Eitunganane v Ekudo and Another (Taxation Appeal/ Reference 31 of 2021) [2023] UGHCCD 178 (20 June 2023)

### The Republic of Uganda

In The High Court of Uganda at Soroti

Taxation Reference No. 0031 of 2021

(Arising out of Misc. Cause No. 007 of 2021)

Eitunganane Esiangu Kenneth ::::::::::::::::::::::::::::::::::::

### Versus

1. Ekudo Tom Julius

2. The Electoral Commission ::::::::::::::::::::::::::::::::::::

### Before: Hon. Justice Dr Henry Peter Adonyo

# **Judgment**

#### 15 1. Background:

This is an application seeking orders that the award by H/W Aanyu Margaret Chief Magistrate of Soroti in MC No. 007 of 2021 be set aside and the bill of costs be. revised and that the costs of this application be provided for.

The grounds of this application are briefly that the taxation of the $1<sup>st</sup>$ respondent's bill of costs against the applicant was unlawful, excessive and contrary to the 20 principles of taxation.

That the learned magistrate erroneously applied the law, fact and principles of taxation when she awarded shs. 10,000,000/= (Uganda Shillings Ten Million) to a vote recount.

That the learned magistrate erred in law and fact when she wrongly allowed costs 25 of attendance, drawing, filing, service and transport.

$\mathsf{S}$

The 1<sup>st</sup> respondent in an affidavit sworn Alex Timothy Akena an advocate with $\mathsf{S}$ M/s Alaka & Co. Advocates, Counsel for the 1<sup>st</sup> Respondent stated that the amounts awarded on each item were reasonable, justified and in accordance with the law.

The appellant was represented by M/s Omongole & Co. Advocates while the 1<sup>st</sup> respondent was represented by M/s Alaka & Co. Advocates.

Only the appellant's counsel filed submissions which I have duly considered the same.

Resolution:

The appellant had filed MC 007 of 2021 in the Chief Magistrates Court of Soroti for a recount of votes in Gweri County Constituency, Soroti District parliamentary 15 elections held on 14<sup>th</sup> January 2021. The application was dismissed with costs to the respondents. The 1<sup>st</sup> respondent filed his bill of costs which was taxed and an award of Shs. 16,726,000/= made.

The appellant was dissatisfied with the award of the taxed bill of costs and thus appealed to this court.

This matter relates to the desire of the appellant to have reviewed a taxed of a bill of costs.

The relevant principles applicable to the review of taxation matters of this nature were set out in Bank of Uganda v Banco Arabe Espanol Supreme Court Civil

- Application No. 23 of 1999 where it was held that in a case where there is an 25 application by a party to reviewed a taxed bill of costs, the following principles ought to be followed; - 1. The first is that save in exceptional cases, a judge does not interfere with the assessment of what the taxing officer consider 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 particularly 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.

- 2. Secondly, an exceptional case is 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. - 3. 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 upholding the amount allowed would cause injustice to one of the parties. - Before I proceed to determine this Taxation Reference, I must point out that from 20 the proceedings in the lower trial court during the taxation hearing of 31<sup>st</sup> August 2021, counsel for the judgement debtor, (the appellant) informed the trial court that during pre-taxation hearing that parties had agreed to certain items and these include Item 2, Item 3 (150,000), Item 4, Item 5 (60,000), Item 6, Item 7 (150,000), Item 8, Item 9 (60,000), Item 10, Item 11, Item 12(100,000), Items 13, 25 14,15,16, 18 (150,000), 19(200,000), 22, 23,24, 32(500,000 Part 1 and 100,000/=for Part 2, Item 34 agreed to zero and Item 33 agreed to 100,000.

No contrary view was given to that assertion and as such those items remained consented to by both parties and thus are not considered in this appeal and as such I find it strange again for counsel for the appellant to turn around to try seek

$\mathsf{S}$

the impossible after having consented to them to once more seek to have the $\mathsf{S}$ same items reviewed when they were agreed by consent. In trying to do so here, I would consider doing so by the appellant an abuse of the court process which cannot be tolerated.

The appellant submitted on items 2 to 11, 13 to 16, 17, 19, 20, 18, 25 to 28, 29,30,32,33 and 34 and item 31.

When I exclude the items agreed to by the parties during pre-taxation, then those that would be left for consideration would be Items 17, 20,25,26,27,28,29,30 and 31 together with instruction fees which is Item 1.

I will consider the latter as below.

a. Instruction Fees: 15

Counsel submitted that the Magistrate erred in law when she awarded Ug. shs. $10,000,000/$ = as instruction fees when the application was for a vote recount. That this figure was exorbitant seeing as the same was not an election petition.

