Nsungwa & Another v Manyire (Taxation Appeal 1 of 2024) [2024] UGHC 939 (20 September 2024)

#### **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL TAXATION APPEAL NO. 01 OF 2024 (ARISING FROM TAXATION APPLICATION NO. 023 OF 2024) (ARISING FROM HCT-01-CV-0026 OF 2020)**

**1. REGINA NSUNGWA ABOOKI ::::::::: APPELLANTS 2. HELLEN RWAMATEGO RWOMUSHANA**

#### **VERSUS**

**DR. HENRY MANYIRE ::::::::::::::::::::::::: RESPONDENT**

#### **BEFORE: HON. MR. JUSTICE VINCENT EMMY MUGABO**

#### **RULING**

The appellants filed this taxation appeal under provisions of section 68 of the Advocates Act Cap. 295, Section 98 of the Civil Procedure Act Cap. 282, and Regulation 3(1) and (2) of The Advocates (Taxation of Costs) (Appeals and References) Regulations S. I 295-5, seeking the following orders:

- (a)The ruling and certificate of taxation of the learned Deputy Registrar in Taxation No. 023 of 2024 be set aside. - (b)The appellant's bill of costs in Taxation Application No. 023 of 2024 be properly taxed by this court. - (c) Costs of this application be provided for.

### **Background**

The respondent filed Civil suit No. 26 of 2020 against the appellants seeking, inter alia, a declaration that he is the owner of the suit land situate at Kyekumburwa A cell, Kibooya Ward, Buheesi Town Council in Bunyangabu district, general damages, and in alternative, special damages of UGX. 341,300,000/= being the value of the suit property.

The parties later entered into a consent settlement with costs to be borne by the respondent herein without a full-blown hearing of the suit. The appellants then filed their bill of costs and counsel for the parties agreed on most of the items save for Item Nos. 1 and 32-37, being Instructions fees and transport expenses, respectively.

When the parties appeared before the Deputy Registrar for taxation of the disagreed items, the Deputy Registrar allowed Item No. 1 at UGX. 5,000,000/= and disallowed Items 32-37 for being unsupported.

Aggrieved by the decision of the Deputy Registrar, the appellants filed this appeal.

#### **Grounds of Appeal**

The grounds for the appeal, as set out in the affidavit in the support deponed by Hellen Rwamatego Rwomushana, the 2nd appellant, the gist of which is that:

- (a)The respondent filed Civil Suit No. 26 of 2020 against the appellants for recovery of land valued at UGX. 341,300,000/= - (b)During the hearing and when the matter was in advanced stages, the parties herein entered a consent settlement with costs to the appellants.

- (c) The appellants filed their bill of costs. - (d)On the 24th of April 2024, a pre-taxation meeting was held between the parties' counsel and they agreed on most of the items save for item Nos. 1 and 32-37. - (e) When both counsel appeared before the Deputy Registrar, he taxed Item No.1 at UGX. 5,000,000/= and rejected Items 32- 35 for being unsupported. - (f) Receipts for item Nos. 32-37 were genuinely issued to the appellants. - (g)The appellants proved that the 1st appellant had a stroke and regularly attended hospital in Kampala and used to attend court from Kampala with the aid of a nurse. - (h)The Deputy Registrar erred in law when he allowed instruction fees on Item No. 1 at UGX. 5,000,000/=. - (i) The Deputy Registrar erred in law and fact by disallowing Items 32-37.

The respondent filed an affidavit in reply opposing this appeal on the following grounds:

- (a)That the appeal is bad in law, an abuse of the court process, and should be struck out with costs. - (b)That the suit land was not valued as alleged by the appellants. - (c) That the Taxing officer was justified and exercised his discretion judiciously in awarding UGX. 5,000,000/= under Item No. 1 of the appellants' bill of costs. - (d)The impugned receipts for Item Nos. 32-37 are hinged on fraud

and were generated merely to extort money from the respondent.

- (e) The impugned receipts were created before the appellants filed their written statement of defence. - (f) That the 1st appellant is a resident of Bunyangabu district as per her witness statement in Civil Suit No. 26 of 2020 - (g)The ruling of the deputy registrar should be upheld

### **Representation and hearing**

At the hearing of this appeal, Mr. Bwiruka Richard represented the appellants while Mr. Lule Kennedy Ben represented the respondent. The hearing proceeded by way of written submissions. Both counsel filed written submissions which I have considered in this ruling.

