Byamugisha & Another v National Social Security Fund (Civil Reference 2 of 2012) [2012] UGSC 21 (21 September 2012)

# THE REPUBLIC OF UGANDA

# IN THE SUPREME COURT OF UGANDA

# **AT KAMPALA**

## [CORAM: KITUMBA, J. S. C.]

## CIVIL REFERENCE NO 02 OF 2012

#### 15 **JOSEPH B. BYAMUGISHA** J. B. BYAMUGISHA ADVOCATES

### VERSUS

20 NATIONAL SOCIAL SECURITY FUND::::::::::::::::::::::::::::::::::::

[Arising from Civil Application No. 25 of 2011 and Civil Appeal No.15 of 20091

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# RULING OF C. N. B. KITUMBA JSC.

This is a reference to a single judge from taxation ruling dated 29<sup>th</sup> March 2012 by the Registrar who is the taxing officer of this Court.

30 The ground of the reference as contained in the applicant's letter dated $30<sup>th</sup>$ March 2012 is as follows:

That the learned Registrar erred in law when he upheld the respondent's preliminary objection that he had no power to tax the Advocate/Client bill of costs.

That in reaching the said decision the Registrar did not take into account the provisions of Articles 126 (2) 274, 28 (1) 44 and 45 of the Constitution.

5 · court, his Advocate/Client bill of costs to be taxed by the Registrar. He filed his bill by way of Notice of Motion under sections 55, 57 and 60 of the Advocates Act and section 65(3) of Value Added Tax Act, Rule 10 (1) of the Advocates (Remuneration and Taxation of Costs) Rules and Order 52 Rule 1 and 3 of the Civil Procedure Rules.

The following were grounds of the application as set out in the notice of motion.

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$(i)$ The respondent instructed the applicant to act on its behalf in Supreme Court Civil Appeal No.15 of 2009 (National Social Security Fund and W. H Sentooga t/a Ssetoogo and Partners Vs-Alcon International Ltd).

The respondent paid to the applicant the sum of UGX 233, $(ii)$ 333,334/= on account for instruction fees and disbursements pending the disposal of the appeal.

- The applicant acted for the respondent, which appeal is highly $(iii)$ charged and complex where the respondent seeks to set aside the dismissal by the Court of Appeal of its appeal against the High Court's refusal to set a side an arbitral award in the sum of USD 8,858,469.97 against it; - $(iv)$ The respondent requested the applicant to submit his bill of costs in the said arbitration for its consideration which the applicant did in accordance with the Advocates Act Cap. 267 on 2<sup>nd</sup> June 2011.

By its letter dated 4<sup>th</sup> July 2011, the respondent failed to give any $(v)$ reasonable consideration and in the applicant's letter of July 12, 2011 the applicant forwarded the bill relating to the arbitration with others for payment.

$(vi)$ The respondent has to date not paid the bill of costs or any part thereof.

When the application came up for hearing before the Registrar, Counsel for the respondent raised three preliminary objections.

- Firstly, that counsel of the applicant had quoted provisions of the law which 15 do not vest the Registrar with jurisdiction to tax the Advocate/Client bill of costs in this court. Consequently the application based on such pleadings was a nullity. - Secondly, that the bill of costs which was filed offended section 57(2) (a) of 20 the Advocates Act in that it was signed by a law firm instructed to represent the applicant whereas the law requires that the bill be signed by the advocate who seeks costs. - Thirdly, that the Registrar of the Supreme Court has no powers to tax the 25 Advocate/Client bill of costs as such power is vested in the Registrar of the High Court under section 80 of the Advocates Act. In his ruling the learned Registrar overruled the first and second preliminary objections.

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Regarding the third preliminary objection the learned Registrar held that there was a lacuna in the Supreme Court rules and in the law generally regarding the taxation of Advocate/Client bill of costs arising from Supreme

Court appeals and applications. He held that the remedy which is available to an advocate to recover his Advocate/Client bill of costs is to file a suit for the recovery of costs.