The issue for determination here is whether the taxing master was right to award Ug. Shs. 10,000,000 which was an amount reserved for election petitions as 20 instruction fees for defending an application for a vote recount.

Section 1 of the Parliamentary Election Act defines an election petition as a petition filed in accordance with section 60.

Section 60 provides inter alia that an election petition shall be filed in the High

Court. 25

> Further the Parliamentary Elections (Interim Provisions) (Election Petition) Rules under Rule $3(c)$ define a petition to mean an election petition supported by an affidavit.

$\mathsf{S}$ Rule 4 further provides for the form of the said petition to be in Form A in the schedule to the Rules.

From the foregoing, it is clear that the Parliamentary Election laws are very specific as to what constitutes an election petition and where it may be filed.

The matter from which this taxation reference arises was an application for a vote recount under section 55 of the Parliamentary Election Act.

It was by way of Notice of Motion supported by an affidavit filed in the Chief Magistrates Court.

It was not a petition in Form A as Rule 4 of Parliamentary Elections (Interim Provisions) (Election Petition) Rules provides.

- From the above provisions of the law it can be safely stated that there is a 15 difference between an application for a vote recount under section 55 and an election petition under section 60 of the Parliamentary Election Act. The Taxing Master should have thus considered these differences when awarding costs in Misc. Cause No. 10 of 2021 which was for a vote recount and noted that The Sixth - Schedule to the Advocates (Remuneration and Taxation of Costs) Regulations S. I. 20 267-4 as amended in 2018 Rule 6 and Rule 9 (1) had different applications.

For avoidance of doubt, Rule 6 of the Sixth Schedule to the Advocates (Remuneration and Taxation of Costs) Regulations S. I 267-4 as amended in 2018 provides that;

For instructions to present or oppose an election petition, the fee shall be as the 25 taxing officer considers reasonable, taking into consideration the nature, importance, complexity and novelty of the petition, the place where and the circumstances in which work or a part of it was done, the time expended, the public interest and all other relevant circumstances, but the fees shall not be less than

5,000,000 shillings for petitions under the Local Governments Act and shall not be $\mathsf{S}$ less than 10,000,000 shillings for petitions under the Parliamentary Elections Act.

On the other hand, Rule 9 of the Sixth Schedule to the Advocates (Remuneration and Taxation of Costs) Regulations S. I 267-4 as amended in 2018 provides for matters not specified and it reads;

For instructions to sue or defend in any case not provided for in this Schedule, the 10 fees shall be reasonable but shall not be less 2,000,000 shillings.

Accordingly, it is my considered view that the Taxing Master ought to not have used the provisions of Rule 6 of the Sixth Schedule to the Advocates (Remuneration and Taxation of Costs) Regulations S. I 267-4 as amended in 2018 in taxing a bill of costs arising from an application arising from a vote recount as this was not one of those matters stated to be arising from an election petition. Rather the Taxing Master should have used Rule 9 (1) of the Sixth Schedule to the Advocates (Remuneration and Taxation of Costs) Regulations S. I 267-4 as amended in 2018 which covers other matters not specified. An application for a

vote recount is one such matter. 20

Given the fact that Rule 9 (1) of the Sixth Schedule to the Advocates (Remuneration and Taxation of Costs) Regulations S. I 267-4 as amended in 2018 was the applicable law, consequently the award of the sum Ug. Shs. 10,000,000 is found to have been an award which was not in accordance with the law and was thus excessive. It is set aside and the awarded amount is reduced to the sum of Shs 4,000,000 which I find reasonable in the circumstances and as it is within the ambit of Rule 9 (1) of the Sixth Schedule to the Advocates (Remuneration and

Taxation of Costs) Regulations S. I 267-4 as amended in 2018.

b. Item 17:


- This item relates to counsel's attendance at court to prosecute Mc 007 of 2021. $\mathsf{S}$ Counsel for the appellant submitted that the figure of Ug. Shs. 850,000/= was excessively high and should be revised by this Honourable Courts given the fact that the application was a vote recount and took only 2 hours to oppose the same and that under Rule 12(1) of the Advocates (Remuneration and Taxation of Costs) - Regulations as amended there is provided Ug. Shs. 100,000 per hour for 10 attendance.

During the taxation hearing, this issue of time taken was raised with counsel for the respondent submitting that the matter took a total of 9 hours, it having commenced at 2:00 p.m. and ended at 10:30 p.m.

Counsel for the appellant on the other hand submitted that the matter took off 15 at 5:00 pm and ended by 9:00 p.m.