### **Issues for determination**

This court shall determine this appeal by resolving the following issues:

- 1. Whether the learned Deputy Registrar erred in law and fact by Taxing Item No. 1 of the appellants' bill of costs at UGX. 5,000,000/=. - 2. Whether the learned Deputy Registrar erred in law and fact by disallowing Item Nos. 32-37 of the appellants' bill of costs. - 3. What remedies are available to the parties?

### **Consideration by Court**

Before I delve into the merits of this appeal, I will first address the preliminary objection raised by counsel for the respondent that the instant application is incurably defective for not having a supported affidavit from the 1st appellant or written authority from the 1st appellant authorizing the 2nd appellant to depone an affidavit on her behalf. Counsel for the respondent cited Order 1 Rule 12(2) of the Civil Procedure Rules, as amended.

Counsel for the respondent also referred this court to the case of *Administrator General & 2 Others v. Nsubuga Samuel HCMA No 230 of 2022* where an application was struck out for not having supported affidavits from all the applicants.

Counsel argued that there was no proof that the 1st appellant was aggrieved by the decision of the Deputy Registrar and that the affidavit in support of the application deponed by the 2nd appellant was based on speculations. Counsel for the respondent argued that where an affidavit in support is found to be invalid, then the application has to fall.

In arguing the preliminary objection raised by counsel for the respondent, counsel for the appellants submitted that the appellants were sued together and the facts contained in the affidavit in support of the application are within the knowledge of both appellants.

Counsel for the appellants argued that an affidavit is evidence given on oath to prove a fact and, in accordance with section 133 of the Evidence Act, there is no number of witnesses required to prove a fact.

Counsel for the appellants referred this court to the case of *Grace Namulondo & 3 Others v. John Jones Serwanga Salango & others HCMA No. 01 of 2019* where it was held that the failure of the rest of the applicants to depone affidavits and relying on the affidavit of the 1st applicant is a mere irregularity which would not defeat an application given that the parties are relying on the same facts and evidence.

#### **Court's Analysis of the Preliminary Objection**

It is trite law that a person cannot swear an affidavit in a representative capacity unless that person is a holder of powers of attorney or is duly authorized *(see: Kaingana v. Dado Boubou [1986] HCB 59.*

Order 1 Rule 12 relied on by counsel for the respondent provides that:

> *"12. Appearance of one of several plaintiffs or defendants for others.*

> *(1) Where there are more plaintiffs than one, any one or more of them may be authorised by any other of them to appear, plead or act for that other in any proceeding, and in like manner, where there are more defendants than one, any one or more of them may be authorised by any other of them to appear, plead or act for that other in any proceeding.*

## *(2) The authority shall be in writing signed by the party giving it and shall be filed in the case."*

Order 1 Rule 12 of the Civil Procedure Rules envisages a representative suit where one of the parties requires express authorization from others to appear on their behalf.

However, in the instant appeal, the 2nd appellant did not state, in her affidavit in support, that she is deponing that affidavit on behalf of the 1st appellant.

In paragraph 1 of her affidavit in support, the 2nd appellant states that:

# *" I am a female Uganda of sound mind, the 2nd appellant herein and I swear this affidavit in the same capacity."*

In the case of *Samuel Kabagambe Ntungwa & 2 Others v. Florence Kekibuga Ntungwa Hcma No. 110* **of 2022** Hon. Justice Wagona Vicent held thus:

> *Where there is more than one party to an application, there is no requirement that all must swear affidavits in support of the application or give written authority. The affidavit of one of the parties is sufficient as long as the deponent depones to facts within his or her knowledge and does not purport to swear the affidavit on behalf of the rest without written authority. A party to a suit does not require* *authority to depone an affidavit in support of a suit as long as it's not done on behalf of others who have not authorized him to do so." (Also see: Esemu Nicholas & Anor v. Mwitanirwa Charles, HCMA No. 952 of 2020)*

In the instant case, the 2nd appellant deponed the affidavit in support of the application in her own capacity and in respect of facts known to her although those facts applied to all the appellants and therefore, she did not require any authority from the 1st appellant.

The case of *Administrator General & 2 Others v. Nsubuga Samuel (supra)* relied on by counsel for the respondent is distinguishable from the instant case because in the former case, the 3rd applicant deponed an affidavit on his behalf and on behalf of the 1st and 2nd applicant without their express authority.