$\cdot\cdot\cdot$ $\tilde{\mathbf{x}}_{\mathbf{v}}$ $\cdot$ 5<sup>'</sup>

The applicant and the respondent were dissatisfied with the ruling of the Registrar. Hence this reference and cross reference to a single judge of this 10 Court under Rule 106 (1) of the Judicature (Supreme Court Rules) Directions S1 13-11.

During the hearing of this reference, the applicant was represented by the learned counsel Messrs Masembe-Kanyerezi and Albert Byamugisha. 15 Learned counsel Mr. Andrew Kasirye represented the respondent. Counsel agreed that the grounds of the reference would be argued first and the grounds of the cross-reference would be argued by counsel for the respondent together with his reply to the submissions on the reference. In this ruling I shall too handle the grounds of the reference and the cross 20 reference in a similar manner.

Mr. Masembe-Kanyerezi for the applicant contended that the learned Registrar of this court erred in law when he held that he had no jurisdiction to tax the Advocate/Client bill of costs relating to an appeal in which the advocate acted in this court.

Counsel argued that Article 132 (2) of the Constitution provides that the appeals lie to the Supreme Court from the decisions of the Court of Appeal as may be prescribed by law. He contended that the appeal from which the 30 current bill of costs arises is such an appeal. Additionally according to section 7 of the Judicature Act, the Supreme Court has powers of the High

s Court and thai scctior.r 43 of thc'Jurlicature Act specifies who tlre officcrs of the Courts of Juclicaturc arc. TI.re Registrars arc incluclcr'l arnong such officers.

He argued tliat by Rule 105(1) of the Supreme Court Rules, tl're Registrar of l0 this Court is designated as the taxing officer of this court and is empowered to tax party to party bill of costs. According to counsel the reading of this rule that it does not give the registrar powers to tax Advocate/Client bill of costs is wrong. In his view, if that was the intention, the rule would have included the word " only" . He contended that the provisions of Rule 109 (3) of 15 the Court of Appeal Rules should have been included in the rules of this court. Rule 109(3) of the Court of Appeal Rules state as follows:

" The remutrcration of an adaocate by ll:,s or her client in respect of the oppeal or application shall be sabject to taxation in the High Court anil 20 shall be gooerned by the fliles a,td scales applicable to proceeilings in that court."

He submitted that sub rule (3) of rule 109 of the Court of Appeal Rules was deliberately not included in rule 105 of the Rules of this court because there 25 was no intention to limit the jurisdiction of the Registrar of this court in taxation matters.

Applicant's counsel relied on Article 126 of the Constitution which lays down the principles which courts must observe when exercising judicial 30 powers. He quoted Articles 21. and 28 of the Constitution on equal treatment and fair kial and urged that requiring the appellant to file a suit in order to

.5 'rccover his Aclvocatc,/CIicnt bill of costs arnouuts to cl iscrirnination ancl denial of fair trial and tlris would bc contrary l.o naturaljustice. In support of his submission he quoter{ the following passage wl.ricl.r was made by L<lrd Reid on natural justice ancl was also referrecl to irr Thc Constitution Law of India.

l0 A Critical Commentary 4tt'Ed by H. M. Seeraai at p.7524.

Lord Reirl made the following ilnportant obseroatiott as ot natural justice wltich has been quoted with approaal:

15 (a) Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all tlrc circumstances, ard I zoould be sorry to see this fwrdamental general principle ilegenerate into a series of haril anil fast rules. Eor a long time tlrc courts lmae, witlrori objection front Parliament, sttpplententeil 20 proceilure laid down in legislation where they haae found that to be necessary for tlis purpose, But before this unusual kind of power is exercised it must be clear that stafirtory procedure is inafficient to achiwe justice and to require adilitional steps would not lrustrate tlrc apparent purpose of the legislation,".

Applicant's counsel criticized the Registrar for holding in his ruling that the advocate,/ applicant's remedy was to file a suit to recover his costs. Counsel argued that according to section 60 (2) of the Advocates Act the taxed costs are final. Before the advocate files a suit for recovery of his costs he must get 30 a certificate of the taxed costs and then file a summary suit in court.

