Kutosi v Ajju (Civil Appeal 13 of 2022) [2024] UGCommC 152 (13 May 2024)

# **IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA**

### **(COMMERCIAL DIVISION)**

#### **CIVIL APPEAL NO. 0013 OF 2022**

# **(ARISING FROM CIVIL SUIT NO. 240 OF 2021 IN THE CHIEF MAGISTRATES COURT OF** 10 **NAKAWA AT NAKAWA)**

#### **JIMMY KUTOSI ] APPELLANT**

# **VERSUS**

**AJJU DANIEL ODONGO ] RESPONDENT**

#### **Before: Hon. Justice Ocaya Thomas O. R**

5 **THE REPUBLIC OF UGANDA**

#### **JUDGEMENT**

#### **Introduction:**

The circumstances of this Appeal are that the Respondent sued the Appellant in the Chief Magistrate Court of Nakawa in Nakawa for recovery UGX 19,000,000/= being fees of legal 25 services he rendered to the Appellant.

The Appellant/Defendant raised three preliminary objections in his Defense to wit-

- 1) The Verbal agreement the Plaintiff was relying on is unenforceable for want of legality under sections 48 or 50 and 51 of the Advocates Act, Cap 267, as amended. - 30 2) The Plaintiff has no cause of action against the Defendant. - 3) There was misjoinder of causes of action.

The trial Court directed the parties to file written submissions and later made a ruling dismissing the objections raised by the Defendant hence this Appeal.

- 5 The Appellant disagreed with the findings of the trial of the Magistrate and raised the following grounds of Appeal in his Memorandum of Appeal that- - 1. The trial Magistrate erred in law and fact and misdirected himself when he held that the Respondent had a cause of action against the Appellant. - 2. The learned trial Magistrate erred in law and fact when he overruled the Defendant's 10 preliminary objection that the suit was premature and barred in law.

Consequently, the Appellant prayed that the findings of the trial Magistrate be set aside, the Appeal allowed and the Costs of this Appeal, and the trial suit.

#### 15 **Representation and Submissions:**

The Appellant was represented by the law firm of M/S Barenzi & Co. Advocates whereas the Respondent was represented by the law firm of M/S Birungi, Barata & Associates.

Both parties with leave of court made written submissions. I have considered all the 20 submissions of the parties before coming to the Judgment below, suffice to say that I have not felt the need to reiterate them in their entirety below.

This being a first appeal, this Court is obligated to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming

25 to its conclusion. See **Father Nanensio Begumisa and 3 others V Eric Tiberaga SCCA 17 of 2000**. In the case of conflicting evidence, the appeal Court has to make due allowance for the fact that it has neither seen nor heard the Witnesses, it must weigh the conflicting evidence and draw its own inferences and conclusions. See **Lovinsa Nankya V. Nsibambi [1980] HCB 81**.

The Appellate Court may interfere with a finding of fact if the trial court is shown to have overlooked any material feature in the evidence of the parties. In particular, this Court is not bound necessarily to follow the trial Magistrate's findings of fact if it appears either that she has clearly failed on some point to take account of particular circumstances of probabilities

35 materially to estimate the evidences adduced.

#### 5 **Ground One:**

*That the trial Magistrate erred in law and fact and misdirected himself when he held that the Respondent had a cause of action against the Appellant.*

Appellant submitted that for an advocate to file a suit for recovery of professional fees, such 10 a suit must arise either from a valid remuneration agreement between the advocate and the client or from an advocate-client Bill of Costs delivered and taxed in accordance with the law. That according to the Respondent/Plaintiff, he was contracted by the Appellant/Defendant to represent him in a matter where the Appellant/Defendant had a claim against him in a fatal accident which is a contentious matter that is to be instituted in 15 court and remuneration for such contentious matters falls under Section 50 of the Advocates.

Appellant goes on to cite Section 1(c) of the Advocates Act to define contentious business to mean any business done by an advocate in any court, civil or military, or relating to 20 proceedings instituted or intended to be instituted in any such court, or any statutory tribunal or before any arbitrator or panel of arbitrators.

Counsel further submitted that for remuneration agreements under section 48 and section 50 of the Advocates Act to be valid it must conform to the special requirements of Section 25 51(1) which is couched in mandatory terms that –

- (1) An agreement under section 48 or 50 shall— - (a) be in writing; - (b) be signed by the person to be bound by it; and - (c) contain a certificate signed by a notary public (other than a notary public 30 who is a party to the agreement) to the effect that the person bound by the agreement had explained to him or her the nature of the agreement and appeared to understand the agreement. A copy of the certificate shall be sent to the secretary of the Law Council by prepaid registered post.


5 Counsel submitted that the Respondent/Plaintiff did not in his Pleadings state that he followed the procedure in Section 51(1) above and did not serve the Appellant with an itemized bill of cost under section 57.

