Mulangwa v Osman (Civil Reference 3 of 2004) [2004] UGSC 52 (29 August 2004)

Full Case Text

## THE REPUBLIC OF UGANDA

$\cdot,$

$Bryant$

## IN THE SUPREME COURT OF UGANDA AT MENGO

(CARUM: J. W. N. TSEKOOKO, JSC. - SINGLE JUDGE)

CIVIL REFERENCE NO.3 OF 2004.

BETWEEN

HAJI HARUNA MULANGWA................. ...... APPLICANT

## AND

SHARIFF OSMAN ........... ......................................

[Reference to a Single Judge from a ruling of the Registrar, Supreme Court as Taxing Officer at Mengo (W. Masalu-Musene, Esqr.) dated 10th of March, 2004 in Civil Appeal 38 of 1995]

RULING: This is a reference to me as a single judge, from the order of the Registrar of this Court in his capacity as taxing officer. The taxing officer overruled an objection by Mr. Tibaijuka, counsel for the applicant, regarding the form of the bill of costs presented by Musoke & Co. Advocates, current advocate on behalf of the respondent after a change of advocates.

This matter first came up for hearing on $20/7/2004$ . Because Ms. Musoke, the respondent's counsel, who had presented the said bill of costs had withdrawn from the matter, I adjourned the hearing to $27/7/2004$ , to enable

Ehe respondent who was known to be in Kampala to be served personally. He was duly served.

t' t

on 2'7/7/2004, he appeared in person and unsuccessfully sought adjournment. I was not sat.isf ied wiEh the reasons upon which adjournment was soughE. My reasons for refusing the adjournment appear on Ehe record.

I should set out the background. The applicant, as plaintiff, won a civil suit against the respondent in the High Court, The respondent unsuccessfully appealed to this Court in Civil Appea1 No.38 of 1995. The present applicant., as respondent in thaE appeal , had filed a cross-appeal . He was unsuccessful in E,hat cross-appeal . fn Ehe appeal the present applicant was awarded the cosE of t,he appeal and costs of the trial courE. At Ehe same E,ime t,he present respondent. as respondents to Ehe crossapeal was awarded costs. Thereaf t,er, Mr. Muwayire-Nakana, counsel who had been representing the appellant in the appeal , died apparently before lodging his bill of costs in respecE of the unsuccessful cross appeal. In December, 2003, Musoke & Co, Advocat,es, Eook over and only drew up and lodged in the registry of this Court. a bill of costs for t.axation in respect of the unsuccessful cross-appeal . However in drawing that bill, Musoke & Co. Advocates, included Eherein costs which should have been claimed by Mr. Muwayire-Nakana, the original advocaEe who had, as st.ated earlier, represent,ed t.he

respondenL as a defendant in the suit and Ehe appellant on the subseguent appeal to Ehis CourE.

when the bill came before the taxing officer for taxation on L2/L/2004, Mr. Tibaijuka, counsel for the present appticant,, raised a preliminary object.ion Eo the effect that by virtue of paragraph 16 (1) of t,he provisions set out in the 3rd schedule to the Rulea of Ehis Court, Musoke & Co. Advocates, who appeared on the record from 15/72/2003 and only for purposes of processing taxaLion should noE have lumped Eogether in the same bill their costs and those cost,s due to Muwayire-Nfakana, Ehe erstwhile advocates. Learned counsel conEended thaE the bill of costs as present.ed contravened Lhe said paragraph 15(1) and (2) (supra) and for her to claim the costs was wrong in principle.

Ms. Musoke, for tshe respondent, before the taxing officer, opposed Mr. Tibaijuka's object,ion contending that under para 15 (2) (supra), the bill should be taxed in the ordinary way and that Ehe bill as presented was in proper form in as much as paragraph 15 (2) does not provide a format in which the ersLwhile advocat.es' separate items of costs should look 1ike.

