Kwesiga v Mugisha (HCT-01-LD-MA 30 of 2021) [2024] UGHC 747 (16 August 2024)

## **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

### 3 **HCT – 01 – LD – MA – 0030 OF 2021**

### **(ARISING FROM HCT – LD - TA – NO. 39 OF 2023)**

#### **(ARISING FROM HCT – MA – 025 - 2020 AND MA. 065 OF 2019)**

## 6 **(ARISING FROM HCT – CV – CS – 0043 OF 2016)**

## **KWESIGA JAMES ::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

## **VERSUS**

## 9 **MUGISHA ROBERT ::::::::::::::::::::::::::::::::::::::::::: RESPONDENT Corum: HON. JUSTICE VINCENT WAGONA**

**Delivered on: 16th August 2024.**

- 12 *Summary: Civil Procedure - Taxation of Costs:- The requirement to organized and counduct a pre-taxation meeting is discretionary and not a mandatory requirement with the effect of causing a regular award of court to be set aside.* - 15 *Taxation of a bill of costs where parties are represented by Advocates must be conducted in strict compliance with the Advocates (Remuneration and Costs) Regulation as amended in 2018 and where the rules give the taxaing master to* - 18 *award a given amount for a specific item, the award should in accordance with the principles of taxation of costs.*

## *\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_* 21 *RULING*

*\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_* This ruling determines the appeal against the decision of HW Matenga Dawa Francis

- 24 in Taxation Application No. 039 of 2023 where the Respondent was awarded a taxed sum of shs 4,168,000/=. The appellant seeks to have the said award set aside or reduced and costs of taking out the application. - 27 The grounds upon which this application is premised are contained in the Notice of Motion and the supporting affidavit of Mr. Kwesiga James (the applicant) which are:


- 1. That the bill was taxed before conducting a pre-taxation meeting which is mandatory under the Remuneration Rules. - 3 2. That the amount awarded as instruction fees of shs 1.500,000/= was harsh, excessive and inconsistent with the principles of taxation. - 3. That the amounts awarded under items 1, 3, 5, 7, 9, 11, 12, 16, 19, 20, 28, 29, - 6 30 33, 35, 38, 40, 41 and 42 are contrary to the Advocates (Remuneration and Taxation) of costs Rules S.1. 7 of 2018. - 4. That the bill was taxed in the absence of his lawyer which was unfair. - 9 5. That it is in the interests of justice that the appeal is allowed.

The application was opposed by the Respondent who contended that;

- 1. That the pre-taxation meeting was frustrated by the appellant and his lawyer - 12 who were not co-operative. - 2. That the taxation was conducted in accordance with the rules and it is in the interest of justice that the appeal is dismissed with costs.

## 15 **Representation and Hearing:**

**Mr. Kyarisiima Brian** appeared for the appellant while **Mr. Bwiruka Richard** for the Respondent. Both counsel addressed me by way of written submissions which I 18 have duly take into account.

## **Issues:**

I find two issues at the heart of this appeal being;

21 **1. Whether the failure to conduct a pre-taxation meeting rendered the award in Taxation Application No. 38 of 2023 a nullity.**


**2. Whether the awards contested by the appellant are in accordance with the Advocates (Remuneration and Taxation of Costs) Regulations as** 3 **amended by statutory instrument no. 7 of 2018.**

**Issue No. 1: Whether the failure to conduct a pre-taxation meeting rendered the award in Taxation Application No. 38 of 2023 a nullity.**

- 6 It was contended by learned counsel for the appellant that regulation 13A of the Advocates (Remuneration and Taxation of Costs) Regulations makes a pre-taxation meeting mandatory. That the regulations use the verb *"shall"* meaning its mandatory - 9 and the consequences of none compliance renders the award irregular and liable to be set aside. That this was emphasized in *Omakenyi Silver v Osekeny Alex Micheal, Taxation Appeal No. 0044 of 2022* where court observed that; "…..*I would find* - 12 *that in the absence of a record or agreement on pre-taxation is an irregularity which warrants setting aside the taxed bill of costs*…". That in this case, a pretaxation meeting was not conducted and thus renders the whole taxation process 15 irregular and liable to be set aside.

