Candia & Another v Best Kemigisha (Miscellaneous Cause 187 of 2022) [2024] UGHCCD 195 (20 November 2024)

### **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION)**

# **MISCELLANEOUS CAUSE NO. 187 OF 2022 (ARISING FROM HCCS NO. 2611 OF 2010 AND CRIMINAL CASE NO. 726 OF 2010)**

#### **1. ALEX CANDIA**

**2. OUNDO DAVID WANDERA:::::::::::::::::::::::::::::::::::::::::::APPLICANT (ADVOCATES)**

#### **VERSUS**

**BEST KEMIGISA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

#### *BEFORE: HON JUSTICE SSEKAANA MUSA*

#### **RULING**

The applicants brought this application under section 57 & 58 of the Advocates Act, and Order 52 of the Civil Procedure Rules SI 71 – 1) for orders that;

- *1. The advocate-client bill of costs arising from Civil Suit No. 261 of 2010 Best Kemigisa v Bob Kasango and Criminal Case No. 726 of 2010 Uganda v Bob Kasango and the result appeal) be taxed and allowed as presented.* - *2. The instruction fees allowed be increased by 1/3.* - *3. That the costs of this application be provided for.*

The grounds of this application are specifically set out in the affidavit of **Oundo David Wandera** which briefly state;

- 1. That upon the respondent's instructions, the applicants represented her and prosecuted to the end Civil Suit No. 261 of 2010 Best Kemigisa for recovery of UGX 3, 831,050,000/= at the Civil Division of the High Court and on a watching brief in Criminal Case No. 726 of 2010 Uganda v Bob Kasango at Buganda Road Court. - 2. The applicants handled both matters to the end and judgment in HCCS No. 261 of 2010 was delivered on 2.3.2017 and Judgment in Criminal Case No. 726 of 2010 was delivered on 28.01.2015 and the accused was found guilty, convicted and sentenced and ordered to refund over 3,376,000,000/=. - 3. That the applicants served the respondent with an Advocate-client bill of costs together with a demand notice for professional fees and disbursements of UGX 1,028,430,000/= which the respondent declined to honour claiming that she is not indebted to the applicants. - 4. That the applicants only recourse in the circumstances is to seek leave of this court to tax the advocate-bill of costs.

The respondent in her affidavit admitted to instructing the law firm of *Balondemu, Candia and Wandera Advocates* to represent her in HCCS No 261 of 2010 for recovery of 3,831,050,000/= and also to hold a watching brief in criminal case No. 726/2010 Uganda v Bob Kasango.

That upon giving the firm instructions, the legal fees to be paid were agreed in advance and she paid in two instalments of Ugs 5,000,000/= on 19th February 2013 and on 25th April 2013.

That the said law firm was instructed to recover the decretal sum and costs from the defendant. The said law firm did not execute the instructions and up to the time of his death, they had failed to recover the decretal sum.

That the legal fees were paid in advance and the respondent is not indebted to the said law firm and they are estopped from claiming any further payments from the respondent.

The applicants in rejoinder contended that the alleged payment was for civil suit No. 162 of 2012 Best Kemigisha v The Red Pepper Publications Ltd since the Red Pepper had tarnished her reputation badly. When they alleged that she had been arrested in the USA with fake dollars.

That the respondent then paid instruction fees of 20,000,000/= for the Red Pepper case in three installments of 5,000,000/=, the 2nd instalment was 10,000,000/= and the 3rd respondent was 5,000,000/=

The applicants were represented by *Daniel Byaruhanga* while the respondent was represented by *Micheal Akampurira and Melvin Ahumuza*.

Court directed both parties to file submissions which have been considered by this court.

### **ISSUE FOR DETERMINATION**

*Whether or not the applicants should be granted leave to file and tax an advocateclient bill of costs?*

### *Determination*

Counsel for the Applicant submitted that section 57 and 58 of the Advocates Act require an itemized bill of costs to be presented to a client on application. Regulation 10 provides for taxation of costs as between advocate and client on application of either party.