In the premises, the preliminary objection raised by counsel for the respondent is overruled. I will thus proceed to determine the merits of this appeal.

## **Issue 1: Whether the learned Deputy Registrar erred in law and fact by taxing Item No. 1 of the appellants' bill of costs UGX. 5,000,000/=.**

In arguing issue 1, counsel for the appellants submitted Item 1(g) of the Sixth Schedule of the Advocates (Remuneration and taxation of costs) Regulations provides criteria for taxation of the instruction fees based on the value of the subject matter.

Counsel argued that in their plaint, the respondent had disclosed the market value of the suit land as UGX. 341,300,000/= and the instructions fees were supposed to be UGX. 12,046,000/=. Counsel argued that it was wrong for the learned trial magistrate to allow Item No.1 at UGX. 5,000,000/=.

Counsel for the appellants argued that the decision of the Taxing Officer was unjustified and the same should be set aside and an appropriate sum be allowed based on the value of the subject matter and complexity of the case.

On the other hand, counsel for the respondent argued that the value of the suit land as alleged by counsel for the appellants is not supported by an evaluation report. It is the argument of counsel for the respondent that the appellants had the burden to prove that indeed the value of the suit land was UGX. 341,300,000/=. Counsel for the respondent argued that the valuation report attached to the plaint did not specify the value of the suit land and therefore cannot be a basis upon which the instructions fees should be taxed.

Counsel for the respondent further argued that where the subject matter of the suit can not be determined from the pleadings, then the Taxing Officer is entitled to use his or her discretion in assessing instruction fees taking into consideration the nature and importance of the case, the interest of parties, general conduct of the proceedings and other relevant circumstances. Counsel referred this court to the case of *Joreth v. Kigano [2002] 1 EA 92.*

Counsel for the respondent also argued that where a matter has not proceeded to full trial, only a fraction of instruction fees commensurate with the level of effort put in by the advocate should be awarded. Counsel referred this court to the case of *Simbamanyo Estates Ltd & Another v. Equity Bank Uganda Ltd & 2 Others HCCA No. 016 and 024 of 2021.*

Counsel for the respondent further argued that the learned Deputy Registrar had exercised his discretion judiciously and his decision should be upheld by this court given that Civil Suit No. 26 of 2020 did not proceed to full trial but was settled out of the consent of the parties.

## **Court's Analysis of Issue 1**

It is trite that a judge shall not interfere with the decision of the taxing officer, except in circumstances deemed exceptional, such as when a wrong principle of taxation is applied or where an error of the taxing master substantially affected the decision on the quantum and upholding the same would result into miscarriage of justice. These exceptional circumstances were stated by the Supreme Court in the case of *Bank of Uganda v. Banco Arabe Espanol Civil App. No.23 Of 1999* where Mulenga, JSC, held thus:

*"The first is that save in exceptional cases, a judge does not interfere with the assessment of what the taxing officer considers 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."*

In his plaint, the respondent herein made an alternative prayer for compensation of UGX. 341,300,000/= being *"the current market value of the properties built and installed by the plaintiff before surrendering the suit land and developments onto the defendants."*

Counsel for the respondent argues that the alleged value of the suit land is a figment of imagination by the appellants since the valuation report attached to the plaint only states the value of the developments on the land excluding the value of the land itself.

I have heard the opportunity to peruse through the valuation report which was annexed to the respondent's plaint. In that report, the value of the selected developments on the suit land is UGX. 341,300,000/=. Among the remedies that the respondent had sought was a declaration that the suit land and properties thereon do not belong to the defendants (appellants herein).

Having addressed my mind to the pleadings in Civil Suit No. 26 of 2020, the affidavits in support and opposing this application and the submissions of both counsel, it is my considered view that the monetary value of the subject matter can be easily ascertained from the pleadings of the plaintiff in Civil suit No. 26 of 2020, who is also the respondent in the instant case.

With due respect to counsel for the respondent, the claim by the respondent in civil suit No. 26 of 2020 was not only in respect of the suit land but also properties thereon. As per the pleadings, the value of the properties of UGX. 341,300,000/=, as contained in the plaint and the valuation report, is but a fraction of the total value of the suit land and developments thereon. If the suit land (without developments thereon) was to be factored in, the value would have been much higher. Without any valuation report stating both the value of the suit land and the properties thereon, then this court will consider the value of the developments of the suit land – that is UGX. 341,300,000/= – for purposes of taxation of the bill of costs.

