Magellan Kazibwe & Co. Advocates v R.L Jain Limited (Miscellaneous Cause 27 of 2023) [2024] UGCommC 308 (27 August 2024)

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISC. CAUSE NO.0027 OF 2023 (ARISING FROM HCCS NO.215 OF 2016) MAGELLAN KAZIBWE & CO. ADVOCATES :::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

**R. L JAIN LIMITED ::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

### **BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA**

## 15 **RULING**

Introduction

This application was brought by way of Notice of Motion under **Sections 57, 58 and 80 of the Advocates Act, Cap. 256** and **Order 52 rules 1, 2 and 3 of the Civil Procedure Rules SI 71-1** seeking orders that:

- 20 1. The Applicant's bill of costs between the Applicant and the Respondent be taxed. - 2. Costs of this application be borne by the Respondent.

#### Background

The background of this application is contained in the affidavit of Mr. 25 Magellan Kazibwe, the Applicant's Managing Partner, and is summarized below:

- 5 1. That on 11th March, 2016, the Respondent instructed the Applicant to institute and prosecute *HCCS No.215 of 2016* against Prime Contractors Limited, Wilson Kashaya and Mary Grace Mbabazi in this Honorable Court which the Applicant did. - 10 2. That the Applicant executed the Respondent's instructions and obtained a final judgment and decree in the Respondent's favor. - 3. That on 12th October, 2022, the Applicant wrote to the Respondent 15 and forwarded to him a copy of the judgment wherein they requested to be assisted in the search and identification of the whereabouts of the judgment debtor and their properties to enable them apply for execution to no avail. - 20 4. That after the Applicant realizing that the Respondent was not forthcoming, had totally refused to assist them in the commencement of the execution process and had showed them that he was no longer interested in their services, they prepared their Advocate and Client's bill of costs. - 5. That on 24th January, 2023, the Applicant formerly served the Respondent with the demand notice together with their bill of costs which was duly acknowledged and the statutory thirty days without 30 settlement of the said bill of costs have lapsed.

In reply, the Respondent opposed the application contending that:

1. The Respondent shall raise preliminary points of law that this Court has no jurisdiction to determine this matter, the application is premature as the bill in the main suit has not been taxed and no 35 instructions have been withdrawn.

- 5 2. The Applicant has no evidence to substantiate the allegations that they refused to assist in the commencement of the execution and that they showed that they were no longer interested in the services of the Applicant and thus shall be put to strict proof. - 10 3. The application does not disclose the grounds for the grant of the orders therein.

In rejoinder, the Applicant reiterated his previous averments and further contended that:

- 1. This Court has the jurisdiction to hear and determine this matter. - 2. The relationship between the Applicant and the client ceased and the Applicant became entitled to be paid the costs irrespective of whether the main suit has been taxed or not. - 3. The application discloses a legal plausible ground in law and that the Applicant deserved to be remunerated for the legal services they rendered to the Respondent in *HCCS No.215 of 2016*.

# Representation

25 The Applicant was self-represented while the Respondent was represented by M/s Newmark Advocates.

The parties were directed to file their written submissions but only the Applicant has complied with the directive and the same have been considered by this Court.

30 Issues for Determination

1. Whether the Court has the jurisdiction to determine this matter?

- 5 2. Whether the Applicant is entitled to recover the costs from the Respondent? - 3. What remedies are available to the parties?

The Respondent averred, in his affidavit in reply, that he intended to raise preliminary points of law however, no submissions were filed. In the 10 premises, this Court shall infer that the same were abandoned.

Issue No.1: Whether the Court has the jurisdiction to determine this matter?

# Applicant's submissions

Counsel for the Applicant relied on **Section 80 of the Advocates Act,**

- 15 **Cap. 256 (now Section 86 of the Advocates Act, Cap. 295)** which provides that the taxing officer for the taxation of bills under this Act shall be a Registrar or a Deputy Registrar of the High Court and submitted that this section gives the jurisdiction to the Registrar or Deputy Registrar of this Court to entertain and determine matters for taxation. - 20 In conclusion, Counsel prayed that this issue is answered in the affirmative.