5 in support of his, subrnissiorrs hc rcfcrrcc{ to l(ibuka Musoke & Co. Advocates Vs Liquidator of African Textile Mill Ltd and Sharnra Vs Uhuru High Way Development Ltd [2001.|2 E. A 530.

He further criticized thc. Registrar for holding that the relationship beLweerr l0 the advocate and client in the Supreme Court is contractual, therefore, the court has no powers to tax Advocate/Client bill of costs. Learned counscl submitted that by Rule 2(2) the court may use its inherent powers to prevent abuse of process. It was his view that inherent powers should be used by tl'ris court in the instant situation.

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On that point counsel relied on Alcon Irternational Ltd Vs New Vision Printing and Publishing Co Ltil qnil the Editor in Chief New Vision and Sunilay Vision Ciail Application No. 4 of 201.0, where this court gave an interim order against a skanger to a suit.

It was counsel's contention tl-rat in view of his submission this court has jurisdiction, express, constitutional and inherent to tax party to party and Advocate/Client bill of costs. He prayed court to make an order directing Registrar to tax the applicant's Advocate/Client bill of costs.

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In reply, counsel for the respondent supported the learned Registrar's holding that he had no jurisdiction to tax the Advocate/Client bill of costs. He submitted that jurisdiction has to be conferred on a court by law and can not just be inferred from the general provisions of the Constitution in Articles 30 28,44,45 and 1,26. He quoted the authority of Baku Raphael Obudra and

another Vs A G. S. C. Constitutional Appeal No 15 of 2005.

He submittetl that thc inclusion of the wortl "only" irr rulc 105 (l) was not nc'cessary as that woulr.l Lrrir.rg trbsurclity irr tlrc rulcs. Rcgarding scctions 7 and 43 of thc Juclicaturc Act he arguccl that thosc provisions were consiclcrccl in Beatrice Kobusingye Vs Fiona Nyakana and another S. C. Civil Appcal l0 No 5 of 2004. He contented that the jurisdiction which the appellate court may exercise vide those sections is limited to the orders that can be made by the trial judge or magiskate and not the Registrar as a taxing officer.

Regarding the cross-reference counsel disagreed with the Registrar's holding 15 that there was a lacuna in the Iaw on the taxation of Advocate/Client bill of costs. He submitted that according to section 80 of the Advocates Act the Regiskar of the High Court has the jurisdiction to tax Advocate/Client bill of costs. It was his submission that section 80 of the Advocates Act must be read together with section 14 of the Judicature Act which gives unlimitcd 20 jurisdiction to the High Court. He argued that, however, the Registrar made an error of law to hold that there was a lacuna in the law with regard to taxation of the Advocate/Client bill of costs. In conclusion he contended that the reference had no merit and should be dismissed, but the cross-reference should be allowed.

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In reply, Mr. Masembe Kanyerezi distinguished the authority Baku Raphael Obudra and Another Vs AG (supra) on the basis that there was no statutory provision allowing second appeals to the Supreme Court in election petitions. In the instant reference there is express legal provision by Rule 105 30 (1) of the Rules of this court which provides that the Registrar is the taxing officer. What the advocate gets as costs is laid down in the 3.d schedule item -r.9(4) of thc Rulcs of l.lris cotrrt. Courrscl subr.nittcd that thc aul.hority of - lleatrice Kobusingye Vs Fiona Nyakana (supra) is irrelevarrt to thc rlirtters in this rcfcrcnce.

On the c ross-refcrcrrce hc disagrcetl with counscl's submissiorl tlrat thc bill of costs betvveen party and party should be taxcd by the Registrar of the l0 Supreme Court but the Advocate/Client Bill of Costs should be taxed by the Registrar of the High Court. He argued that in taxation matters the taxing officer uses a lot of discretion. In his view, it would be difficult for two different officers to reach identical decisions in taxation matters in the same case. This would lead to the undesirable result of the client benefiting from I5 costs.

