Ishanga v Bitahwa (Civil Reference 16 of 2003) [2003] UGCA 14 (11 April 2003)

Full Case Text

![](_page_0_Picture_0.jpeg)

# 'I'H E ITEPLIBLIC] OI.' U(;ANDA

### IN THE COURT OF UGANDA AT KAMPALA

## CORAM: HON. MR. JUSTICE A. TWINOMUJUNI, JA (SINGLE JUDGtr)

## CIVIL REFERENCE NO. I6 OF 200.3

#### APPELLANT rs ISHANGA NDYANABO LONGINO

# VERSUS

#### BITAHWA NYINE SAMSON .. RESPONDENT

#### (Reference to a single Justice of Appeal against the decision of the Taxing Master dated 231112003 in Election Petition No.lJ of 2002)

#### l\_5

2.0

# RULING:

30 This is a reference from the decision of the Taxing Master of this court in which he awarded instruction t'ees of shs.6,000,0007: (six million) to a successful respondent (now appellant) in an election petition appeal.

The briefbackground to the reference is as follorvs: -

The appellant and the respondent contested the Chairmanship in Busenyi District held early 2002. election for L. C.5 The appellant was i5

declared the winner. The respondent filed an election petition against the appellant in the High Court in Mbarara. The Electoral Commission successfully applied to be joined as a co-respondent to the petition. At the hearing of the petition, the appellant raised two preliminary objections: -

- (a)That one of the advocates who filed the petition on behalf of the respondent had no practicing certificate. - (b)That the petition was time barred.

- The High Coun ruled against the first objection but uphetd the second objection and dismissed the petition with costs to the appellant. The respondent then appealed to this court against the appellant without including the Electoral Commission which had been a co-respondent in the High Court. The appellant filed a cross appeal in the matter in which they were ovemrled in the High Court. At the hearing of the appeal counsel for the appellant raised an oral objection against the conrpetency of the appeal on the grounds that the Electoral Commission should have been made a party on appeal. This objection was upheld and the appeal was dismissed. The appellant filed a bill of costs which included a claim of shs.30,000,000/: (thirty million only) as instruction fees to which counsel for the respondent objected. The Taxing Master reduced that amount to shs.6,000,000/: (six million only), hence this reference. The Memorandum ofReference contains eight grounds: - - 25 l. The learned Taxing Master, misdirected himself and erred in Larv when he constituted himself into the Court of Appeal and proceeded to determine what would have been the result of the cross-appeal.

- 2. The learned Taxing Master misdirected himself in Law when he failed to find that by the time the parties came to court, the applicant's counsel was ready to argue both the appeal and the crossappeal, thus costs for both already incurred. - 3. The learned Taxing Master misdirected and erred in Law when he seemed to find that the research and the authorities thereof not used during the disposal of the appeal should not attract high costs where the appeal was dismissed on technicality.

$5$

$\mathbf{1}$

$25$

- 4. The learned Taxing Master, was in error in that he appears not to have properly perused the list of the applicant's authorities hence basing his decision on a list of only 9 Statutes. - 5. The learned Taxing Master, was in error and seems to have 15 misconceived the relative importance of Election of an LC5 Chairperson vis-à-vis that of a member of Parliament, the former being of high concern to the entire District whereas the later concerned a small part of the District (Constituency). - 6. The learned Taxing Master, was in error and erred in Law when he sought to be guided by the award in the case of AKISOFERI MICHAEL OGOLA VERSUS AKIKA OTHIENO EMMANUEL AND ANOTHER (CA) CIVIL APPEAL NO.18 OF 1999, which award was for work done in the High Court but not in the Court of Appeal.

$\mathfrak{Z}$

- 7. The learned Taxing Master was in error when he failed to substantiate how all the cardinal principles which govern the Taxation of Costs by the Taxing Master applied to the facts of the case before him. - 8. The learned Taxing Master, was in error on the facts and circumstances of the case before him, he made an award that was so low as to amount to a miscarriage of Justice to the application and an inference of a misdirection on Principle.

Before I consider the grounds of this reference, I wish to state the principles which govern the taxation of costs by a Taxing Master, which are now well settled. They are contained in paragraph 9 of Schedule III of the Rules of this court. The principles were explicitly stated in the case of Patrick Makumbi and Another vs. Sole Electricks Civil Application No.11 of 1994 (SC) where Manyindo DCJ, as he then was, stated: -

"The principles governing taxation of costs by a Taxing Master are well settled. First, the instruction fee should cover the Advocates' work, including taking instructions as well as other work necessary for presenting the case for trial or appeal, as the case may be. Second, there is no legal requirement for awarding the appellant a higher brief fee than the respondent, but it would be proper to award the appellant's counsel a slightly higher fee since he or she has the responsibility to advise his or her client to challenge the decision. Third, there is no mathematical

$\varsigma$

$\overline{4}$

or magic formula to be used by the Taxing Master to arrive at a precise figure. Each case has to be decided on its own merit and circumstances. For example, a lengthy or complicated case involving lengthy preparations and research will attract high fees. Fourth, in a variable degree, the amount of the subject matter involved may have a bearing.