With this value in mind, the relevant provision under which to tax the instruction fees accruing to counsel for the appellants is Paragraph 1 of the Sixth Schedule of the Advocates (Remuneration & Taxation of Costs) Regulations, as amended.

Nonetheless, courts have held that instruction fees grow as the suit proceeds, and where a full-blown trial has not been conducted, full instruction fees cannot be awarded. In the case of *Lumweno & Co. Advocates v. Transafrica Assurance Company Ltd CACA No. 95 OF 2004,* the majority of the quorum of the Court of Appeal held thus:

> *"We therefore agree that the entitlement under instruction fees grows as the matter proceeds. A case that ends on a technicality cannot attract the same fees as the one that proceeds for trial. By the same logic, an advocate who only files pleadings and makes a few appearances cannot be renumerated the same way as one who takes a case through a fullblown trial. At the end of the case, a minimum fee may be reviewed upwards or even downwards, based on the advocate's involvement, complexity and other related matters.*

The Court of Appeal went on to state that:

*"While we accept that an advocate is not allowed to charge a client below the minimum fee allowed by the rules, this does not fetter the discretion of the Taxing Officer to determine whether the amount charged is commensurate with the work done."*

In awarding UGX. 5,000,000/= as instruction fees, the learned Deputy Registrar held that:

> *"Item 1 is allowed at UGX. 5 million since it was concluded by consent. There are no intricacies involved in this matter to warrant an award of an exaggerated UGX. 50 million as instruction fees. The instruction fees thus ought to be commensurate with the work done. There was nothing complex here."*

Ordinarily, in the instant case, the instruction fees that the advocate would be entitled to would have been UGX. 12,046,000/= if the matter had proceeded to a full-blown trial. However, a consent settlement was reached before a full-blown trial.

The position of the law is that an advocate is not entitled to full instruction fees merely upon the filing of pleadings and subsequent progress of the case.

In the premises, it is my considered view that in the absence of a fullblown trial, the learned Deputy Registrar applied the correct principles of taxation to award UGX. 5,000,000/= as instruction fees.

I therefore find no reason to tamper with the decision of the learned Deputy Registrar on Item No.1 of the appellants' bill of costs.

Issue 1 is thus found in negative.

## **Issue 2: Whether the learned Deputy Registrar erred in law and fact by disallowing Item Nos. 32-37 of the appellants' bill of costs.**

In arguing ground 2 of the appeal, counsel for the appellants submitted that the appellants presented their receipts for disbursement, but the Taxing Officer rejected the receipts on the ground that they were generated to support the appellants fictitious claim.

Counsel for the appellants argued that the respondent never contested the fact that 2nd appellant is a resident of Kampala who would travel to and from Kampala to attend court.

Counsel for the appellants argued that the Taxing Officer did not have the opportunity to look at the condition of the 1st appellant during trial. Counsel argued that the 1st appellant had suffered a stroke, and she was required to travel in a vehicle that would enable her to lie down with the support of a nurse.

Counsel for the appellants argued that it was wrong for the Taxing Officer to disallow Item Nos. 32-37 of the appellants' bill of costs because the receipts presented by the appellants had different dates than those on the court record. Counsel argued that if the Taxing

Officer was in doubt, he would have at least awarded the appellant's transport on the public rate.

On his part, counsel for the respondent argued that receipt Nos. 140 and 141 issued by Golden Innovations International Ltd and receipt No. 265 issued by Trust General Clinic & bedside Health Services Ntinda, all in favour of the 1st appellant, were fraudulent since the appellants filed their written statement of defence on 20th October 2020 and the impugned receipts are dated earlier than the date of filing. It was the argument of counsel that no hearing, whatsoever, had taken place at the time the impugned receipts were issued.

Counsel for the respondent also questioned the authenticity of receipt No. 285 dated 21st September 2021, receipt No. 277 dated 2nd May 2022, receipt No. 300 dated 26th of May 2022 and receipt No. 205 dated 30th May 2022 on account that there was no court hearing of the matter on those dates.

Counsel for the respondent also argued that M/S Golden Innovations Ltd., a company purported to have offered transport services to the 1st appellant was nonexistent and therefore, it could not enter into a contract with the appellants and the court would be perpetuating an illegality if it were to award the appellants costs based on receipts issued by a non-existing entity.