I have carefully listened to the submissions of counsel and perused the legal provisions and the authorities quoted. It is obvious to me that the main issue for determination in this reference is, whether the regiskar of this court has 20 powers to tax the Advocate/Client bill of costs.

Rule 105 of the Rules of this court prooides:

- (1) "The Registrar slmll be a taxhrg officer with powers to tax costs befiiteen party and party of or arisirtg out of any application or appeal to tlrc court, - (2) Tlrc costs shell be taxed in according uith tlrc niles and scale set in the third scltedule to these Rules." - 30 Relying on that provision counsel for the applicant has strongly argued that though sub rule (1) of the rule refers to parry and party bill of costs that does

5. not excludc Advocatc/ Clierrt bill o[ cosl.s. His argumcrrt that if that was tlre intention tlre word " oriy" should lrave bccrr inclutlccl in tl.rc sub rulc (1 ).

In rePly to that argunrcnt counsel for the respondent submittecl that including the word "only" in sub rule one would be absurd. However, he l0 did not elaborate on that point, I am of the considered view that if the word "only" was included it would not have made the provision absurd in any way.

t5 I am inclined to accept the submission by the respondent's counsel that subrule (1) of rule 1"05 is exhaustive of the Registrar's powers regarding taxation. The Registrar has powers to tax party and palty bill of costs. The third schedule to the Rules provide guidance on how the Taxing Officer would tax the bill of costs. Item 16 of the schedule provides for costs where there has been change of advocates in the following terms.

- 20 1.) lf there has been a clunge of adaocate, the bill of costs o.f the first adztocate tuav be annexed to tlnt of tlrc crrrcut adaocate and tlrc total sltowrt as a disbtrsenrcnt. - 2) The bilt shall be taxed in the ordinary zoa!fu tlrc amrent adaocate being heard on it, but the taxing olficer may reEire tlrc fitst adoocate to 2s attend.

## (Underlining mine)

This provision gives powers to the taxing officer to tax the first advocate's bill of costs at the conclusion of the appeal together with that of the second advocate. The words used in item 16(1) state " the bill of costs of the first

30 adaocate anil the total sltowtt as disbursetnent'" This according to my understanding means disbursement to the party and not to the advocate. It 5 'does not, therefore; mean Advocate/Client bill of costs as counsel for the applicant has argued

I appreciate the submission by the respondent's counsel that jurisdiction of the court must be specifically provided by law and not inferred. In the reference before court there is legal provision which provides for the $10$ jurisdiction of the Registrar of this court as a taxing officer namely Rule 105 (1). This rule specifically provides for party to party bill of costs and not Advocate/Client bill of costs.

- Counsel for the applicant has relied on sections 7 and 43 of the Judicature Act 15 for his argument that registrars are officers of courts of judicature and are therefore, the Registrar of this court has powers to tax Advocate/Client bill of costs since the Supreme Court has powers for the court of original jurisdiction. - 20

Section 43 of the Judicature Act provides:

- There shall be such officers of the courts of judicature as may be $(1)$ necessary for the performance of any special duties in connection with the business of the courts of judicature, and such officers shall include the chief registrar, registrars and assistant registrars. - Subject to article 133 of the Constitution, the officers of the courts $(2)$ of judicature shall perform such duties as may be assigned to them under the rules of court and shall be subject to the general direction and supervision of the Chief Justice.

(Underlining mine)

- $\frac{1}{2}$ Subsection (2) clearly states that the officers perform duties assigned to them under the rules of this court. Currently Rule 105(1) only empowers the Registrar of this court to tax party to party bill of costs and the advocate/client bill of costs is not provided for. - Section 7 of the Judicature Act provides: 10

For the purpose of hearing and determining an appeal, the Supreme Court shall have all the powers, authority and jurisdiction vested under any written law in the court from the exercise of the original jurisdiction of which the appeal originally emanated.

This refers to determination of an appeal and taxation of the bill of costs 15 which is not determination of an appeal. It is a step taken after the appeal has been determined.