Fifth, the Taxing Master had discretion in the matter of taxation but he must exercise the discretion judicially and not whimsically. Sixth, while a successful litigant should be fairly reimbursed the costs he has incurred, the Taxing Master owes it to the public to ensure that costs do not rise above a reasonable level so as to deny the poor access to court. However, the level of remuneration must be such as to attract recruits to the profession. Seventh, so far as practicable there should be consistency in the awards made. See (1) Premchand Raichand vs. Quarry Services of East Africa Ltd, and Others [1972] EA 162. (2) Nalumansi vs. Sulaimani Lule, Civil Application No. 12 of 1992, Supreme Court of Uganda (unreported). (3) Khatijabal Jiwa Hashjam vs. Zanab [1957] EA.255 and Connie Kabanda vs. Kananura Melvin Consulting Engineers, Civil Application No.24/93 Supreme Court, (unreported)."

$10$

$5$

$25$

The principles which govem an appellate court reviewing the decision of a Taxing Master were stated in Bank of Uganda vs. Banko Arabe Espanol Civil Aoolication No.29 of 1999 (SC) rvhere Nlulen ga JSC stated:

"Before consideration those grounds, however, I should reiterate briefly some pertinent principles applicable to review of taxation, such as I am called upon to do in this reference. Counsel woultt do rvell to have them in mind when deciding to make' and/or when framing grounds of, reference. The first is that save in exceptional cases' a judge does not interfere with the assessment of what the taxing officer considers 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 hc should have allowed a higher or lower antount.

Sccontlly, an exct'ption:rl cltse is w herc it is sho\* n expressly or by infercnce that in rtsscssing and arriving at the quantum of the fee allorved, the taring oflficer exercised, or applied, a lvrong principle. In this regard, application on a lvrong principle is capable of being inferrcd from tn :rrvard of rtn llmount. u'hich is manifestll' excessive or ntanifestly low. Thirtlh'. eve n if it is shorvn

Il]

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 allorved rvould cause injustice to one of the parties."

With these principles in mind, I shall now consider the grounds of reference. Mr. Blaze Babigumira, leamed counsel for the appellant argued ground one separately, grounds 2-4 together and grounds 5-8 together. I propose to consider them in that order.

On the first ground of appeal, he submitted that as preparation to argue the appeal in this court, counsel for the appellant, not only prepared to oppose the appeal but also filed a cross appeal and filed forty authorities in support of both the opposition of the appeal and the cross appeal. This was before he came across the authority that helped him to successfully raise the objection that led to the dismissal of the appeal. In his view, preparation of the cross appeal should have been taken into account in assessing instruction fees. However, instead of doing that, the Taxing Master assumed the jurisdiction of the full bench to consider and hold that the cross appeal had no merits and therefore its preparation attracted no costs or fees. In Mr. Babigumira's view, this was a misdirection that let the Taxing Master to award manifestly low instruction fees.

In reply, Mr. Tibesigwa, leamed counsel lor the respondent, submined that in the Bill for taxation there was no reference to the cross appeal and the matter was not argued before the Taxing Master. There was theretbre no li

basis on which the matter could have been considered. Moreover, the fact that an appeal is dismissed does not mean that it has been allowed. In his view, under the law, the cross appeal is still pending before this court and cannot yet attract an award of costs. He did not directly reply to the charge against the Taxing Master that he assumed the jurisdiction of the full bench of the Court of Appeal to hold that the cross appeal had no merits.

I have carefully perused both the Record of Taxation proceedings and the ruling of the Taxing Master. I have found that through the cross appeal is not specifically mentioned in the Bill of Costs, yet it was canvassed before the Taxing Master by both parties and is directly considered in his ruling. The Taxing Master stated: -

"It is not alluded to in ruling of this Court but it was mentioned by counsel for the respondent that another issue which was dealt with in the High Court was whether the proceedings were valid in view of the fact that one of the advocates who acted for the petitioner had no practicing certificate. This issue was decided in favour of the appellant and it is reflected in the respondent's Notice of Cross Appeal filed in this Court on 19/7/2002. In my view the cross appeal was unsustainable and doomed to fail because, as the trial judge found, lack of a practicing certificate by one counsel cannot affect the right of the other counsel who had a practicing certificate to represent the petitioner/appellant. I see no reason why the existence of the cross appeal should affect the