The t,axing officer overruled Mr. Tibaijuka and upheld Ms. Musokets contentions. It is from Ehat holding of the taxing officer that. the applicanU made this reference under Rule 105(1) of the Ru1es of this Court,.

The reference is based on three grounds: - Mr. Tibaijuka first argued ground three separately before he argued the first and Ehe second grounds togeEher- The

3'd ground reads : -

?he -Learned Registrar misdirected hirnsef f about the extent of the applicanc's oblecELon, and wrongTy assumed that what was obJ ected to were only items 2, 3 and 4 of the respondeat's bi77 of costs . "

It is the content.ion of counsel, that the learned taxing officer misunderst.ood counsel's objection because, whereas he, as t.he applicanE's counsel, contended that only items 5,5 and 10 of the bill were properly included on t.he same bill of cosEs, and that Ehe resE of the items should not have been included on E,he same bill of costs, the taxing officer in his ru1lng implied Ehat Mr. Tibaijuka had objected Eo only iEems 2,3 arrd 4, whereas in fact the objection went beyond Ehese three items. Learned counsel also crit.icised Ehe taxing officer for his failure to appreciate that. Ms. Musoke had virEually conceded to Ehe objection.

Regarding thj.s last contenEion, Ehe record of the proceedings before r.)1e taxing officer supports Mr. Tibaijuka's conLent.ion. For aC page 11 of t.he record, Ms, Musoke is recorded Lo have submitted Lhat: -

"Rule 16 (1) provides that if there is a change of advocates, the bill of the first advocate may be annexed to that of the current Advocate and the total be showed as disbursements. Items $(2)$ (3) and (4) are under disbursements. Those are items referred to first advocate. it **But** (annexture) has to be shown as disbursements with regard to item 1, the fee provided is money paid by the appellant to the advocate."

For the sake of clarity I reproduce the bill which $% \left\vert \mathbf{r}\right\vert$ was presented this way:

| APPLICANT'S BILL OF COSTS | | |---------------------------|--| |---------------------------|--|

| ITEM | DATE | PARTICULARS | AMOUNT | AMOUN. TAXED OFF | |-------------|------------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------|----------------|------------------------| | 1. | 1995 | Instruction fees to oppose a cross-appeal involving a complicated contract of sale of land, demand for specific performance and compensation. | Shs.10,000,000 | | | 2. | 23.5.1996 | Disbursements: Transport costs for Advocate from Kampala to Mengo in Personal car for hearing and arguing the cross-appeal. | Shs.20,000 | | | 3. | $-do-$ | Transport costs for advocate From Mengo Court to Kampala In personal car. | Shs 20,000 | | | 4. | 31.10.96 | Transport costs for Advocate to and from Kampala to Mengo in personal car to receive judgment. | Shs 30,000 | | | 5. | 10.12.2003 | Transport costs for Advocate to and from Kampala to Mengo to file Bill of Costs. | Shs.50,000 | | | 6. | 10.12.2003 | Court fees for filing Bills of costs. | Shs 9,000 | |

| Commissioner's fees for Swearing affidavit of service | Shs. 2,000 | |-------------------------------------------------------------------------|----------------| | Court fees for filing the same | Shs.1,500 | | Transport costs for Advocate in personal car to file same | Shs.50,000 | | Transport costs for Advocate in personal car for taxation hearing | Shs.50,000 | | Court fees for certificate of taxation | Shs. $6,000$ | | T O T A L | SHS.10,238,500 | | | 19/12/2003 |

It is trite that a bill of costs is a factual statement of services rendered and disbursements made and, if any of the facts alleged in the bill are shown to be untrue, e.g., if it is shown that a particular service charged for has not been rendered or that particular $\overline{a}$ disbursement has not in fact been made, the relevant item in the bill must be taxed off: See Bhatt Vs Singh (1962) EA 103 at 104.