In reply Mr. Bwiruka countered the arguments of Mr. Kyarisiima and contended that under Regulations 13A, if a party refuses to participate in a pre-taxation meeting,

18 the Taxing officer has the discretion to proceed with the taxation. That in this case the appellant refused to participate in the pre-taxation meeting and court proceeded to consider the bill.

### 21 **Consideration by Court:**

**Issue one: Whether the failure to conduct a pre-taxation meeting rendered the award in Taxation Application No. 38 of 2023 a nullity.**


The principal contestation by the learned counsel for the appellant is that regulation 13A of the Advocates (Remuneration and Taxation of Costs) Regulations 2018 as 3 amended make a pre-taxation meeting mandatory and the failure to do so renders the taxation irregular with the consequential effect of being set aside. The said regulation provides that:

### 6 *"13A. Pre-taxation meeting of advocates or parties;*

- *(1) The advocates for the respective parties or the parties themselves, if unrepresented, shall jointly identify the costs, fees and expenses on* 9 *which they agree, if any, before the taxation of a bill of costs.* - *(2) For every taxation, the taxing officer shall record the costs, fees and* 12 *expenses that are identified in sub-regulation (1) if any, and then proceed to tax the costs, fees and expenses on which there is no agreement, if any."* - 15

My considered view drawn from the reading of the above regulation is that a pretaxation meeting or hearing is one of the procedural requirements to be followed in 18 taxation of costs. Therefore, parties or the advocates are required to comply with the said procedure before a bill is considered by the taxation officer. (See: **Walakira Jacob v Nakalanzi Rose, High Court Taxation Appeal No. 02 of 2019).** That 21 being the case, the fundamental question is – what is the effect of none compliance with the said procedure on the award made by the taxing officer?

The regulation uses the verb **"shall"** implying literally that it is a mandatory 24 requirement with the effect that none compliance renders the award irregular or illegal. However, the regulation does not provide consequences for none compliance


with the said procedure. Therefore, recourse should be made to the interpretation of such verb in legislative drafting or statutes. The rules to consider in examining the

3 efficacy of such a verb were laid down by the supreme court in **Supreme Court Election Appeal No. 26 of 2007, SitenbaSebalu v Sam K. Njuba & Anor** where court considered Rule 6(1) of the Parliamentary Election Petition rules which was to 6 the effect that a notice of presentation of the petition was to be served within 7 days and the rules used the verb 'shall' and court guided thus:

*"The Act does not provide for the consequences of failure to comply with* 9 *the provision. It is for the court, therefore, to determine if the legislature intended the provision to be mandatory, in which case failure to comply with the provision would render the petition null and void; or if the provision is* 12 *directory, in which case non-compliance would only be an irregularity that may be curable, for example by extension of time for special circumstances…..*

15 *The courts have overtime endeavoured, not without difficulty, to develop some guidelines for ascertaining the intention of the legislature in legislation that is drawn in imperative terms. One such endeavour, from* 18 *which the courts in Uganda have often derived guidance is in the case of The Secretary of State for Trade and Industry vs. Langridge (1991) 3 All ER 591, in which the English Court of Appeal approved a set of guidelines that are discussed in Smith's Judicial Review of Administrative Action 4 th* 21 *Ed.1980, where at p.142 the learned author opines that the court must formulate its criteria for determining whether the procedural rules are to be* 24 *regarded as mandatory or as directory notwithstanding that judges often*


*stress the impracticability of specifying exact rules for categorizing the provisions. The learned author then states –*