The applicants contend that they duly represented the applicant but they were never paid by the respondent and thus the application for leave to file an advocate-client bill of costs.

According to counsel the mere fact a client claims to have paid all the fees to the advocate, is not ground for refusal to tax a bill and it is a question to be determined by the taxing officer.

The respondent's counsel submitted that the respondent duly paid the advocates a sum of 10,000,000/= as was agreed between the parties and it was deposited in two installments as per the bank statement of the respondents.

The respondent further contended that the applicant's firm never executed the respondents fully and they failed to recover the decretal sum and costs and thus they estopped from claiming further payments. It was counsel's submission that the applicants were under an obligation to recover directly from the judgment debtor through taxation of the plaintiff's bill of costs.

That the applicants have not furnished any evidence to prove that they demanded the money from the Judgment debtor-Kasango Bob or applied for execution against the Judgment debtor of his estate. It was contended that this application is premature and falls short of meeting the requirements of the law.

Counsel prayed that the court finds that the applicants failure to execute the respondent's instructions for over 5 years estops them from claiming further payment of legal fees

The applicants' counsel in rejoinder submitted that the payment made by the respondent was in respect of Civil Suit No. 162 of 2012 Best Kemigisha v The Red Pepper Publications Ltd because she considered it very urgent given that her name had been soiled by the publications that were widely circulated.

The applicant's counsel further contended that it was the respondent who informed the advocates that Bob Kasango was a broke man and there was no need to pursue him any further since the President had promised to pay and no instructions for executions were ever given.

## *Analysis*

# **Section 57 of the Advocates Act** provides that;

*No suit shall be brought to recover any costs due to an advocate until one month after a bill of costs has been delivered in accordance with the requirements of this section….*

The above provision was intended to enable the court to oversee and supervise the charging of professional fees if a dispute arose between a lawyer and his client as to quantum or proprietary of the fees charged and that compliance with section 57 and 58 of the Advocates Act was a mandatory pre-condition for the commencement of an action by a lawyer to recover his fees charged. The section does not limit itself to fees that had been agreed upon but is equally applicable where the lawyer and client had agreed on fees payable.

The law envisages that advocates shall charge fees or professional legal fees from their clients. The advocate should have charged fees or agreed on the fees payable before they engage in an advocate-client relationship.

# *Regulation 28 of the Advocate (Professional Conduct) Regulations* provides;

- *(1)No advocate shall charge a fee which is below the specified fee under the Advocates (Remuneration and Taxation of Costs) Regulations.* - *(2)Where the fees are not specified, the advocate shall charge such fees as in the opinion of the Disciplinary Committee are not excessive or extortionate.*

In litigation there are winners and losers. When court awards costs to a successful party, it does so to indemnify him for the expense to which he has been put in having to initiate or defend litigation and not to make a profit in litigation to either the litigant or the advocate. Advocate and own client costs are remuneration that an advocate i.e entitled to, in terms of an agreement or mandate with the client.

The purpose of advocate-client costs is not merely to punish the losing party, but to ensure that the successful party will not be out of pocket in respect of the expenses caused to him by litigation. In other words, one purpose of this kind of costs award is to indemnify the successful party in respect of expenses he would normally not be able to recover. However, even costs on the advocate and client scale will not cover all legal expenses of the successful party.

In my view there should be a distinction between costs charged between Advocate and client and costs charged between party to party. The advocate charges his client for his professional services, as well as for his disbursements regardless of whether the client has won or lost the case. Therefore, the advocate is entitled to demand for payment from his client for the professional services performed by him in accordance with the agreement reached between him and his client when the latter hired him.

The fee for professional services is the fee which is negotiated between the advocate and the client. When the client first consults with the advocate, the advocate will (or should) explain to his client the basis on which he charges for his services. An advocate who represents a client without charging professional legal fees from a client is undercutting colleagues to attract business. The court should not aid such an advocates who runs to court to try to recover his/her costs which he never charged at the beginning of the relationship.

The fee for professional legal services will include extra work done which may not be captured in the scale of advocate remuneration and the scale rarely keeps up with inflation. Some advocates charge on basis of time i.e hourly rates while others may charge per execution of the assignment and it may be higher than what the scale provides. The taxing master may have to consider what the advocate agreed with the client in determining the advocate-client bill of costs.