# Analysis and Determination

**Section 64(5) of the Advocates Act, Cap. 295** empowers this Court to order that the Advocate/Client bill of costs be taxed if the party chargeable 25 does not give notice to the taxing officer to have the matter fixed for taxation within thirty days.

Also, this Court has handled numerous applications for leave to have the Advocate/Client's bill of costs taxed such as in the cases of; *Eunice*

- 5 *Busingye & Another Vs Geresome Tabula Matovu HCMC No.50 of 2023; Mulindwa Allan t/a Mulindwa Associates & Co. Advocates Vs Baliruno John HCMC No. 4 of 2020; Ondoma Samuel t/a Alaka & Co. Advocates Vs Kana Richard HCMA No. 16 of 2018.* - Furthermore, **Section 86 of the Advocates Act, Cap. 295** provides that 10 the taxing officer shall be a Registrar or Deputy Registrar of the High Court. In the premises, this Court has the jurisdiction to determine this matter.

Issue No. 1 is answered in the affirmative.

Issue No. 2: Whether the Applicant is entitled to recover the costs from the 15 Respondent?

## Applicant's submissions

Counsel for the Applicant submitted that the Applicant adduced cogent and incontrovertible evidence that they were duly instructed by the Respondent to file and prosecute *HCCS No.215 of 2016* and that they 20 professionally and diligently executed the said instructions and even obtained a judgment in favour of the Respondent and that this is not disputed by the Respondent.

Counsel relied on **Section 57 of the Advocates Act** and submitted that under **paragraph 6** of the affidavit in support, the Applicant's Managing 25 Partner deponed that a demand notice together with the Advocates/ Client's bill of costs were formally served upon the Respondent as per annexures **"F"** and **"G"** attached to the said affidavit which is also not denied by the Respondent and that as such the Applicants are obviously

5 entitled to be remunerated by the Respondent since their relationship ceased after the passing of the judgment and extraction of the decree.

Counsel also relied on the case of *Ondoma Samuel t/a Alaka & Co. Advocates Vs Kana Richard (supra)* wherein **Hon. Justice Stephen Mubiru** held that:

10 *"Advocate/Client costs are those costs that an advocate claims from his own client and which the advocate is entitled to recover from a client for professional services rendered to and disbursements made on behalf of the client. These costs are payable by the client whatever the outcome of the matter for which the advocates' services were* 15 *engaged and are not dependent upon any award of costs by the Court. In the wide sense they include all the costs that the advocate is entitled to recover against the client on taxation of the bill of costs. The term is also used in a narrower sense as applying to those charges and expenses as between advocate and client that a client is obliged* 20 *to pay his or her advocate which are not recoverable party and party costs or costs which ordinarily the client cannot recover from the other party."*

Counsel submitted that in the instant case, the Applicant contends that they have not been paid for all the legal services rendered to the 25 Respondent which the Respondent does not deny.

In conclusion, Counsel for the Applicant submitted that since the Applicant prepared and served an itemized bill of costs for the work done and the Respondent has refused to settle the same within the statutory 30 days, their bill of costs should be taxed.

## 5 Analysis and Determination

#### **Section 64(1) and (5) of the Advocates Act** provides that:

*"(1) Within one month of the delivery of an advocate's bill, the party chargeable with the bill may by notice in writing, a copy of which shall be served by the person giving the notice on the advocate, require the* 10 *taxing officer to fix a date for the taxation of the bill and the taxing officer shall fix a date accordingly and shall give notice of the date to the party chargeable with the bill and to the advocate.*

*(5) If notice is not given by the party chargeable with the bill as provided in subsection (1) within the period specified in that* 15 *subsection, then, on the application either of the advocate or of the party chargeable with the bill, the Court may upon such terms, if any, as the Court considers proper, not being terms as to the costs of the taxation order that the bill shall be taxed."*

In the case of *Byenkya, Kihika & Co. Advocates Vs Gandesha HCCA* 20 *No.19 of 2014*, Court held that the right of an advocate to file a Client-Advocate bill of costs for taxation is granted by the express provisions of **Section 57 of the Advocates Act** and can be excluded by the express provisions of **Section 54 of the Advocates Act**. I agree with the definition of the Advocate/Client's costs as submitted by Counsel for the Applicant.

