Ekeu & Another v Attorney General (Civil Reference 6 of 2023) [2024] UGHC 669 (7 May 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT JINJA **CIVIL REFERENCE NO. 006 OF 2023** (ARISING OUT OF TAXATION APPLICATION NO. 051 OF 2023) (ARISING OUT OF CIVIL SUIT NO. 59 OF 2009)

#### 1. EKEU COSMAS

### 2. BENADICT OWOT & 3493 OTHERS ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

# ATTORNEY GENERAL OF UGANDA :::::::::::::::::::::::::::::::::::

## **BEFORE: HON, LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI-**

#### **RULING**

#### **Background**

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This Application is brought under S. 62 of the Advocates Act Cap 267, Regulation 3 of the Advocates (Taxation of Costs) (Appeals and References) Regulations, Sections 96 and 98 of the Civil Procedure Act Cap 71 and Section 33 of the Judicature Act Cap 13 and Order 50 Rules 6 and 8 of the Civil Procedure Rules for orders that: -

- (i) The taxation ruling/orders made by the learned Registrar in Civil Suit No. 59 of 2009 in the High Court of Uganda holden at Jinja dated 31st October 2023 be set aside for being manifestly low, harsh, unjustified and in non-compliance with the established principles of taxation. - (ii) That the taxing master did not exercise her discretion judicially. - (iii) That the bill was not taxed according to the law because the taxing master used the wrong principles basing on old law which was repealed. - (iv) That items in respect of instruction fees (item 1) and items under disbursements including Plaintiff's transport costs, feeding and costs of Auditor General be taxed afresh by the trial judge. - $(v)$ Costs of this reference be provided for.

The Application is supported by an affidavit sworn by Counsel Augustine Ssemakula where in the grounds of the application are set out but are briefly that;

- The taxing master erred in law and fact when she awarded nothing to Ssemakula & $i)$ Co. Advocates in respect of item 1 on instruction fees while basing on the old rules and regulations despite that the Plaint and Court record clearly shows that it is the law firm that got instructions to file the suit. - The taxing officer erred in law and fact when she rejected the items under ii) disbursements in the applicant's bill of costs. - iii) The taxing officer erred in law when she awarded UGX $13,203,000/$ = as the final amount allowed in respect of all the Bill of Costs without any justification and in total disregard of the established principles of taxation.

- It is apparent from the record of this honourable Court and indeed the physical Court $iv$ sessions that almost all the Plaintiffs listed under the Court Representative order attended Court and hence had meals. $v)$ - It is in the interest of justice that the Taxing Officer's award in respect of the aforementioned items be set aside for being in non-compliance with the established principles of taxation.

## **Brief facts.**

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The Applicants were the successful party in Civil Suit No. 59 of 2009 wherein they were awarded terminal benefits amounting to UGX 6,234,463,628/=, general damages of $3,000,000/$ = for each of the 3425 Plaintiffs, interest and costs. The Applicants filed two bills of costs one by Alliance Advocates and the other by Semakula & Co. Advocates where the taxing master/assistant registrar taxed the bills in accordance with the Advocates (Remuneration and Taxation of Costs) Rules S. I 267-4 and allowed instruction fees at $63,532,132/$ = jointly to the two firms. Being dissatisfied, Semakula & Co. Advocates filed this appeal.

### **Representation**

Counsel Kiggundu Vincent appeared for Semakula & Co. Advocates the former Counsel to the Appellants. The Respondent did not appear when the matter came up for hearing and this court gave an Exparte hearing order.

#### **Issues**

1. Whether the Taxation award by the Taxing Master should be set aside.

## **Analysis**

Before I resolve the issues, firstly, I take note that the Respondent filed written submissions on the 22nd day of March 2024 in total disregard to the Exparte order granted by the Court on the $6$ th day of March 2024.

It is a well-settled principle of law that a court order must be obeyed unless and until it has been set aside and varied by the Court. (Chuck Vs Cremer (1836) 1 Coop Temp Cott 338, 47 ER 884, Ocen Kassim Vs Soroti District Land Board & Anor M. A No. 01 of 2019).

With the order to proceed exparte still in existence, counsel for the Respondent was barred from filing submissions, and if he wished to file as he did, he ought to have sought the court's intervention to set aside the order or vary it before filing. It is on that note that I will not consider the Respondent's submission.

Secondly, it is important to note that much as the Judge of the High Court shall have the discretion to interfere with the decision of taxing masters, this discretion has to be based on exceptional circumstances concerning the case.

The circumstances under which a Judge may interfere with the Taxing Master's exercise of discretion in awarding costs were restated by the Supreme Court in Bank of Uganda versus Banco Arabe Espanal, S. C civil application No. 0023 of 1999 to be the following:

"Save in exceptional cases Judges do not interfere with the assessment of what the taxing officers 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 with 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.

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.*

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"

It is the submission of Counsel for the Appellant that the taxing officer failed to adhere to the taxation rules on all the items in the bill rendering the exercise meaningless and yet it had been drawn according to the rules governing taxation. I will now focus on the issues to determine whether there are indeed exceptional circumstances that require my interference in the learned Assistant Registrar's taxation decision.

