Nsubuga,Mubiru and Company Advocates v Kebikomi and Another (Consolidated Miscellaneous Cause 42 of 2023; Consolidated Miscellaneous Cause 61 of 2023) [2024] UGHCCD 140 (23 August 2024)

#### **THE REPUBLIC OF UGANDA**

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

## **(CIVIL DIVISION)**

#### **IN THE MATTER OF THE ADVOCATES ACT CAP 267**

# **IN THE MATTER OF THE ADVOCATES (REMUNERATION AND TAXATION OF COSTS) REGULATIONS SI 267-4**

# **IN THE MATTER OF AN ADVOCATE-CLIENT BILL OF COSTS CONSOLIDATED MISCELLANEOUS CAUSES NO. 042 & 061 OF 2023**

# **NSUBUGA MUBIRU & CO. ADVOCATES :::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

# **1. KEBIKOMI PHIONA**

## **2. ABAASA PITSON** *(Administrators of the Estate*

*of the Late Obey Christopher)* **::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

### **BEFORE: HON. JUSTICE BONIFACE WAMALA**

#### **RULING**

#### **Introduction**

[1] The applicant brought two applications against the same respondents which were consolidated by the Court and handled together. The applications were brought by Notice of Motion under Section 98 of the CPA, Sections 57 and 60(1) & (2) of the Advocates Act Cap 267 (then) and Order 52 of the CPR seeking orders that;

- a) The advocate-client bill of costs to be taxed. - b) Costs of the application be provided for.

[2] The grounds of the application are summarized in the Notice of Motion and in the affidavit in support of each application deposed by **Mr. Nsubuga Mubiru**, an advocate and managing partner of the applicant law firm. Briefly, the grounds in Miscellaneous Cause No. 042 of 2023 are that the deponent received instructions from the late Christopher Obey to represent him in Criminal Case No. 003 of 2016 wherein he was charged with the offence of diversion of public resources amounting to 15.4 billion, among other offenses, before the High Court of Uganda, Anti-Corruption Division. The deponent stated that he diligently handled the matter by making several appearances until judgment was delivered wherein the late Obey Christopher was convicted and sentenced to 14 years' imprisonment and ordered to compensate the Government of Uganda to the tune of UGX 3,495,680,066/=. The deponent stated that at the time of his death, the late Obey Christopher had not paid the legal fees for the services rendered by the applicant firm. He stated that on 7th November 2022, through his duly instructed lawyers Isabirye & Co. Advocates, the respondents who are the administrators of the estate of the deceased were served with a demand notice together with the advocate-client bill of costs in respect of the matter to effect payments for the work done. He further stated that the 30 days in which the respondents were supposed to effect payment have since elapsed and the demand remains un-honored. He concluded that it is just and equitable that the advocate-client bill of costs be taxed for the applicant to receive their due legal fees.

[3] In M. C No. 0061 of 2023, the grounds are that that the applicant received instructions from the late Christopher Obey to represent him in Criminal Appeal No. 357 of 2016 wherein Christopher Obey was convicted of diversion of public funds amounting to 88 billion, among other offences, by the Anti-Corruption Court. The convict had been sentenced to various terms of imprisonment and ordered to compensate the Government of Uganda to the tune of UGX 50 billion shillings. The applicant filed an appeal to the Court of Appeal which they diligently handled until judgment was delivered. The deponent stated that before his death, the late Christopher Obey had not paid the legal fees for the services rendered by the applicant firm. On 7th November 2022 the respondents, who are the administrators of the estate of the deceased, were served with a demand notice together with the advocate-client bill of costs in respect of the matter asking them to effect payment for the work done. The 30 days in which the respondents were supposed to effect payment have since elapsed and the demand remains un-honored. The applicant prayed that the application be allowed and the bill accordingly be taxed.

[4] The respondents opposed the application through an affidavit in reply deposed by **Mr. Abaasa Pitson**, the 2nd respondent who is an advocate of the High Court and one of the executors of the estate of the late Christopher Obey. He stated that upon receipt of the application, he consulted with Gerald Yashaba who was the personal accountant of the late Christopher Obey to confirm whether the applicant demanded the said monies from the deceased as legal fees. He was informed by the accountant that the applicant never demanded any monies since legal fees were always paid in advance. The deponent checked through the documents of the late Christopher Obey for proof of payment; upon which he found some copies of receipts and hand written acknowledgement receipts from the applicant. The deponent further stated that he has never been served with the advocate-client bill of costs by the applicant's lawyers which makes the application premature.