That the learned trial magistrate erred in law when he decided that Section 51 of the 10 Advocates Act was an option that advocates could choose to follow, that the mandatory language used by the drafters intended to make the remuneration agreement a must to be in writing which the learned trial Magistrate ignored.

Further that in the absence of an agreement like in the instant case, if a dispute arises 15 between an advocate and a client regarding the fees payable, such costs have to be taxed in accordance with the Advocates Remuneration and Taxation of Costs (Amendment) Regulations 2018. That however, the client is provided with special protection under the taxation process. In such a case, no suit can be commenced to recover any costs due to the advocate until one month after a bill of costs due to the advocate until one month after a bill 20 of costs has been delivered in accordance with the requirements of Section 57 of the

Advocates Act. Counsel cited Peter Jogo Tabu & Co. Advocates V. Waco Fred Miscellaneous Civil Application No. 30 of 2009.

The Respondent submitted that the spirit of Section 57 envisaged the parties having no 25 agreement for work done. The advocates would present to Court his advocate-client bill of costs for work done and the client would have the chance to challenge the amounts due to the Advocate which would be the result of such taxation.

That the facts this case are distinguishable and would not fall under Section 57 of the 30 Advocates Act. That at the point the parties regularized their payment terms, the Respondent had already had already carried out the assignments. The remuneration due to the Respondent was agreed to by both parties and part payment was made by the Appellant. The suit filed in the lower court was for recovery of the outstanding balance which was not subject to taxation by the Taxing Master as it was already ascertained, known and was agreed

35 to both parties.

5 That considering the Appellant made part payment on the agreement, he could not then term around to deem it illegal. This is a case classic case of Quantum Meruit.

Counsel quoted Black's Law Dictionary, 8th Edition Page 1276 which defines Quantum Meruit as A claim or right of action for the reasonable value of goods or services rendered. Counsel

10 further cited M/S Sendenge Senyondo & Co. Advocates V Kampala Capital City Authority C. S No. 147 of 2016, that the underlying principle is that a person who has accepted goods and services should not be allowed to enrich himself or herself at the expense of the supplier of the goods or services. The consumer of the goods or services would have gotten services or taken the goods from the supplier and then after raise the question of enforceability of the 15 contract.

Counsel further submitted that the spirit of Section 48, 50 and 51 of the Advocates Act was in cases where the fees due to the advocates are not ascertainable and as such taxation would help the parties confirm the figures due thus inapplicable in the instant case and as such non-20 payment of the same is under the ambit of breach of contract.

The Appellant reiterated the earlier submissions in his rejoinder and maintains argument that a suit for recovery of professional fees must arise from a valid remuneration agreement between the advocate and the client.

It is not in contest that the Respondent did provide legal services to the Appellant, who paid monies for the services whether in full as he claims or part of as the Respondent claims, either claim is not the subject of this Appeal but the legality of the transaction is.

- 30 Section 48(1) provides that Notwithstanding any rules as to remuneration for the time being in force, an advocate and his or her client may, either before or after or in the course of the transaction of any non-contentious business by the advocate, make an agreement as to the remuneration of the advocate in respect of that transaction. - 35 The reading of the above provision is specific to non-contentious matters, the Appellant did cite the definition of contentious matters as under section 1 of the Advocates Act which will


5 make the definition of non-contentious to be the opposite of that as defined in section 1 which for all purposes and intent is that business or matter done by an advocate in any nonjudicial or quasi-judicial setting whether civil or military or any statutory tribunal.

The Appellant severally in his submission stated that the legal services obtained were for a 10 contentious matter which admission in itself disqualifies the input of section 48 which the Appellant is relying on.

The right section for the nature of the business or matter in this case which is a contentious matter is section 50(1) provides that -

- 15 *Notwithstanding any rules for the time being in force, an advocate may make an agreement with his or her client as to his or her remuneration in respect of any contentious business done or to be done by him or her providing that he or she shall be remunerated either by a gross sum or by salary.* - 20 The trial Magistrate in his ruling stated that Section 48 and 50 deal with situations where the parties choose to make their own agreement as to remuneration notwithstanding the rules for reimbursement of an Advocate in force. In other words, parties are at liberty to choose what form of contract they want to enter into and under which law they want to be governed. The trial magistrate relied on the Judgement of Honorable Justice Christopher Madrama - 25 Izama *(as he then was)* in M/S Sendege Senyondo & Co. Advocates V KCCA, C. S No. 147 of 2017.

And further following the decision of the Honorable Judge, that just like in the instant case, Section 51 is inapplicable to the verbal agreement for the foregoing reasons.

The effect of section 51 comes from the assumption that the Advocate and the client entered into an agreement. The said agreement entered into should be per conditions outlined therein.