3 *"The whole scope and purpose of enactment must be considered and one must assess the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be* 6 *secured by the Act. In assessing the importance of the provision, particular regard may be had to its significance as a protection of individual rights, the relative value that is normally attached to the rights* 9 *that may be adversely affected by the decision and the importance of the procedural requirement in the overall administrative scheme established by the statute. Although nullification is the natural and usual* 12 *consequence of disobedience, breach of procedural or formal rules is likely to be treated as a mere irregularity if the departure from the terms of the Act is of a trivial nature or if no substantial prejudice has been* 15 *suffered by those for whose benefit the requirements were introduced or if serious public inconvenience would be caused by holding them to be mandatory or if the court is for any reason disinclined to interfere with* 18 *the act or decision that is impugned."*(Emphasis is added)*."*

The supreme court also cited with approval the postulates by Lord Steyn in 21 *Regina vs. Soneji and another*[2005] UKHL 49 (HL Publications on Internet) where it was noted that; –

24 *"Having reviewed the issue in some detail I am in respectful agreement with the Australian High Court that the rigid mandatory and directory distinction, and its many artificial refinements, have outlived their* 27 *usefulness. Instead, as held in Attorney General's Reference (No.3 of 1999),*


# *the emphasis ought to be on the consequences of non-compliance, and posing the question whether Parliament can be fairly taken to have intended* 3 *total invalidity."*

The Court also adopted the view expressed in the Australian High Court case of

- 6 *Project Blue Sky Inc. vs. Australian Broadcasting Authority* (1998) 194 CLR 355, where, after referring to the mandatory and directory classification of statutory provisions as outmoded, that court said – - 9 *"… a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory, and if* 12 *directory, whether there has been substantial compliance. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be* 15 *invalid….. In determining the question of purpose, regard must be had to the language of the relevant and the scope and object of the whole statute."*

Therefore, the overall consideration is that court examines (a) the whole statute and the object/purpose of the statute, (b) the consequences of such failure or none 21 compliance, (c) the likely injustice or prejudice it shall occasion to the opposite party, (d) the inconvenience that the public would face if such is treated as a mandatory requirement among other considerations.

24 In the present case, I have considered Regulation 13A and the entire remunerations rules and found that the purpose of a pre-taxation meeting was to ensure that the exercise is participatory and save court's time. It was intended to ease taxation by

 giving parties an opportunity to sit, discuss and agree on sums which are within the rules and where they fail to agree, then court would only consider items which are

3 contested by the parties.

It is my view that Regulation 13A did not take away the powers of the taxing officer to consider a bill of costs in relation to other provisions of the remuneration rules. I 6 therefore subscribe to the school of thought that the failure to conduct a pre-taxation meeting is an irregularity curable under Article 126(2)(e) and not a ground to cause setting aside a regular award by the taxing officer unless it can be sufficiently 9 demonstrated that a party who was genuinely committed to having such a meeting was thereby prejudiced by the failure to conduct a pre-taxation meeting. The broad

12 thus, it did not amend other provisions of the remuneration rules that vested the taxing officer with powers to consider bills of costs filed by the parties. For instance, Rules 54 of the Advocates (Remuneration and Taxation of Costs) Regulations

objective of the rules committee was not to make such a mandatory requirement,

- 15 provides that: *The taxing officer shall have power to proceed to taxation ex parte in default of the appearance of either or both parties or their advocates, and to limit or extend the time for any proceedings before him or her, and for proper cause to* - 18 *adjourn the hearing of any taxation from time to time.*

Therefore, where a party defaults on appearance or where he or she frustrates the taxation, then, even in the absence of any pre-taxation hearing, the taxing officer has

- 21 the powers to proceed and tax the bill under the said regulation. It is thus my understanding that a pre-taxation hearing/meeting is a procedural requirement which the taxing officer should ensure to follow, before considering the bill, but the absence - 24 of such meeting or where parties frustrate the same, or for other practical reasons the


pre-taxation hearing/meeting cannot be held, court has the powers to proceed and consider the bill in the absence of such pre-taxation hearing.