25 In the case of *Eunice Busingye & Another Vs Geresome Tabula Matovu (supra)* **Hon. Justice Ocaya Thomas O. R** laid out the key questions that the Court ought to consider in an application for leave to have the Advocate/Client bill of costs taxed, and these are: - 5 a) Were the preconditions in Section 57 now Section 63 of the Advocates Act complied with, and if not, is it just and fair to entertain the application anyway? - b) Were the instructions to conduct the work for which the fees are claimed in the bill of costs given? - 10 c) Are there are any other reasons to decline the grant of leave to tax the bill of costs?

Whether the preconditions in Section 57 now Section 63 of the Advocates Act were complied with, and if not whether it is just and fair to entertain the application anyway?

- 15 According to **Section 63(2) of the Advocates Act**, before Court can order that the Advocate/Client bill of costs is taxed, it must be satisfied that: - *a) The bill must be signed by the advocate, or if the costs are due to a firm, one partner of that firm, either in his or her name or in the name of the firm, or be enclosed in, or accompanied by, a letter which is so* 20 *signed and refers to the bill; and* - *b) The bill must be delivered to the party to be charged with it, either personally or by being sent to him or her by registered post to, or left for him or her at, his or her place of business, dwelling house, or last known place of abode.* - 25 In the instant case, the Applicant's Managing Partner averred under **paragraph 6** of the affidavit in support that the Respondent was formerly served with a demand notice together with the Applicant's bill of costs on 24th January, 2023 which was duly acknowledged as per annexures **"F"** and **"G"**.

- 5 The Respondent does not contest being served with the same. Perusal of the annexures reveals that annexure **"F"** is a demand notice dated 4th January, 2023 addressed to the Managing Director of the Respondent wherein the Applicant is demanding for settlement of their advocate's costs in *HCCS No.215 of 2016* and annexure **"G"** is a copy of an itemized 10 Plaintiff's Advocate/Client bill of costs. The bill of costs is not signed however; it is accompanied by a letter (annexure **"F"**) which is signed by the Managing Partner of the Applicant in the name of the firm. In the circumstances, the preconditions in **Section 63 of the Advocates Act** were complied with by the Applicant. - 15 Whether the instructions to conduct the work for which the fees are claimed in the bill of costs were given?

Under **paragraph 2** of the affidavit in support of the application, the Applicant stated that on 11th March, 2016 the Respondent instructed it to institute and prosecute a suit *(HCCS No.215 of 2016)* against Prime 20 Contractors Limited, Wilson Kashaya and Mary Grace Mbabazi which they did. This averment was not disputed by the Respondent. Also, according to the annexures **"F"** and **"G"**, the bill of costs so presented is in respect of the instructions that were given to the Applicant on 11th March, 2016 by the Respondent to institute *HCCS No.215 of 2016* which was 25 successfully prosecuted and judgment obtained in favour of the Respondent. In the premises, the instructions to provide legal services for which the fees are claimed in the bill were given.

Whether there are any other reasons to decline the grant of leave to tax the bill of costs?

- 5 The Respondent under **paragraphs 3(b)** and **5** of the affidavit in support contends that the application is pre-mature as the bill in the main suit has not been taxed, no instructions have been withdrawn and that there is no evidence to substantiate the fact that it refused to assist in the commencement of the execution process and that it is no longer interested - 10 in the services of the Applicant.

The Applicant averred that the relationship between the Applicant and Respondent ceased to exist since they made several attempts to persuade the Respondent to assist them in the execution process in vain and therefore they are entitled to be paid their costs irrespective of whether the 15 main suit has been taxed or not.

