER 79 7 Falconer vs Falconer [1970] 3 ALL ER 449. The effect of this evolution was that property on marriage becomes a joint trust owned by the spouses as theirs and ought to be equally divided and shared to the extent possible and practicable.

The appeal had no monetary value ascertainable since the appellant appealed the whole decision that included the dismissal of the appellant's cross petition. Despite the consequential award orders it would be difficult and would **need an evaluation report to put value to some of the properties** I thus find that this appeal had no involved therein. ascertainable value to it.

Of Course, all parties had high equal interest in the matter since it involved both of them, their properties and son.

Am cautious that the appellant has been condemned to costs here and below in addition to other cost implications of the trial court's consequential orders that this court upheld.

It is the appellant to meet these costs from the already dilapidated estate that is due for division or sale and from his personal income.


Other circumstances involved are that true this was an appeal but concerned a domestic relationship that soured beyond **repair, but the taxing master is highly cautious that harsh costs** may even cause the debtor unable to meet some of the consequential orders of the trial court, all defeating the interest of justice in the divorce cause/decision and turning punitive!

Thus all weighed, I do find 3[three] million shillings **commensurate instruction fees for such a matter of appeal on** divorce to counsel. It is basically a domestic wrangle with the whole family torn and from which unfortunate counsel should not unjustifiably reap.

## I thus tax off $17,000,000/=$ ."

According to this extract, the learned taxing officer refused to award Ug.shs.20,000,000/= claimed as instruction fees because:-

- (a) The case on appeal was very simple. - (b) The value of the suit was not ascertainable. - (c) It would be too harsh and the respondent would not be able to afford it. - (d) The properties in dispute were dilapidated.

With the greatest respect to the learned taxing officer, I cannot agree that the appeal was a simple. It is possible that she did not have time to read the judgement on appeal [Especially the leading judgment by Twinomujuni, JA. If she had, she would have clearly seen that the appeal was complicated and even involved novel matters that required a

lot of rcsearch to be able to make a decent represcntation to court. It is true that the value of the suit is dift'rcult to ascertain but as the taxing crlllccr, sltc llad a statutory duty to ntalic ir lcirsorrrrtrls cstinurtc lrrtl 1t, arrive at a reasonable award in the circumstances. I arn unable to tlnd the basis upon 'rvhich tl.rc taxirrg officcr lorrncd thc irrrprcssiorr th:rt il' shc awarded more than Ug.shs.3,000,000/: as instruction I'ees, the rcspondent would be unable to pay it. There is no such evidence on recorcl ancl in fact, when the respondent ofl-ered to pay shs.4,000,000/: on this itcnr, thc leamed taxing officer insisted that, that rvould be too much for him!! <sup>I</sup> am equally unable to find out how the Taxing oflicer lbund out that the disputed properties were dilapidated.

It is my considered opinion that if rve accept that the ,u'aluc o1'the suit is more then three hundred million, then if rve applied a nrore comrronl\ applied percentage of 10%, the arvard for prot-essional f-ees should be in the region of thirty rnillion shillings. I1'rve applv a vcr\ lorv pcr'ccnLage of 5% [not very common], the arvard rvould be in tlrc rc'siorr o1'shillings liltccrr rrriIlion ulrly.

I must, however, bear in rnind, belbre reacllin,q a linal ligure. that:-

.y

a J

S;1

- ..(a)Costs should not be so high as to confine access to couft to the wealthy. - (b)Successfi.rl Iitigant ought to be fairly reirnburscd lor costs he has had to incur, - (c) The general level of remuneration of advocales ulusl I)e such as ro attract recnrits to the profession. - (d) therc should be consistcnc)' r"ith rcccnt arrarrls irr sirnilur situations.

(e) The award should take into account the value of money [inflationary situation] at the time of the award.

Taking all these factors into consideration, I find that the claim for Ug.shs.20,000,000/= as professional fees in this appeal was modest and it was a misdirection to reduce it to Ug shs $3,000,000$ - See Premehand

## Reichand Ltd vs Quarry Services [1972] E. A. 182.

I will now briefly comment separately on grounds No.2 and 3 of the reference. From what I have stated at length above, it is obvious that I hold the view that the learned taxing officer failed to apply the guiding principles in taxation matters to this case. This ground must succeed.

Regarding the matter of bias, it is true that the leaned taxing officer took some decisions and made some unfortunate remarks in her ruling which led learned counsel for the applicant to conclude that there was bias on the part of the taxing officer. I am, however, not convinced that it was bias that led her to make the orders that she did.

Regarding the costs in respect of disbursements. I have carefully studied the Bill of costs, the subject matter of this judgment. I find that the figures claimed are so modest and in some cases so small that in my view, taking into account the principles I have mentioned above, the rules of this court, the length of time the appeal took in this court and the current inflationary situation, the claim of only Ug.shs.2,359,000/ $=$ should have been allowed.

In the result, this reference succeeds. The Bill of Costs amounting to Ug.shs.22,359,000/ $=$ should have been allowed and it is hereby allowed The costs of this application are awarded to the applicant.

$\mathcal{U}^{\mathcal{A}}$ Dated at Kampala this........ $\dots$ day of $.2009.$ $\ldots$ $\mathcal{I}$

Lu Hon Justice Amos Twinomujuni STICE OF APPEAL.