Nabisaalu & Another v Mutumba & Another (Taxation Appeal 56 of 2024) [2024] UGHCLD 271 (15 November 2024)

# **THE REPUBLIC OF UGANDA**

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

# **LAND DIVISION**

# **TAXATION APPEAL NO. ML 0056 OF 2024**

### **(ARISING FROM TAXATION APPLICATION NO. 0139 OF 2024)**

**[ARISING FROM HIGH COURT CIVIL SUIT NO. 619 OF 2019]**

# **1. TEDDY NABISAALU**

### **2. TEBANDEKE MUHAMMED MUSANJE & Others**

**(Administrators of the Estate of Yuniya Maria Kamuwanda and Maria Alexandrea) ::::::::::::::::::::::::::::::: APPELLANTS**

### **VERSUS**

### **1. MUTUMBA MUHAMMAD**

### **2. NTUUTI FARMERS ::::::::::::::::::::::::::::::::::::: RESPONDENTS**

# **BEFORE: HON; LADY JUSTICE NALLUZE AISHA BATALA RULING**

# *Introduction;*

1. Teddy Nabisaalu hereinafter referred to as the 1st applicant together with Tebandeke Muhammad Musanje and 3 others (Adminstrators of the Estates of the Late Yuniya Maria Kamuwanda and Maria Alexandria) brought this appeal against Mutumba Muhammad and Ntuuti Farmers Limited herein after referred to as the 1st and 2nd respondents for orders that;

- i) The preliminary objection raised by the appellants on the taxation application be upheld. - ii) The bill of costs and award be quashed and set aside because it is manifestly excessive, oppressive and was made in disregard of the relevant schedule of the Advocates Act and (Remuneration and taxation of costs) Regulations. - iii) The Bill of costs be returned and put to another Registrar and taxed in accordance with the prescribed Advocates (Remuneration and Taxation of costs) Regulations 2018. - iv) Costs of this appeal be provided for.

# *Appellant's evidence;*

- 2. The appeal is supported by an affidavit deponed by Yakubu Kayongo which briefly sets out the grounds of appeal as follows; - i) The Registrar erred in law when he wrongly and concurrently taxed the bill of costs on the basis of the final dismissal of the suit when instead the case was merely abated on an application.

- ii) The Registrar erred in law and in fact when he taxed the bill of costs, especially an item of instruction fees based on the value of the suit land of UGX 1 billion when the value of the land was never a subject of that application and was not embedded in an application for abatement. - iii)The Registrar ruled on the objections and taxed exparte and awarded a bill of costs on various items which is manifestly excessive, oppressive, and not justified in the application for abatement. - iv) The learned Registrar erred in fact and law when he failed to rely on the decision of the Supreme Court supplied which had elucidated on the conditions, limitations and guidelines as provided under the Advocates Act and Regulations.

# *Respondent's evidence;*

- 3. The appeal was responded to by an affidavit in reply deponed by Kamoga Joshua an Advocate of the High Court which briefly states as follows; - i) That the taxing master was in his own right and correct when he taxed the bill of costs on account that the costs

had actually been awarded by the trial judge in the main suit at its abatement.

- ii) That whether or not the value of the subject matter was not dealt with is not an issue and that while taxing under the regulations, there is no requirement or impediment to taxing costs that have been awarded. - iii)That the costs were not excessive but rather less than expected and that the taxing master was within his mandate. - iv) That there was no binding decision cited by the appellants and that the particular taxation decision was not only unreported but as well not binding on the taxing master. - v) That the taxing master was under no duty to uphold a baseless preliminary objection.

# *Representation;*

4. The appellants were represented by Counsel Yakubu Kayongo holding brief for Godrefy Lule of M/S Godfrey S. Lule Advocates whereas the respondents were represented by Counsel Kamoga Joshua of M/S Kintu Nteza & Co. Advocates. Parties proceeded

by way of written submissions which I have considered in the determination of this ruling.

# **Resolution and Determination of the appeal;**

- 5. I have read and considered the submissions of both counsel in this matter. - 6. The principles that apply to this court sitting in an appeal against the decision of a taxing master have been long settled. In the case of **Bank of Uganda V Banco Arabe Espanol, Supreme Court, Civil Appeal No. 23 Of 1999** the court observed as follows, *save in exceptional cases, a judge does not interfere with the assessment of what the taxing officer consider to be a reasonable fee. This is because it is generally accepted that questions which are solely of quantum of costs are matters with which the taxing officer is particularly fitted to deal, and in which he has more experience than the judge. Consequently, a judge will not alter a fee allowed by the taxing officer, merely because in his opinion he should have allowed a higher or lower amount. Secondly, an 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. In this regard, application of a wrong principle is capable of being inferred from an award of an amount which is manifestly excessive or manifestly low. Thirdly, even if it is shown that the taxing officer erred on principle the judge should interfere only on being satisfied that the error substantially affected the decision on quantum and that upholding the amount allowed would cause injustice to one of the parties.*