When sub paragraphs (1) and (3) of paragraph 2 of the $3^{rd}$ Schedule to our rules are read together, they in effect prohibit an advocate who has not done any work from lodging a bill of costs in which he or she claims costs for work not done by him or her. For clarity I will quote the relevant provisions. The provisions state: -

"2 (1) Where costs are to be taxed, the advocate for the party to whom costs were awarded shall lodge his or her bill with the taxing officer.

(3) A bill of advocaEe who is coats may nots be lodged bY not on record'r an

The guestion perEinent Eo the an advocaEe should appear on bill of cosEs claiming costs never rendered? matter before me is whether L.he record merely co lodge for servi.ce Ehat he or she

i.nstrucEive Eo reflecE on what schedule to our Rules aEateg. In uhis regard it paragraph 15 of the 3 It staEes: !d

"16(1) If Ehere has been a change of advocates, the bill of coata of the first advocatse Bay be annexed to that, of the current advocate and tbe total shown as disbursement.

(2) The bill shall be taxed in the ordinary way, Ehe current advocate being heard oa Lt, but the Eaxing officer uay require the flret advocate to attendrt.

I have perused Ehe record of Lhe subsEant,ive appeal (in which I parEicipated) and civil applicat.ion No.38/95 which f heard and settled Ehe order of Ehe judgment. of the Court in the appeal . I have studied tshe record of this application. It, is clear from the said records Ehat !la. Ittusoke did not appear on t.he record as an advocate for the respondent until t5l12/2003 when she only lodged

t the bill of costs now in dispute, Indeed !Is. Muaoke does not appear Eo, nor coul-d she, contest this' Yet her bill of cosLs which she )-odged and which appear above includes clai.ms for services rendered in 1995.

For inst,ance, the first icem clai.med on Ehe bill staEes: 'rlnatrucEion fees to oppoae a croaa-appeal involving a conplicated contract of Eale of land, demand for specific perfor lance and compenEationrr.

Clearly Ehat item along with t.he claims for Ehe year 1996 under iEems 2,3,4 (supra) which relate Eo disbursements were due to the ersEwhilc advocate and are definiEely caughE by the provisions of paragraph L6 of the 3'd schedule.

The object,ion raised by Mr. Tibaijuka is similar to an objection raised forty yea.rs ago against a similar bill of cosEs drawn in the same fashion in tshe case of Bhatt Vs Slngh (Supra) where the taxing officer had upheld an objecEion similar to that raised here. In that case, the taxing officer accepted the objecEion and disallowed the bill in Eoto, becauge, as in this case, Ehe only work done by the current advocaEes Ehere was to draw up an order and lodge the bill of cosEs. A reference was made to a single judge of the East African Court of Appeal . Slr Alaatair Forbea, v.p, heard t.he reference and affirmed the decision of the taxing officer. Because of

relevance of that decision I reproduce it in the In his ruling the learned Vice President extensio. referred to an earlier ruling in another reference by a different Judge of Appeal Sir Newnham of the same Court who had state that:

"A bill of costs is a factual statement of services rendered and disbursements made and, if any of the facts alleged in the bill are shown to be untrue, e.g., if it is shown that a particular service charged for has not been rendered or that a particular disbursement has not in fact been made, the relevant item in the bill will be taxed off. The commonest example of this in England is probably the inclusion in the bill of counsel's fees which had not been paid when the bill was presented: e.g. In re Taxation of costs: In re a Solicitor, [1943]1 All E. R. 592 Polak v. Marchioness and $of$ Winchester, [1956]1 W. L. R. 818. Now, if the bill before me is judged by that standard it should probably be taxed at Sh. nil for it is not a true representation of the facts. It purports to be an account of services rendered to the appellants and disbursements made on their account by Messrs. Shah and Gautama and makes no mention of Mr. Nazareth. I have no doubt that it was a genuine and well-meant attempt to meet the peculiar circumstances resulting from Mr.

is silk: it Nazareth's having taken nevertheless, an inaccurate bill."