I appreciate the submission by the respondent's counsel that Rule 105(1) of the Rules of this court stipulates that the Registrar is the taxing officer of this 20 court with powers to tax party to party bill of costs. By this very provision advocates/client bill of costs is excluded and if that was not the intention of the legislature the rule should have provided that the Registrar is the taxing officer of this court and stopped there.

It is right to give a restrictive interpretation to Rule 105 (1) of the Rules of this court. I accept the submission by applicant's counsel that this court has to $21$ and $28$ of the observe the provisions of Articles 126 (2) (a), (e) Constitution which provide principles which courts must follow when administering justice, equal treatment and fair trial. This does not give powers to this court to read in into the rules what is not provided for.

$\frac{1}{2}$ 5 $\frac{1}{2}$ According to the rules of construction of statutes when the words on a statute are clear one must stick to their plain meaning.

The passage by Lord Reid which counsel for the appellant has quoted which states that for the purpose of natural justice the courts may supplement procedure rules, has the following limitation:

"But before this unusual kind of power is exercised it must be clear that statutory procedure is insufficient to achieve justice and to require additional steps would not frustrate the apparent purpose of the legislation,".

I am of the considered view that counsel is imploring this court to do so 15 because he is aware that there is no clear rule vesting the Registrar of this court with powers to tax Advocate/Client bill of costs.

Counsel for the applicant has urged this court to use inherent powers under Rule 2(2) and order the Registrar to tax the Advocate/Client. In the instant $20$ reference there are specific provisions of the law which give the Registrar of the High Court power to tax Advocate/Client bill of costs and we do not have to resort to inherent powers.

## Section 80 of the Advocates Act provides: $25$

"The taxing officer for the taxation of bills under this Act shall be the registrar or a district or deputy registrar of the High Court or, in the absence of a registrar, such other officer as the Chief Justice may appoint; except that in respect of the taxation of costs between party and party arising out of any contentious business brought in a court subordinate to the High Court, the 30 taxing officer shall be a chief magistrate of a magistrate grade 1 with jurisdiction in the area where the suit was heard".

## (Underlining mine)

\*.5<sup>\*\*</sup> I would like to observe that the Advocate / Client bill of costs are under the Advocate's Act the long title which reads:

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"An act to amend and consolidate the law relating to advocates and to make general provisions for purposes connected with the legal profession."

- The same Act provides in part (vi) how advocates costs may be taxed. $10$ According to Article 139 of the Constitution, the High Court has unlimited original Civil and Criminal jurisdiction. Taxation of costs is in my view original jurisdiction of the High Court. - Counsel for the respondent's has correctly submitted that jurisdiction of the $15$ court must be specifically provided for by law and not inferred. This court exactly said that in Baku Raphael Obudra and another Vs Attorney General (Supra). There was no law allowing a second appeal from election petition from the Court of Appeal to the Supreme Court and it could not be inferred. - In this reference it is specifically provided that the Registrar is a taxing 20 officer. He taxes the party to party bill of costs. Regarding the cross reference, there is no lacuna in the law as who taxes the advocate's bill of costs in this court. - It is my considered view that the learned Registrar erred in holding that in 25 the Supreme Court; the relationship between an advocate and a client is purely contractual. He held that, therefore, the advocate/client bill of costs should not come for taxation but should be agreed upon between them. - With due respect I disagree. The Advocate Act and Rules made there under 30 and the Rules of this court provide for the conduct of advocates who are

officials of the courts. They are paid remuneration for their work according to laid down scales. When they wish to contract out of those scales they have to follow certain procedures in making such contracts otherwise such agreements are illegal, null and void. See Kituma Magala & Co Advocates Vs Celtel (U) Ltd S. C. Civil Appeal No 9 of 2010.

I, therefore, hold that the Registrar of this court has no powers to tax the Advocate/Client bill of costs. That power is vested in the Registrar of the High Court.

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In the result the reference fails and the cross reference succeeds with costs to $15$ the respondent.

Dated at Kampala this....................................

C. N. B KITIMENDa.

## JUSTICE OF THE SUPREME COURT