- 3 I therefore disagree with learned counsel for the appellant that the failure to conduct a pre-taxation meeting has consequences on the award by the taxing officer. In the present case when the bill came for taxation on 1/11/2023, learned counsel for the - 6 applicant indicated that he was never served with the bill and court ordered that he be served in court and the matter was adjourned to 16/11/2023. On 16/11/2023, the current learned counsel for the applicant did not appear and Mr. Bwiruka for the - 9 judgment creditor indicated that a pre-taxation meeting could not be conducted because counsel for the judgment debtor (applicant now) was not co-operative. The applicant was present and informed court that his lawyer was absent and prayed for - 12 an adjournment. The Registrar indicated that he would make a ruling and the matter was adjourned to 19/12/2023. On the said day, the applicant's lawyer was absent and the taxing master proceeded to tax the bill. In the present suit, it is clear that the pre- - 15 taxation meeting was frustrated by the appellant who now wants to use it as a basis to have the award set aside. I therefore find that the failure to conduct a pre-taxation meeting which was frustrated by the appellant cannot be a basis to have the award - 18 set aside. I thus resolve this issue in the negative.

**Issue No 2: Whether the awards contested by the appellant are in accordance with the Advocates (Remuneration and Taxation of Costs) Regulations as** 21 **amended by statutory instrument no. 7 of 2018.**

I will consider this issue in light of the objections made to the bill specifically the items which are contested by the appellant.

24 **Item 1:**


The appellant contested Item 1 regarding instruction fees where an award of shs 1,500,000 was made in favour of the Respondent. Learned counsel contended that 3 remuneration rules talk about 300,000 as the minimum and that the award of shs 1,500,000 was excessive. Mr. Bwiruka, learned counsel for the Respondent contended that the application involved perusing various records and decision of 6 court. That as such the award of shs 1,500,000/= as instruction fees is not excessive or inconsistent with the award in similar applications. That costs should be reasonable and fairly to re-imburse the party and the amount awarded is not excesive.

9 (See: *Makula International Ltd v His Emminence Cardinal Nsubuga& Anor (1982) HCB 11*).

## *Consideration by Court:*

- 12 It is a settled law that save in exceptional cases, a judge should not interfere with the assessment of what the taxing officer considers to be a reasonable fee. Questions which are solely of quantum of costs are matters with which the taxing officer is 15 particularly fitted to deal, and in which he has more experience than the judge. **(***See Bank of Uganda v. Banco ArabeEspanol, S. C. Civil Application No. 23 of 1999 and Thomas James Arthur v. Nyeri Electricity Undertaking, [1961] EA 492).* An 18 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. Application of a wrong principle is capable of being inferred from 21 an award of an amount which is manifestly excessive or manifestly low. **(See Gulu** - **Institute of Health Science versus Bwomu Gerald HCCA No. 163 of 2016).**


Further in **Taxation Appeal No. 003 of 2013,The Administrators of the Estate of the Late Barbara Lakeli Vs. JWB Kiwanuka& 3 others court** gave some 3 persuasive dicta in relation to taxation thus**:**

**"***In this particular case the law granting discretionary power to the taxing master to award costs taking into consideration "all other relevant circumstances" was*

- 6 *repealed. It means in my humble view that the taxing master is restricted now only to apply schedule six of the current regulations and award costs only as set out under those regulations. Nothing more nothing less….. In my view a taxing master cannot* - 9 *award costs less than what is stipulated under the rules. What has to be ascertained therefore is the fee chargeable in contentious matters in High Court under the current rules."* - 12 I have also added to the above in *Centenary Rural Development Bank Ltd v BiiraKhighambo, High Court Tax Appeal No. 027 of 2022* **thus;**