This argument was countered by the counsel for the 1<sup>st</sup> respondent who stated that attendance at court does not mean the time when the matter is called upon for hearing but rather the time commences as is fixed by court and for this matter this was 2:00 p.m. with the matter going on up till 10:30 pm he was in court.

The Taxing Master agreed with the assertion of counsel for the 1<sup>st</sup> respondent that the court record showed 2:00 p.m. as the time for hearing and stated that she believed by that time both counsel was in court and as such it was the starting point. She further noted that as much as court did not indicate the time of closure of business, given the voluminous record of the cause she was persuaded that the hearing took a while. She thus taxed attendance at $850,000/$ = for 8½ hours.

The Advocates (Remuneration and Taxation of Costs) Regulations under rule 12 to the Sixth Schedule provide for attendance of court by an advocate to be billed at Shs. 100,000/ $=$ per hour. It does not restrict this attendance to the period of

the hearing. In my considered view, time begins running as per the appointed $\mathsf{S}$ time which is directed by court and as is indicated on the summons for attendance issued to parties. Arising from this consideration, I am persuaded not to interfere with the Taxing Master's award in regard to Item 17 Attendance. The award stays.

#### 10 c. <u>Item 20:</u>

Counsel submitted that this item should be taxed off as it is the 1<sup>st</sup> respondent himself who requested an adjournment. This item relates to attendance by counsel to receive the taxation ruling.

Per the proceedings on 31/08/2021 the matter was adjourned to 1/09/2021 so counsel for the 1<sup>st</sup> respondent could bring the VAT certificate to prove VAT fees. 15 On 1/09/2021 Counsel for the 1<sup>st</sup> respondent did not bring the VAT certificate and agreed with counsel for the appellant that item 21 on VAT fees be done away with. I further note that Item 20 was taxed off at Shs. 200,000/= which was the exact amount requested by the respondent, this means the final award did not include Item 20. That position is confirmed. 20

d. <u>Items 25, 26, 27 and 28:</u>

Counsel for the appellant submitted that these amounts were erroneously awarded and excessive in nature as no receipts were attached to prove the same.

In the proceedings counsel for the appellant stated that they had agreed to items 25,26 and 27 to be taxed at Shs. 150,000 each and item 28 at Shs. 100,000. No 25 evidence was adduced before me that there was no agreement. That being so, the award in respect Items 25, 26, 27 and 28 before the Taxing Master is confirmed as the Taxing Master followed the consent of parties and which consent was not unlawful.

## e. Items 29,30,32,33 and 34:

$\mathsf{S}$

Counsel for the appellant submitted that these were exorbitantly awarded and repetitively itemised by the $1^{st}$ respondent.

Items 29,30,32,33 and 34 are with regard to travel, accommodation and feeding expenses.

In the proceedings it is clear that counsel argued out the award on travel 10 expenses especially with regard to the price of fuel at the time.

Counsel for the respondent stated that both the appellant and the respondent were represented by two counsel and that was why Shs. 1,800,000/= for travel, accommodation and feeding expenses was commensurate. The record of the

lower court also indicates that Counsel for the appellant was in agreement with 15 these considerations that it was fine.

The Taxing Master then found the amounts reasonable to tax item 29 at Shs. 1,800,000/= given that two advocates were in attendance from 27<sup>th</sup> to 29<sup>th</sup> and item 30 at Shs. $1,000,000/=$ .

Given the circumstances, I am in agreement with the Taxing Master who I find 20 did exercise her discretion judiciously and so I will not interfere with her decision on the same.

Further, I also see no reason to interfere with the award on Items 32,33 and 34 as the said award was an exercise of judicial discretion and the appellant has not shown how the exercise of discretion was exercised injudiciously.

f. Item 31:

This item relates to travel expenses to receive the taxation ruling. Per the bill of $\mathsf{S}$ costs this item was taxed off at Shs. 1,500,000/= which was sum asked for by the respondent and as such the final award made does not include item 31.

## 4. <u>Conclusions:</u>

This appeal thus succeeds only in respect to Item 1 of Instruction fees which is the only item this court has revised. The Instruction Fees are set at Shs. $4,000,000/$ = meaning Shs. 6,000,000/= has been taxed off Item 1.

This appeal fails on all the other Items which are confirmed as having been properly awarded within the reasons given by the Taxing Master and upon the law and the facts before her.

5. Order: 15

> Consequently, the award of Ug. Shs. 16,726,000 by the Taxing Master is reduced by Ug. Shs. 6,000,000 to Ug. Shs. 10,726,000/ $=$ only.

No order as to costs.

I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

20<sup>th</sup> June 2023