Birungi Wilson v Akamba (U) Ltd [1995] UGSC 5 (9 August 1995)

IN THE SUPREME COURT OF UGANDA

AT MENGO

CIVIL APPEAL NO. 12/94

BETWEEN

BIRUMI WILSON ..... ......... APPELLANT

# VERSUS

AKAMBA (U) LTD ...... ...... $\cdots$ RESPONDENT

### RULING

This taxation ruling arose out of an appeal which was heard and dismissed by this Court. The Plaintiff/Appellant brought an action in the High Court against the Defendant/ Respondent for damages for breach of contract on the ground that the Defendant/Respondent delivered the contract goods very much outside the contract time. As Justice Okello observed in his judgment the case overdelayed in court and he blamed counsel for the Plaintiff/Appellant. On appeal the Judges had before them 3 grounds of appeal to consider and the appeal was heard and dismissed on 21.3.95 with costs, hence this bill of costs. As already pointed out by counsel for the Respondent the taxing officer is guided by para 9 $(2)$ of the 3rd schedule to Supreme Court Rules, which reads:-

"The fee to be allowed for instructions to appeal or to oppose an appeal shall be such as the taxing officer consider reasonable,<br>having regard to the amount involved, in the appeal, its nature, umportance and difficulty,<br>the interest of the parties, the other costs to be allowed, the general conduct of the proceedings and all other relevant circumstances."

Before I rpoceed to tax the bill I must say that counsel for the appellant failed to attend the hearing though he was duly served as evidenced by an affidavit of service and a copy of the taxation hearing notice duly signed and stamped and

the taxing officer proceeded to tax the bill on the

$\overline{2}$

authority of para 8 of the 3rd schedule to the Supreme Court Rules.

I have considered the amount involved in the appeal which was $Shs.6.48m$ = claimed as special damages and also general damages and interest at the rate of 25% p.a. breach of contract and I find that the amount involved was not really big condisering other cases which have been handled by this Court.

I have to consider its nature. This was an appeal where the Judges of the Supreme Court had to determined whether the Judge of the High Court erred in finding that the Defendant/Respondent was a party to the contract in issue and further whether the Judge exercised his discretion judiciously in refusing to grant an adjournment and lastly whether the Judge erred in finding that the Plaintiff/Appellant's evidence of proof of financial loss was not cognate. Judged from the nature of the grounds of the appeal, this was a simple appeal and grounds themselves were not strong. The Judge of the High Court had already expressed in hisJudgment that counsel for the Plaintiff/Appellant had delayed the disposal of the case. I therefore find that there was nothing noval about this appeal and it is a very simple appeal which was disposed off with a very shortime. I must say that both parties were interested in the appeal and persued it vigorously. I find that since the appeal was dismissed and considering the above factors, the fee of Shs.1,500,000= claimed is rather too high. I find a figure of Shs.1,200,000= reasonable for item I. I disallow item 2 on the authorityeof Patrick Makumbi & Another Vs. Sole Electrics (U) Ltd. Civil Application No. 11 of 1994

been paid at the time of taxation the taxation of that item should be deferred with the CTL is paid and the receipts issued. An Advocate shouldn't be rembursed for what he has not spent. I therefore disallow item 2 claimed as 15% CTL on professional fees. The CTL should have been paid and counsel should have claimed it was disbursements. Items 3 and 4 are disallowed for these should be vovered under item I. Perusing a record of appeal and preparing a list of authorities are part of the duty of an Advocate who has been briefed to handle an appeal and should therefore appear as instruction fees. Item 5 I allow Shs.20,000/= being the costs of travel in persual vehicle and for attendance. Item 6 I allow Shs.20,000/=.and item 7 I allow 20,000=. I allow Shs. 20,000= on item 8 and Shs.20,000/= for item 9 being transport and attending Registrar for taxation. All in all the bill of costs is taxed and allowed at Shs. $1,300,000=$

TURY AMUBONA $\mathbb{R}_{+}$ **DEPTTY** REGISTRAR. $95.$

### $9/8/95$

Mr. Kawesa for the Respondent $\mbox{Mr.}$ Matovu for the $\sp{R}_{\mbox{espondent}}$ absent Mr. Emma Manano court clerk

Ruling delivered.

E. TURYAMOBONA REGISTRAR.

$\mathbf{A}$

#### $9/8/95$

Mr. Kawesa for the Respondent

Mr. Matovu for the Appellant absent

Mr. Kawesa:- Mr. Matovu for the Appellant is absent. He was served and there is an affidavit of service served by our clerk Mr. Katengga and it is dated 9.8.95 and was filed on the same day. There is no explanation as to why he is not here. I pray that the bill be taxed exparte.

Taxing Officer:- I have perused the affidavit of service and a copy of the hearing notice duly signed and stamped by Sebalu & Lule Advocates and Iam satisfied that they were aware of taxation hearing date. The date indicated on the hearing notice is 9.8.95 and 2.30 p.m. It is now 3.15 p.m. and nobody from Ms. Sebalu & Lule & Company Advocates is here to attend taxation.

I find that it is a proper case for court to proceed to tax the bill not withstanding the absence of the Advocate for Para 8 of the 3rd schedule to the Supreme Court Rules provides:-

> "If any party or advocate who has been duly served with a notice of taxation fails to appear at the date and time specified in such notice, the taxing officer may<br>proceed to tax the bill notwithstanding such absence/"

Taxation to proceed.

E. TURYAMUBONA DEPUTY REGISTRAR.

..

Mr. Kawesa:- This bill of costs by the Respondent arises aut of an appeal to the Supreme Court against the order and decision in the H. C. C,S. No.152 of 1990 which was dismissed by this court with costs. The Appellant had brought the H. C. C. S. general damages and interest at the rate of 25% for breach of contract and the suit was dismissed in the High Court. In that regard to oppose such appeal the instructing fees quoted in the bill of costs is fair and reasonable and should ne accepted as it is.

$5$

In preparation to oppose the appeal counsel for the Respondent carried out the research and various subjects in support of the High Court decision. Taxation is governed by para 9 of the 3rd schedule. I pray that you ref on it while taxing the bill of costs. I pray that the figures be allowed.

## VAMIRONA **TTY REGISTRAR.**

9.8:95