Thereafter Sir Alastair Forbes agreed with these principles and stated: -

On the principles applied by SIR NEWNHAM it seems to me that the bill in the instant case is no more an accurate bill than that which SIR NEWNHAM was considering. It purports, on the fact (sic) of it, to be an account of services rendered to the appellants, of disbursements made on their account, and of instructions given to counsel on their account, by Mandla & Co. It is not a true factual statement; and on the principles stated by SIR NEWNHAM, by which as I have said, I am bound, I think that the taxing officer was right to tax the bill at Shs.nil, no application to amend having been made to him. The question in issue is purely a matter of form. The respondents were awarded their costs and should, I think, be given the opportunity of recovering them by being allowed to file a bill in proper form. The form appropriate appears to be adequately prescribed by Practice Note No.7 of 1956."

The note referred to by Sir Alastair Forbes, VP, spelt out at least two important points:

First being no one but. the advocate on the record for the Lime can lodge or tax a bi,11.

Second if Ehe advocates have been changed during Ehe proceedings, the bill of the first advocaLe may be annexed to that of the currenE advocate and it.s Eotal shown as a disbursement. IE may be shown as 'by anEicipaEion', if unpaid. rt will be Eaxed in the ordi.nary way, the curren! advocaE.e being heard on it'

Alt.hough Ehe taxing Officer described this procedure as mere cechnicality, those two points consEitute Ehe present paragraph 16 of the 3'd schedule to our Rules and Ipersonally think that "hey are based on Ehe need to prevent a successor advocate from reaping where he or she never sowed, a practice which Mr. Tibaijuka says is rampant in High Court .

I think Lhat Mr. Tibaijuka was just.ified in his objection t,o t.he bill. The Learned Eaxing officer overruled Mr. Tibaijuka's objecEion on the basis that para 16 does not seE out. the form of how the bills should 1ook. With respect, I think that the provision is clear. The items which should have been claimed by the previous advocate must, be listed separately on a separate bill and be made an annex to the bill 0f E.l,r: current advocate. The current advocate should explain to the taxing officer what costs are due to him or her and those due to previous advocate,

In EhaL way trhe bill presented for taxation would be stat.ing the Erue position. ft is noE jusE a question of form curable under Article :.26 (2) (e) of the consEitution as stated by Ehe learned taxing officer. The bill as presented indeed purports Eo show EhaE Ms. Musoke had been herself instructed in 1995 to oppose Ehe crossappeal and was t.herefore entitled to claim shs 10, OoO, O0O/= as instruct ion fees . Of course that i-s fundamenEally and absolutely false and it must not be encouraged.

, ri

> Further officer did noL Mr. Tibaijuka jr-rstifiably criticieed the taxing when the latter appeared Eo imply EhaE counsel object to the first item in the biII.

> Therefore ground disposes of Ehis the remaining two Ehree must succeed. reference. I find no grounds. This need to rea11y discuss

> Conseguent.ly I alIow this application. I set aside the order of Ehe taxj.ng officer. I uphold bhe objecEions raised before t.he Taxing officer by Mr. Tibaijuka.

> f order thaE the responcent may lodge his ov,n bill of costs claiming any costs due Eo him or if he wishes Eo engage an advocate t.hat advocatey' may amend Ehe bill now filed or file two separate bills of costs namely one for Ehe current. advocate and the oEher for messrs Muwayi re - Nakana, the previous advocate. The lat. E,er is Eo be

> > L2

annexed to the former as stipulated by para 16 (2) of the 3rd schedule. The applicant in this reference will have the costs of this reference in any event.

Delivered at Mengo this 25th day of Bust, 2004

J. W. N. Tsekooko JUSTICE OF THE SUPREME COURT.

Applicant Present. Mr. Tibaijnka for Amplicant. Respondent present Mr. Kennign for Respondent. Regut to refer to full course with Seven days exploruminated: Esoteo baijaka-is askee about 1083 Mr. ed to comes. ce in the and repeats he is entited