An advocate who agreed to a specified sum as fees for work to be done cannot turn around to claim over and above what was agreed by filing an advocate-client bill of costs. Generally speaking, the market dictates the amount of fees a particular attorney is able to charge his client, whatever method of assessment he uses. The clients are at liberty to 'shop around' for another competent or incompetent advocate who may offer cheaper rates. See *H&G Advocates v International Aids Vaccine Intiatives & Others Miscellaneous Taxation Appeal No. 05 & 06 of 2021.*

The practice of some advocates who decide to do professional work without charging the clients should be discouraged as it borders on professional misconduct. The client should be charged in accordance with advocates remuneration scales and schedules. The applicants are contending that they did professional work for the respondent for all these years without charging the applicant any professional fees in accordance with the regulations *under the Advocates (Remuneration and Taxation of Costs) Regulations.*

The applicants do not state any amounts charged especially in the criminal case *Uganda v Bob Kasango* at Buganda Road court for watching brief where they attended and are on record. The court is aware that there is no scale to give guidance on how much to charge for watching brief in criminal matters or representation of litigants in criminal court. It is only fair that the litigant is put on notice about the likely cost and fees they would meet before they take a decision to engage the advocate for the services.

The applicants are demanding a sum of 500,000,000/= from the respondent as *instructions to conduct a watching brief for the prosecution of Bob Kasango in Criminal Case No. 726 of 2010 and watching brief in the resultant appeal by Bob* *Kasango who was convicted of stealing 3,371,050,000/= including all appearances in the trial court and appellate court.*

It is not clear how the applicants were instructed to watch brief in the criminal matter and on what terms the professional work was to be executed by the lawyers. This court is weary of allowing every advocate filing an advocate-client bill of costs for work they never intended to bill or to take advantage over a litigant who may not have known the repercussion or consequence of instructions in such matter. The applicants appear to have been offering professional legal services on *'loan or credit'* which they would recover later with assistance of court.

The primary principle applicable to a taxation of a bill of costs is that a successful party gets costs as an indemnification for its expense in having been forced to litigate, but that a moderating balance must be struck to afford the innocent part adequate indemnification only within reasonable bounds. In assessing what is reasonable, all circumstances must be taken into account. See *Hon Ababiku Jesca vs Eriyo Jesca Osuna Misc Applications No. 0004 of 2015, 0031 of 2015 and 0037 of 2015.*

An award of costs on the advocate-client scale may be seen as a 'half-wayhouse' between an award of costs on the party-and-party scale and an award of costs on the advocate-and own-client scale. Definitely, an advocate-and client costs gives 'little more than a taxation between party and party' since it will include more legal work not chargeable under the scale like consultations, letters, attendances at chambers and spending long hours explaining something to one's clients by telephone, sending copies of pleadings for perusal and it may include certain 'luxury' services a client has agreed to pay for.

The applicant filed a suit for recovery of 3,382,050,000/= vide *Civil Suit No. 261 of 2010- Best Kemigisha v Bob Kasango* and the same was successfully prosecuted and Judgment was given to the respondent. According to counsel for the applicant this matter was equally handled without the respondent making any payment or charging the respondent any professional fees from her. The applicants now seek to recover professional fees of 500,000,000/= from the respondent after successfully handling the matter.

The respondent was awarded a sum of 3,376,050,000/= with interest at court rate and costs. The applicants failed or refused or they seem to have abandoned or they have never bothered to recover until the Judgment debtor passed on. There is no evidence on record to show that the applicants ever tried to recover the decretal awards including the costs from the judgment debtor by way of execution before resorting to recover from their client through an advocate-client bill of costs.

Due to the peculiar circumstances surrounding this case, I decline to grant leave to the applicants leave to file an advocate-client bill of costs for taxation.

This application fails for the above reasons and is dismissed with no order as to costs.

I so order.

*SSEKAANA MUSA JUDGE 20 th November 2024*