*"It is my understanding that under the current legal framework where parties* 15 *are represented by advocates, the taxing master must conduct the taxation of a bill of costs to the fullest extent possible in compliance with the Advocates (Remuneration and Taxation of Costs) Regulations as amended in 2018. Any* 18 *discretion allowed to the taxing master should be judiciously exercised guided by established taxation principles, case law to ensure awards that are fair, reasonable and proportionate to the expenses incurred by a successful party* 21 *in defending or prosecuting a given suit."*

In *Makumbi and another v Sole Electrics (U) Ltd [1990–1994] 1 EA 306, Justice Manyindo DCJ, JSC* (as he then was) detailed the principles to be followed thus;


*"The principles governing taxation of costs by a Taxing Master are well settled. First, the instruction fee should cover the advocates' work, including* 3 *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* 6 *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 or magic formula to be used by the Taxing* 9 *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. In a fourth,* 12 *variable decree, the amount of the subject matter involved may have a bearing. Fifth, the Taxing Master has discretion in the matter of taxation but he must exercise the discretion judicially and not whimsically. Sixth, while a* 15 *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* 18 *remuneration must be such as to attract recruits to the profession. Seventh, so far as practicable there should be consistency in the awards made.*

The application where the impugned bill of costs arose from was an interlocutory 21 application. It was an application for interim stay which was dismissed by the Assistant Registrar with costs to the Respondent. Therefore, the applicable schedule is the 6th Schedule of the Advocates (Remuneration and Taxation of Costs) 24 Regulations as amended in 2018. Item 9(2) of the said schedule provides that; "*for instructions to make or oppose interlocutory applications under items 1 to 9 in this*


*Schedule, the fees shall be not less than 300,000 shillings."* Therefore, the regulations set the minimum as shs 300,000/= and there is no maximum. Therefore 3 any award in that regard above 300,000/= falls in the discretion of court which must be exercised in accordance with the established principles of taxation.

The current application was filed by Notice of motion and the Respondent only filed 6 an affidavit in reply and written submissions and parties appeared only twice that is, on 12th June 2019 to receive directions and 31st January 2023 to receive the ruling. I therefore find no uniqueness in the current application that could attract an award of 9 shs 1,500,000. I find an award of shs 1,000,000/= sufficient as instruction fees.

## **Items 3, 5, 7, 9, 11, 12, 16, 19, 20, 28, 29, 30 33, 35, 38, 40, 41 and 42:**

I have considered the record of court and the taxed bill of costs. I have found that 12 the awards in items 3, 5, 9, 11 and 12 fall within the confines of the remuneration rules and the amounts awarded therein are provided for under the 6th Schedule of the Remuneration Rules. However, I will tax off item17 since there is no record of court

- 15 to that effect. For item 19, the ruling was delivered on the said date as such the award falls within the 6th schedule. For items 20, 28, 29 and 30, the awards are within the amounts allowed under the 6th Schedule of the Remuneration Rules. Item 32 is taxed - 18 off since there is no record of court to that effect. The rest of the items were taxed in accordance with the Remuneration rules. As regards service, there was effort to serve counsel where he declined service and later he was served at Court. Therefore, the - 21 Respondent was right to claim re-imbursement for the cost incurred in serving him. There are no repetitions as suggested by counsel for the Respondent. I therefore find no issue with the rest of the awards save items 17 and 32 which have been taxed off. - 24 The appeal thus partly therefore succeeds with the following orders:


- **1. That the award in item 1 reduced to shs 1,000,000/=.** - 3 **2. That the awards in items 17 and 32 are hereby taxed off.**

**3. That the award of shs 4,168,000/= is consequently set aside and** t**he** 6 **Respondent is instead awarded a sum of shs 3,518,000/= (Three Million Five Hundred and Eighteen Thousand Shillings as the taxed costs for Misc. Application No. 0065 of 2019.**

- 9 - 4. **Each party shall bear their own costs since the appeal only partly succeeded**. - 12 **I so order**.


Vincent Wagona

15 **High Court Judge FORTPORTAL 16/08/2024**