- 7. The facts leading do this appeal as can be discerned from the pleadings of both parties are that the applicant filed an application for addition of parties and amendment of pleadings in Civil Suit No. 619 of 2019. The respondent raised preliminary objections to the application to the effect that Civil Suit No. 619 of 2019 abated and or should be dismissed for want of prosecution for failure by the plaintiff to extract summons for directions. - 8. This court upheld the preliminary objections and dismissed the application with costs. For clarity, I will reproduce paragraph 24 of the decision of the court in that application; **24. Costs of the**

**application are awarded to the 1st, 2nd, 6th, 7th and 8th respondents/ defendants.**

- 9. It is clear that this court only granted costs in Miscellaneous Application No. 3380 Of 2023. No order as to costs was pronounced by the court in respect of Civil Suit No. 619 Of 2019. The learned taxing master thus erred in taxing costs for Civil Suit No. 619 Of 2019 where no costs had been granted instead of costs for Miscellaneous Application No. 3380 Of 2023. - 10. It is trite that the taxing master cannot award and or further proceed to tax costs where no order of costs was made and that the taxation must be within the four corners of the order of the court. **Justice Mubiru** in **Byenkya Kihika & Co Advocates V Fang Min HCMC No. 0052 Of 2022** observed that, *Save for the costs of taxation, the Taxing Officer does not award costs nor decide on issues of liability to pay costs; that is done by the court. Therefore, the jurisdiction of a Taxing Officer is to determine quantum by taxing bills of costs in accordance with the applicable principles and schedule of The Advocates (Remuneration and Taxation of Costs) Rules, where there is no dispute as to retainer, or where costs have been duly awarded by an order of Court [*Emphasis mine]

- 11. I find that the taxing officer went beyond the order of this court in taxing costs for Civil Suit No. 619 Of 2019 and therefore set aside his ruling, orders and certificate of taxation. - 12. This court has the jurisdiction to retax a bill of costs and interfere with a decision of the taxing master where it is satisfied that the master made an error that substantially affected the quantum and upholding the amount would cause an injustice to the parties. (**See; Bank of Uganda V Banco Arabe Espanol (Supra) & Attorney General V Hon. Theodore Ssekikubo & Ors Supreme Court, Civil Reference No.013 Of 2016)** - 13. Taxation of costs for interlocutory matters is governed by **Paragraph 9(2) of the sixth schedule of the Advocates (Remuneration and Taxation of Costs) Regulations** *(2) 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.* - 14. It was thus erroneous for the taxing master to tax instruction fees for the application on the basis of the value of the suit land in Civil Suit No. 619 Of 2019. - 15. It is the position of the law that for interlocutory applications, instruction fees are based on what is reasonable in the eyes of

the Taxing officer and not the value of the subject matter or amount claimed. **See Bank of Uganda V Sudhir Ruparelia & Meera Investments, Supreme Court Taxation Reference No. 001 Of 2023**, see also the decision of **Gashirabake JA in Muddu Awulira Enterprises Limited & Ors V Stanbic Bank Uganda Limited, Court of Appeal, Taxation Reference No. 051 Of 2019,** I am bound by these decisions.

- 16. I am guided by the principles that govern taxation of costs that were laid down in **Premchand Raichand Lts V Quarry Services of East Africa [1972] EA 162.** I find that an application for addition of parties and amendment of pleadings is not unique in any way and the preliminary objections raised by the respondent were not difficult. I therefore find that the instruction fees of **Shs. 11,000,000 (Eleven Million)** and **Shs. 2,068,000 (Two Million, Sixty-Eight Thousand)** fair and reasonable in the circumstances of this appeal. - 17. In the premises, this appeal partially succeeds on the following terms; - i) The decision and orders of the learned Taxing Master in taxation application No. 0139 of 2024 are set aside.

ii) The respondents' costs for Miscellaneous Application No. 3380 of 2023 are taxed at a grand total of **Shs.13, 068,000**

# **(Thirteen Million, Sixty-Eight Thousand)**

iii) Each party shall bear its costs for this appeal.

# **I SO ORDER**.


# **NALUZZE AISHA BATALA**

# **Ag. JUDGE**

#### **15 th/11/2024**

# **Delivered Electronically via ECCMIS on the 15th of November,**