$20$

$5$

$10$

## quantum of instruction fee. In any case it was not dealt with in the ruling of this court."

$5$

With respect, I think this was misdirection by the Taxing Master. It was not within his powers to consider the merits or demerits of the appeal or cross appeal. His jurisdiction was limited to consideration of whether counsel for the appellant did any legitimate work in preparation for the appeal or cross appeal to attract an award of fees or costs. In my judgment, this was a fundamental misdirection which affected the quantum of costs to be awarded to the appellant. The appellant was entitled to file a cross appeal on a matter $10$ that had been ruled against him in the High Court. There is evidence that Notice and grounds of the cross appeal had been filed in this court. Research had been done and a list of forty authorities was filed to oppose the appeal and support the cross appeal. If the learned Taxing Master had not misdirected himself, he would have taken the cross appeal into account in 15 arriving at the quantum of instruction fee. This grounds of reference therefore succeeds.

On grounds 2-4 Mr. Babigumira submitted an argument related to his argument on ground one above to the effect that the Taxing Master 20 misdirected himself when he failed to hold that by the time parties came to court, the appellants counsel was ready to argue both the appeal and the cross appeal. He also misdirected himself when he held that research and authorities not used in court to argue the appeal should not attract costs where the appeal is dismissed on a technicality. Mr. Babigumira's last 25 argument on this was that the Taxing Master failed to peruse all the authorities of the appellant and relied only on Nine of them whereas he had

submitted forty authorities. Suleman and Others vs. He relied on the case ol Abdu lrcheman Ha ii I} hud ulali Kh rctshi I Iansra i lntl Anotltcr tl964l EA ,17 to support the proposition that all work prepared but not necessarily used in couft attracts costs.

Mr. Tibesigwa repeated his argument to the effect that the cross appeal is still pending in this court and it would have been premature for the Taxing Master to consider costs in respect ofpreparations to argue the cross appeal.

o l0 I wish to re-iterate here that when this court upheld the appellant's technical objection, and dismissed the appeal, this had the effect of disposing of the entire suit. It is therefore not correct to say that the counterclaim is still pending in this coun. It was part and parcel of the appeal. Therefore all work which was legitimately done in preparation of the appeal and the crossappeal attracts costs. The rules of this court are very clear on this matter. paragraph 9(3) ofSchedule III ofthe Rules states: l5

> "The sum allowed under sub-paragraph (2) shall include all the work necessarilv and properlv done in connection rvith the anneal and not otherrr'isc cha r(,eable. in clutlin attendancets. correspondence rrerusa ls and co nsu Iting authoritics" [Emphasis supplied]

The Taxing Master therefore erred to hold otherrvise Grounds 2, 3 and 4 also 25 must succeed.

On grounds 5-8 Mr. Babigumira made a number of arguments. First, that the Taxing Master failed to take into account "... the nature, importance and difficulty the interest of the parties.'... And all other relevant circumstances," as required by paragraph 9(2) ofschedule III ofthe Rules of this court.

Secondly, that in an effort to be consistent, the Taxing Master relied on cases such as A. M. Osoola vs, Akika Othieno and other cases which related to work done in the High Court and not in the Court ol Appeal as the instant case. As a result, he awarded an atnount which rvas rnanifestly low. Thirdly, that the Taxing Master failed to address the elements in paragraph 9(2) this court individually and to demonstrate how they each affected the award of instruction fee that he made.

In reply, Mr. Tibesigwa submitted the learned Taxing Ivlaster had considered all these matters and took all the relevant tactors into account in arriving at the award of shs.6,000,0997= (six million only) as instruction fees. t5

:0 I have carefully considered the arguments raised by both counsel on these grounds of appeal. I have found that the Taxing Master considered all of them. I agree with Mr. Tibesigwa. They could not have influenced the quantum of costs he awarded otherwise. I am not convinced that there is a legitimate reason for me to interfere with his findings on matters raised in these grounds ofappeal. I would hold that grounds 5, 6, 7 and 8 fail'

l\_i

Finally, I now consider the effect of my findings on grounds 1-4 on the quantum of costs to be awarded. I have held that the Taxing Master totally ignored the fact:

- (a) That the order of dismissal of the appeal by the Court of Appeal finally disposed of the appeal. - (b) That all preparations to argue the appeal and the cross appeal attracted professional fees. - (c) That the fact that some of the work which was prepared was eventually not used, made no difference.

If he had taken this into account, he would have awarded more than he did. This being an Election Petition, of significant national importance and very important to the careers of both parties, and taking into consideration all the principles stated in the Makumbi Case (supra) and Bank of Uganda Case (supra) I would award shs.11,000,000/= (Eleven million only) to the appellant, with the costs of taxation before the Taxing Master and before me.

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

20 Amos Ewinomujuni JUSTICE OF APPEAL.

$5$