Kiggundu T/a Sebbowa and Company Advocates v Lutaaya (Misc Cause 109 of 2021) [2023] UGHCLD 175 (5 July 2023)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF. UGANDA AT KAMPALA (LAND DTVTSTON)

## MISCELLANEOUS CAUSENo. 1O9 of2O2L

## JASON NJERU KIGGUNDU T/A SEBBOWA & CO. ADVOCATES ==== ======= ==== ======= ========= ===== ====== APPLICANT VERSUS

DICK LUTAAYA RESPONDENT

### BEFORE: HON. JUSTICE FLAVIA NASSUNA

#### RULING

## Introduction:

- 1. This application was brought under the provisions of S.57,58 and 6O of the Advocates Act, Rules 10,48 & 57 of the Advocates (Remuneration &Taxation of costs) Rules, plus O.52 r 1,2,&,3 of the Civil Procedure Rules together with S. 987 of the Civil Procedure Act. It was seeking for orders that; a. The applicant be granted leave to tax the Advocate-Client bill of costs, - b. Costs of the Application be provided for. - 2. It was brought by notice of motion which was supported by an affidavit sworn by one Jason Njeru Kiggundu. The grounds of the application were laid in the notice of motion and affidavit in support. Briefly the grounds were that; - a) the applicant was at all material times duly instructed by the respondent; Engineer Dick Lutaaya, to execute several instructions pertaining to the renewal of a lease in regard

to land comprised in LRV 3251/25 Volume KCCA 537 Folio 1 Plot 33 - 35 Windsor Crescent.

- b) the applicant diligently performed and carried out the instructions to renew the lease for the land in question, and the lease was extended and a certificate of title issued. - c) the applicant paid the necessary statutory dues and taxes required by the Lessor. - d) the applicant paid for the approval plans that had not been authorized by the Lessor. - e) the applicant applied for and obtained a consent to sell and or mortgage the property that led to the sale by the respondent to Meera Investments Ltd. - f) the respondent was well aware that the applicant executed the work for a fee as a professional service. - g) in spite of several demands, the respondent ignored or neglected and or failed to fully pay the Applicant's professional fees. - h) The respondent was given 30 days' notice to clear the applicant's bitl of costs but ignored the same. - 3. The Respondent filed an affidavit in reply to this application by which he called upon the court to dismiss this application with costs. Briefly he maintained that; - a) The respondent had never instructed the applicant to renew his lease at all. - b) at all times the respondent was a lease holder for land comprised in Plot 33 - 35 Windsor Crescent Road, Kololo.

- c) sometime in 2014, the respondent personally applied for a lease extension on the said property to enable him complete the developments on the land. - d) On the 25th day of September, 2014, he was granted a lease extension for a period of 20 years from the period running 1"t March 2OO9 vide Kampala District Land Board minute no. KDLB.25l4.7l2014. - e) the respondent personally made the necessary payments in 2015. - f) That the respondent was in no way required to inform the applicant about his intention to, and eventual sa-le of the property. - i) the applicant is not entitled to the fees claimed. - j) That the respondent has never been served with any signed demand letter and bill of costs by the Applicant prior to this suit. - k)That this Application should not be granted since there was never an advocate-client relationship at a-ll between him and the Applicant in regard to this matter. - 4. The Applicant, filed written submissions which I have carefully studied together with the pleadings and record of proceedings. I need not reproduce the submissions here since they are on the court record. - 5. The issue to be decided by court is whether this application meets the legal requirements for the grant of leave to tax the advocate - client bill of costs.

## 6. Decision of Court

In applications of this nature, the Applicant has to satisfy court on a balance of probabilities that there existed an Advocate-client relationship (by way of express or implied instructions to the Advocate), that services were rendered, that a signed bill of costs was served on the client (section 57 of the Advocates Act), that a period of 30 (thirty) days has lapsed without the Advocate and client agreeing to or paying the suggested amount (section 58 of the Advocates Act).