In evidence, the Applicant adduced annexure **"E"** attached to the affidavit in support to prove that they tried to engage the Respondent so that they can proceed and execute but this was in vain. According to annexure **"E"** dated 12th October, 2022, the Applicant informed the Respondent about

- 20 its win in *HCCS No.215 of 2016* and further requested that the Respondent conducts a search on the whereabouts of the Defendants and identification of their properties for attachment so as to recover the decretal sum. The Respondent did not adduce any evidence to dispute the above allegations. - 25 I am alive to the fact that a suit is deemed as completed upon completion of the execution proceedings. However, in the instant case, given the fact that the Applicant sought for information from the Respondent to proceed to execution and the Respondent was not responsive, this Court can infer that the Respondent frustrated the actual completion of *HCCS No.215 of* - 10 30 *2016* and this cannot be attributed to the Applicant so that it is denied its costs. More so, the Court of Appeal in the case of *Lumweno & Co.*

- 5 *Advocates Vs Transafrica Assurance Company Limited CACA No. 95 of 2004* held that an advocate in any contentious matter before the High Court is entitled to full instruction fees at the time of receipt of the instructions and the subsequent progress of the matter is irrelevant. - Regarding the argument that the application is pre-mature since the bill 10 of costs in the main suit is not yet taxed; this argument lacks merit in the given circumstances and furthermore the Respondent did not substantiate on the same in support of the argument. In light of the above, there is no reason for denying the Applicant costs in respect of the legal services they rendered to the Respondent in handling *HCCS No.215 of 2016* which - 15 they successfully prosecuted.

Issue No. 2 is answered in the affirmative.

Issue No. 3: What remedies are available to the parties?

Applicant's submissions

Counsel for the Applicant submitted that the Applicant has satisfied this 20 Court that it is entitled to recover its costs from the Respondent. That it has been 11 months and no costs have ever been settled. Counsel further submitted that Court should exercise its discretion under **Section 27 of the Civil Procedure Act** and order that the Respondent pays the Applicant, costs of this application.

25 Analysis and Determination

**Regulation 10(1) of the Advocates (Remuneration and Taxation of Costs) Regulations** provides that:

5 "*The taxing officer may tax costs as between the advocate and client without any order for the purpose, upon the application of the advocate or client."*

According to **Section 64(1) of the Advocates Act,** a client is accorded a month within which to demand for taxation of the bill of costs. In the case 10 of *Lawrence Tumwesigye & Co. Advocates Vs Hirra Traders (U) Limited and Another Misc. Cause No. 57 of 2020;* **Hon. Justice Stephen Mubiru** re-echoed that:

*"… where the client has not made a demand for taxation of the bill of costs within the stipulated thirty days after service, then the law* 15 *authorizes the Court on the application of the advocate, upon such terms, if any, as it thinks fit, not being terms as to the costs of the taxation, to order that the bill shall be taxed."*

In the instant case, the Respondent did not adduce any evidence to show that it demanded for the taxation of the bill of costs and given that the 20 same was served unto them on 4th January, 2023, the statutory thirty days have also lapsed. In the premises, leave is granted to the Applicant to have their Advocate/Client bill of costs arising out of *HCCS No.215 of 2016* taxed.

The Taxing Officer/Registrar whose duty is to determine the nature and 25 the extent of the work done by the Applicant and the fairness and reasonableness of the amounts of the costs claimed shall tax the bill of costs accordingly.

On the issue of costs, **Section 27(2) of the Civil Procedure Act, Cap. 282** provides that costs of any action shall follow the event unless there is 30 a good reason for the Court to direct otherwise.

5 Furthermore, in the case of *Uganda Development Bank Vs Muganga Construction Co. Ltd [1981] HCB 35,* **Hon. Justice Manyindo** (as he then was) held that:

*"A successful party can only be denied costs if it is proved, that but for his or her conduct, the action would not have been brought. The* 10 *costs will follow the event where the party succeeds in the main purpose of the suit."*

In the circumstances, since the application has succeeded, the costs of this application are awarded to the Applicant.

Accordingly, the application is granted with the following orders:

- 15 1. The Applicant is hereby granted leave to have its Advocate/Client bill of costs arising out of *HCCS No.215 of 2016* taxed. - 2. Costs of this application are awarded to the Applicant.

It is so ordered.

Dated, signed and delivered electronically via ECCMIS this **27th** day of

20 **August, 2024.**

Patience T. E. Rubagumya **JUDGE** 2527/08/2024 6:40am