[5] It was further stated by the deponent (the 2nd respondent) that a letter dated 7th December 2021 was brought to his attention by Phiona Kebikomi (the 1st respondent) indicating that the applicant demanded from the estate of the late Christopher Obey a sum of UGX 480,000,000/= being legal fees for handling Criminal Case No. 9 of 2015, Criminal Case No. 003 of 2016 together with the attendant appeals. He averred that the amount demanded in the letter as against that indicated in the advocate-client bill of costs arising from criminal case No. 03 of 2019 are inconsistent. The deponent concluded that there is no outstanding amount being demanded by the applicant since all legal fees were

fully paid and it is just and equitable that the court does not allow the taxation of the advocate-client bill. He finally averred that the applicant is using this application to unjustly enrich itself at the expense of the estate of the deceased.

#### **Representation and Hearing**

[6] At the hearing, the applicant was represented by **Mr. John Isabirye** of M/s Isabirye & Co. Advocates while the respondents were represented by **Mr. Abaasa Pitson** from M/s Ivory Advocates. The hearing proceeded by way of written submissions which were duly filed by both counsel and have been considered by the Court in the determination of this matter.

#### **Issues for Determination by the Court**

[7] Two issues are up for determination by court, namely;

- **a) Whether leave to tax the advocate-client bills of costs should be granted?** - **b) What remedies are available to the applicant?**

#### **Resolution of the Issues**

# **Issue 1: Whether leave to tax the advocate-client bills of costs should be granted?**

#### **Submissions by Counsel for the Applicant**

[8] It was submitted by Counsel for the applicant that for an application for taxation of an advocate-client bill of costs to be allowed, the court must be satisfied that; there was legal work done by the applicant, a copy of the advocate-client bill of costs was served upon the respondent, and no payment has been made by the respondent. Counsel relied on the provision under Section 57 of the Advocates Act and the decision in *Muziransa Associated Advocates v Harriet Sanyu T/a Hamosa Catering Services, HC MC No. 08 of 2017*. Counsel submitted that the applicant has shown in evidence that they received instructions to represent the late Christopher Obey and they diligently executed the instructions. The client, however, died before payment of their legal fees. The applicant served demand notices attached with advocate-client bills of costs upon the respondents who are the executors of the estate of the deceased client but the demand was not honored. Counsel concluded that the applicant has established that they are entitled to have their bills of costs taxed so as to determine what is due to them.

#### **Submissions by Counsel for the Respondents**

[9] Counsel for the respondents submitted that the applicant's bills of costs should not be taxed for two reasons, namely; that the applicant had failed to comply with the mandatory provisions of section 57 of the Advocates Act, and the costs of the applicant's services were agreed upon and paid by the late Christopher Obey. Counsel submitted that contrary to the requirement under section 57 of the Advocates Act, the applicant never served the bills of costs upon the 2nd respondent personally; which makes the applications premature before the Court.

[10] Counsel for the respondents further stated that the respondents have adduced evidence showing that the costs payable to the applicant were agreed upon and paid by the late Christopher Obey before his demise. Counsel relied on receipts and other hand written documents acknowledging several payments made to the applicant by the late Christopher Obey before his demise. Counsel argued that in terms of Section 10 of the Contracts Act 2010 and in light of the decision in *Roko Construction Ltd v Adam Ssempijja, HCMA No. 38 of 2021*, the said documents are capable of amounting to a contract. Counsel submitted that the said documents are not disputed by the applicant and the claim that the payment thereon was made in part payment is not supported by any evidence. Counsel prayed to the Court to deny the consolidated applications.

# **Determination by the Court**

[11] Section 57 of the Advocates Act Cap 295 provides as follows;

# *"Action to recover advocate's costs*

- *(1) Subject to this Act, no suit shall be brought to recover any costs due to an advocate until one month after the bill of costs has been delivered in accordance with the requirements of this section; except that if there is probable cause for believing that the party chargeable with costs is about to quit Uganda, or about to become bankrupt, or to compound with his or her creditors, or to do any other act which would tend to prevent or delay the advocate obtaining payment, the court may not withstanding that one month has not expired from the delivery of the bill, order that the advocate be at liberty to commence a suit to recover his or her costs and may order those costs to be taxed.* - *(2) The requirements referred to in subsection (1) are as follows; -* - *(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 own name or in the name of the firm, or be enclosed in or accompanied by, a letter which is so signed and refers to the bill; and* - *(b) The bill must be delivered to the party 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,*

*and where a bill is proved to have been delivered in compliance with these requirements, it shall not be necessary in the first instance for the advocate to prove the contents of the bill (which shall be presumed until the contrary is shown) to be a bona fide bill complying with this Act."* [Emphasis added]

[12] In the consolidated applications, it was shown by the applicant that the bills of costs were served upon the respondents together with letters of demand dated 7th November 2022. Proof of the service is adduced by way of affidavits of service deposed by a one Nekesa Susan, a process server working with the applicant law firm in affidavits sworn on 9th November 2022 and filed on ECCMIS on 3rd October 2023. In the affidavits of service, it is shown that service, of the letters of demand and the bills of costs respectively, was effected upon the 1st respondent who acknowledged receipt of the service. These facts have not been disputed by the 1st respondent, who made no affidavit in reply to the application. The argument by the 2nd respondent is that even if such service upon the 1st respondent existed, it would not amount to service upon himself (2nd respondent) since according to section 57(2)(b) of the Advocates Act, the bill must be delivered to the party 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.