In the case of Ondoma Sammuel t/a Alaka & Co. Advocates v. Kana Richard; Miscellaneous Civil Application No. 16 of 2O18, it was held that "Ad,aocate / client costs are the costs that qn adaocate claims from his oun client and uthich the adaocate is entitled. to recoaer Jrom a clientt Jor professional seruices rendered to and disbursements made on behalf of the client. These costs are pagable bg the client uthateuer the outcome of the mqtterfor uthichthe adoocates'seruices were engaged and are not dependent upon ang award o3[ costs bg the cottrt..."

It is therefore pertinent for me to consider whether an advocate client relationship existed in the case before me. The existence of an Advocate-client relationship is premised on the issuance of instructions from a client. These instructions can be either through an agreement (See Peter Jogo Tabu & Co. Advocates v. Waco Fred; Miscellaneous Civil Application No. 30 of 2OO9) or they can be implied through a client's acquiescence to the Advocate's representation as per the decision in M/s Kigozi

Sempala Mukasa Obonyo (KSMO) Advocates v. Isaac Sentongo (supra) as was cited by Counsel for the Applicant.

In the instant case, Counsel for the Applicant submitted that he received instructions from the Respondent to renew the lease for land comprised in LRV 3251125 Volume KCCA 537 Folio 1 Plot 33 - 35 Windsor Crescent.

However, no letter of instructions or email to that effect was attached. The court therefore had to look at the documents attached to the pleadings to see whether it can be inferred that the Advocate was instructed and actually carried out the purported instructions of a lease renewa-l.

The Applicant attached a copy of an undated and incomplete lease agreement between one Dick Lutaaya and the District Land Board as Annexure "B" to his Affidavit in support of this Application.

This agreement shows that it was drawn by "The Government Conveyancer, Office of titles" and the applicant merely signed as a witness. In my view merely witnessing an agreement is not sufficient proof that the applicant had instructions to handle the lease renewal. Apparently the applicant is not merely asking for fees to witness the agreement but for performing the entire transaction for lease renewal.

The applicant also claimed that he handled all the payments in regard to the lease renewal as indicated in paragraph 5 of his alfidavit in support of this application and also attached an Internal Memo as Annexure "C". This memo was a communication within Kampala District Land Board indicating that Mr. Dick Lutaaya the respondent) had paid all the necessar5r fees for the

lease renewal save for the stamp duty. The memo did not in any way show that it was the applicant who effected the payments referred to.

Section iO1 of the Evidence Act provides that a party who seeks to rely on a particular set of facts must prove them. The internal memo does not in anyway show how the Applicant handled the payments in regard to the lease renewal.

On the other hand, the respondent in his Affidavit in reply attached bank statements as Annexure "B" indicating a transfer of Ugx. LL,627,2OOI- (Uganda Shillings Eleven Million Six Hundred Twenty-Seven Thousand Two Hundred Only) from his personal bank account in Stanbic Bank to Kampa-la Capital City Authority as ground rent arrears for land at Windsor Cresent. This is proof that the payments were actually not handled by the applicant but by the Respondent himself.

The Applicant therefore failed to prove on a balance of probabilities that there existed an Advocate-client relationship between himself and the Respondent.

I must a-lso note that the bill of costs attached to the instant application, which the applicant wished leave of court to tax indicated several items which included; -attending court for two hours-, drawing application for execution, - and making copies of application for execution. However, there is nothing on record to show that process of renewal for the lease in issue was ever taken to court. I therefore failed to appreciate why and how the applicant could claim for these payments in the instant application.

The applicant has therefore failed to show that there was any advocate client relationship or that he ever received any

instructions from the applicant to renew the lease referred to or that he indeed performed the said instructions.

This application therefore hereby fails and is accordingly dismissed with costs to the respondent.

Dated at Kampala this day of 2023.

FffiATovu

Judge.