For a proper analysis of this issue, I will break down the grounds below.

1. The Taxing master erred in law and fact when she awarded nothing to Ssemakula & Co. Advocates in respect of item 1 on instruction fees while basing on the old rules and regulations despite that the Plaint and Court record clearly shows that it is the law firm that got instructions to file the suit.

I have perused the record of proceedings for the taxation of the bill of costs and on page 4, the taxing master noted that;

"Instruction fees for both bills are considered under the 1st item. The two firms will be awarded under that item and not separately as filed in the bills."

It is imperative to note that Ssemakula & Co. Advocates filed the plaint on 24/6/2009 and last appeared in Court as Counsel for the Applicants/plaintiffs on 23/9/2013. The record then shows Alliance Advocates as counsel for Applicants/Plaintiffs.

There are two firms on record representing the Applicants/Plaintiffs at different times. The question then is whether each of them is entitled to separate instruction fees as opposed to the joint fees ordered by the Assistant Registrar ordered joint instruction fees.

It should be noted that when costs are awarded in a judgement, they are awarded to a successful party and not the Advocates that represented clients. Consequently, even when several advocates represent a successful party at different stages in a suit, it is the Advocate who currently possesses instructions from the client that has the right to file a bill of costs that is meant to be paid by the party ordered by the court.

In Luweno & Co. Advocates Vs Trans Africa Assurance Co. Ltd CACA No. 95 of 2004, Court observed that;

"The party paying costs will only pay the instruction fees once in respect of that particular case irrespective of the number of advocates who would have handled the

matter on behalf of the decree holder, unless of course Court by a certificate permits costs for more than one counsel."

I entirely agree with the above holding because a successful party is the one that incurs the costs of hiring an advocate. So, the role played by an advocate is the preparation of a bill of costs that will reflect the true position of the cost the client has incurred since the commencement of the suit. Any advocate who has outstanding monies due to them from the client cannot claim the same from the party ordered by the court to pay costs. Rather, that advocate has to file an advocate client bill of costs to enable him to recover from the client.

In the instant case, I find that the Assistant Registrar/Taxing Master was justified in ruling that instructions fees shall cover both Ssemakula & Co. Advocates and Alliance Advocates. It is unfounded in law to make the judgement debtor pay unjustified excessive costs. It would have been better if the two Advocates had come up with a joint Bill of costs to better show the costs incurred by their client.

## 2. The taxing officer erred in law and fact when she rejected the items under disbursements in the applicant's bill of costs.

Under disbursements, the items in issue were the Plaintiffs' feeding and transport costs and costs of the report which the Auditor General based his assessment on.

On transport and feeding, I agree with the taxing master's reasoning that this being a representative suit, there was no need for all the Plaintiffs to come to Court and if they did as it is in this case, they came at their own free will and should not be disbursed. The disbursements for the transport and feeding should be limited to only what was incurred by their representatives.

On the cost of the Auditor's report compiled by JWIS & Co. Certified Public Accountants, no evidence was adduced to prove the same.

In Aisha Agaba Vs Mable Bakaine Taxation Appeal No. 4 of 2011, it was held that claims for disbursements must be specifically proved.

This can be done by either production of receipts or vouchers. Since the plaintiffs did not adduce evidence of incurring the claim, I concur with the Assistant Registrar/Taxing Master in disallowing the same.

## 3. That the bill was not taxed according to the law because the taxing master used the wrong principles basing on old law which was repealed.

The record of proceedings is clear on page 3 the last paragraph where the Taxing Master noted that.

## "Also since instructions were taken before the amendment of the Act, I will consider the old law in calculating the sum."

This clearly shows that the taxing master considered the old law.

In Total (U) Ltd Vs Rosebell Twinamatsiko CACA No. 29 of 2019, it was held that the new regulations i.e. S. I 7/2018 are applicable to all matters/bill of costs filed in this Court after 2nd March 2018.

This is in tandem with the case of Uganda Bankers (Employers Association Vs National Union of Clerical Commercial Professionals & Technical Employees CACA No. 51 of 1996 where in a similar matter it was held that, Since the order for costs was in the instant case by the trial judge was on 17th August 1995, the taxation ought to have been based on the 1982 remuneration rules and not the 1996 rules."

I see no reason to depart from the above rulings. It is thus my finding that the Taxing Master erred in law when she taxed the bill of costs basing on the Advocates (Remuneration & Taxation of costs) rules S. I 267-4 (old law) instead of the Advocates (Remuneration &Taxation of costs) (Amendment) Regulations of 2018.

The application of a wrong law in the determination of a dispute renders the entire proceedings unfounded in the law and should therefore be set aside.

As a result, the taxation award by the learned Assistant Registrar is hereby set aside.

An order is hereby issued that;

- 1. The bill in Civil Suit No. 051 of 2023 be retaxed before a different Taxing Master. - 2. M/S Semakula & Co. Advocates and Alliance Advocates should come up with a Joint Bill of Costs that shall be taxed. - 3. Each party shall bear their costs.

I so order.

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HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA **JUDGE**

Delivered this 07th day of May 2024