5 Section 51 provides that "An agreement under section 48 or 50 shall...". This makes it mandatory, to which I agree with the Appellant in so far as it is a mandatory requirement however the wordings in Section 48 and 50 makes it optional from the wordings of-*Notwithstanding any rules as to remuneration for the time being in force, an advocate and his or her client may*…. forSection 48 (1) and *notwithstanding any rules for the time being in force,*

10 *an advocate may make an agreement*…for Section 50(1).

It appears that the intention of the drafters was one, to make the agreement optional with the usage of the verb may as opposed to any other total compliance requiring wording which does not make it mandatory but rather a matter of good practice, if you have it.

Secondly, the drafters intend the option of having the agreement in writing to be in regard to remuneration which basically deals with the issue of fees.

From the foregoing and a joint reading of Section 51, Section 48(1) and Section 50(1), the 20 basic Golden rule interpretation of them is that in the event the Advocate opts to make an agreement for remuneration with the client, such an agreement has to be in writing, be signed by the person to be bound by it and contain a certificate signed by a notary public; A copy of the certificate shall be sent to the Secretary of the Law Council by prepaid registered post. Failure to adhere to such an agreement is deemed unenforceable.

Therefore, it is not entirely true that all agreements for legal services must as a mandatory requirement, be in writing and be subjected to the requirement of section 51(1). Instructions can be made in writing by way of a notice or can be made by way of entering on record of a court or quasi-judicial tribunal; when it is a contentious matter such as the one the services

30 were rendered for as claimed by the Appellant in this instant.

I am inclined to agree with the finding of the trial magistrate as he did with the finding of the Honorable Justice Christopher Madarama Izama *(as he then was)* in M/S Sendege Senyondo & Co. Advocates V KCCA, (Supra) on the applicability of Section 51 on agreements that do not

35 fall under Section 48 and 50.

5 As cited by the Appellant, in the Court of Appeal in Kapeka Coffee Works Ltd V NPART CACA No.3 of 2000, the Court held that in determining whether a plaint discloses a cause of action, the court must look only at the plaint and its annexures if any and nowhere else.

With the foregoing and the finding, that there was provision of a service and benefit of a 10 service, with Defendant in his written statement of Defense contending that, he already paid the Plaintiff in installments to the full amount of the remuneration fees agreed on and does not owe the Plaintiff any money. It is only right and fair that the matter be heard on its merit and each party is put to prove their allegations.

15 I find that there is a cause of action and this ground of appeal fails.

## **Ground 2: The learned trial Magistrate erred in law and fact when he overruled the Defendant's preliminary objection that the suit was premature and barred in law.**

This particular ground is couched on the argument that there was no enforceable contract

20 between the Plaintiff/Respondent and the Appellant/Defendant as envisioned under section 51(1) of the Advocates Act.

Basing on the findings in-ground one above, I am inclined to entirely agree with the trial magistrate in incorporating the Contracts Act, 2010 as he stated that-

- 25 **"I would opine that this is a case where the provisions of the Contracts Act, 2010 particularly section 10(2) which is to the effect that a contract may either be "oral" or "in writing" come into play. I am also mindful of subsection 5 of the Contracts Act which requires a contract whose subject matter exceeds twenty-five currency points to be in writing. However, higher courts have also held, which I am compelled to follow** - 30 **and be bound, that the use of "shall" without any penalty is merely directory and not mandatory." See** Finishing Touches Ltd V Attorney General HCCS N0. 144 of 2010.

The Trial Magistrate went on to add that-

**"It would be unfair for the parties to agree and after the Defendant having received**

35 **the legal services rendered to him, enjoyed the same and only raises the question of illegality of contract. Would this be to avoid liability to pay for such services? Who**


## 5 **then has not played their part of the bargain? It is my considered view that these questions can only be answered upon a full trial of civil suit No. 240 of 2021."**

I cannot agree more with the Trial Magistrate's findings. The question of incomplete obligations if any, can be answered by the trial court and in the event of any professional

10 misconduct or short comings, the law council is entitled to handle that.

Therefore, I find that the Trial Magistrate properly decided the issues raised in this ground and as such this ground fails.

#### 15 **In Conclusion**

As I have held above, all grounds of appeal are without merit. I accordingly dismiss the Appeal.

Having done so it follows that Costs follow the event and the Respondent is awarded the costs

#### 20 of the Appeal. **Section 27 of the Civil Procedure Act.**

I accordingly uphold the decision and orders of the Trial Magistrate as they are.

I so order.

| 13th<br>Delivered electronically this__________ day of ____________________________2024 and uploaded on | May | | |---------------------------------------------------------------------------------------------------------|-----|--| | ECCMIS. | | |

**Ocaya Thomas O. R Judge,**

**13th May 2024**