[13] On the other hand, it was submitted by Counsel for applicant that given the fact that the two respondents are executors of the estate of the late Christopher Obey, service upon one of them amounted to service upon both, since under the law executors perform their duties jointly. I have found the evidence of service of the bills of costs upon the 1st respondent believable. The evidence has not been controverted by the respondents. I am in agreement with the argument by the applicant that service of the said documents upon the 1st respondent amounted to service upon both respondents. It is the true position of the law that executors or administrators of an estate perform their duties jointly and have joint obligations and liabilities. As such, service done upon one executor cannot be denied by the other. Indeed, the 2nd respondent in his affidavit in reply agrees that he learnt of the demand notices from the 1st respondent. It is clear from the pleadings herein that the two respondents were sued in their capacity as executors of the estate of the deceased client, and not in their individual capacities. In view of such evidence and circumstances, the applicant has satisfied the Court that the respondents were served with the letters of demand and the bills of costs as required under the law.

[14] It has also been established by the applicant that the bills of costs were duly signed by an advocate from the applicant law firm and that at the time of filing the applications, thirty days had since elapsed since the time of issuance of the notice of demand to the respondents.

[15] It was further claimed by the 2nd respondent that before the demise of the late Christopher Obey, the fees for the legal services provided by the applicant had been agreed upon and paid by the deceased. Counsel referred to copies of receipts and other handwritten documents acknowledging receipt of payment to the applicant of various sums as proof that such was the sum agreed upon and duly paid by the client. For the applicant, it was stated that upon receipt of instructions from the late Christopher Obey, there was no agreement on the sum payable by the client and the understanding was that such would be agreed upon after completing the work. It is argued by the applicant that the payments received by them were in part payment during the performance of the instructions. The applicant further stated that it is important that the bills of costs are taxed so that whatever was paid is offset from the certified sum.

[16] A reading of Section 57(2) of the Advocates Act shows that *"… where a bill is proved to have been delivered in compliance with these requirements, it shall not be necessary in the first instance for the advocate to prove the contents of the bill (which shall be presumed until the contrary is shown) to be a bona fide bill complying with this Act"*. This means that upon proof of the requirements set out under Section 57(2) above, the claim in the bill of costs is presumed genuine and bona fide, unless the contrary is proved by the respondent. As such, in a case such as this one where the respondents claim that the sums payable were agreed upon and paid by the client, it is the duty of the respondents to prove that assertion. The 2nd respondent attempted to execute that burden by relying on copies of receipts and other handwritten documents upon which the applicant acknowledged receipt of various sums of money. Counsel for the respondents argued that such receipts and acknowledgement documents constituted the agreement between the applicant and the client (the late Christopher Obey).

[17] In law, an agreement is a contract between parties. The known essential elements of a contract are offer, acceptance, capacity, consideration and intention to create legal relations. See: *Section 10(1) of the Contracts Act 2010*. A receipt is simply an acknowledgement of payment of a sum of money. By itself, a receipt cannot satisfy the elements of an agreement. Looking at the copies of receipts and other acknowledgment documents adduced in the present case, they do not and are incapable of disclosing the elements of an agreement. They only disclose one fact; being that the applicant received some payments from the client. Such cannot be a bar to taxation of a duly presented bill of costs. It only calls upon the taxing master to consider the sums already paid and prevent a situation of double payment.

[18] The respondents have, therefore, failed to rebut the presumption that the claims in the bills of costs as presented by the applicant are genuine and bona fide. I have also found as immaterial the alleged inconsistency between the sums indicated in the letters of demand on the one hand and the bills of costs on the other. Such inconsistency as alleged by the respondents does not in any way cast a doubt on the bona fides of the respective bills of costs. Conversely, the applicant has satisfied all the requirements set out under the law above cited and is accordingly entitled to be granted leave to have the respective advocate-client bills of costs taxed by the taxing master of the Court. Issue one is therefore answered in the affirmative.

#### **Issue 2: What remedies are available to the Applicant?**

[19] It follows that the applicant is entitled to present their bills of costs for taxation by the taxing master of the Court. Regarding costs of the applications, Section 27 of the CPA provides that costs follow the event unless the court, for good cause, decides otherwise. There is no reason in the present case as to why the applicant should not be granted the costs of the consolidated applications. The costs are accordingly granted to the applicant.

[20] In all, therefore, the consolidated applications are allowed with orders that;

- a) The applicant is granted leave to present the respective advocate-client bills of costs for taxation by the taxing master of the Court. - b) The costs of the consolidated applications shall be paid by the respondents.

It is so ordered.

# *Dated, signed and delivered by email this 23rd day of August, 2024.*

**Boniface Wamala JUDGE**