Counsel also argued that a motor vehicle search report dated 23rd of April 2024 for the motor vehicles in issue, Nos. UBB 354S and UBC 563B, showed that the vehicles are registered in the names of

Samuel Sserwadda and Mathius Kabagambe, respectively, and not M/S Golden Innovations Ltd.

Counsel for the respondent argued that although item Nos. 32-37 of the appellants' bill of costs show that the 1st appellant hired a nurse, there was no medical evidence that she was sick, and therefore the learned Deputy Registrar could not have indulged in speculation or fanciful theories to conclude that indeed she was sick.

Counsel for the respondent also argued that the witness statement of the 1st respondent showed that she was a resident of Buheesi Sub-County in Bunyangabo district, and thus she was bound by her pleadings.

Counsel for the respondent also argued that even if it was to be assumed that the 1st appellant resided in Kampala, there is no reasonable explanation as to why she did not travel with the 2nd appellant during the court hearings. It was the argument of counsel for the respondent that the claims by the appellants under items 32- 37 are fictitious and therefore should be struck out.

## **Court's Analysis of Issue 2**

Item Nos. 32-37 of the bill of costs relate to reimbursement for transport and related medical expenses incurred by the appellants while attending court.

It is a well-established principle that matters concerning the quantum of costs are best entrusted to the taxing master, given their specialized expertise and greater familiarity with such issues than a Judge. A Judge will not alter a fee allowed by a taxing master merely based on the Judge's subjective opinion regarding a more appropriate amount, whether higher or lower *(see*: *Auditor General*

*v. Ocip Moses and others Taxation Ref. No. 089 of 2014)*.

In the instant case, the learned registrar analyzed each of the receipts supporting the appellant's claim for reimbursement and disallowed item Nos. 32-37. In disallowing item Nos. 32-37, the learned Deputy Registrar observed that:

*"It is my strong view after consideration of all the receipts that inconsistencies in the receipts and the fact that some were issued on dates where there was no court activity/business or before the institution of the suit and by the same service providers, that is Golden Innovations International Ltd and Trust Clinic & Bedside Health Services Ntinda raises a high presumption that these receipts were merely created by the judgement creditor after the court raising concern that the items in the bill as regards transport expenditures were not supported by evidence… I, therefore, find it unsafe to rely on the receipts as documentary evidence to support the items contested since their credibility is already challenged."*

I have had the opportunity to analyze the impugned receipts. Some of the receipts such as receipt Nos. 265 and 140 were issued before the hearing of the main suit. Other receipts, save for receipt No. 435 dated 17th March 2023, were issued on dates when there was no court hearing of the suit. It is the argument of counsel for the respondent that in as much as the receipts in issue were issued by M/S Golden Innovations International Ltd, the Motor Vehicles indicated on the receipts are registered in the names of other owners, which is a further indication of forgery. The appellants did not rebut this argument.

Overall, there are clear indications that the receipts in question were forged to support the appellants' claim for the expenses listed in items Nos. 32-37.

Therefore, I cannot fault the learned Deputy Registrar for not relying on the forged receipts. This improper practice by litigants unfortunately, possibly endorsed by counsel, an officer of the court—in an attempt to induce the court to rely on forged receipts to extort money from the judgment debtor must cease and is hereby condemned in the strongest terms.

Be that as it may, I take cognizance of the fact that the appellants attended court on the dates indicated against Item Nos. 32-37. Therefore, in light of the evidence of the appellants' court attendance, the learned Deputy Registrar should not have disallowed Item Nos. 32-37 outrightly.

However, proof aside, there is no justification, whatsoever, for the appellants to have hired a private car or a nursing officer to attend court.

For instance, the court record shows that on the 16th of March 2023 and 19th of September 2023, the 1st appellant did not attend court

because she was sick. This record points to the possibility that the 1st appellant attended court only when she was in better health.

It is trite that costs chargeable under taxation as between party and party are limited to all that which was necessary to enable the adverse party to conduct the litigation, and no more *(see: The Electoral Commission v. Kidega Nabinson James HCCA No. 076 of 2016).*

In the instant case, in the absence of any justification for any of the expenses claimed under Item No. 32-37, this court will limit the expenses to what was necessary for the appellants to attend court.

In the premises, Item Nos. 32-37 are allowed at a public rate of UGX. 100,000/=, each.

Resultantly, this taxation appeal partially succeeds with the following orders:

- I. The decision of the learned deputy Registrar of allowing Item No.1 of the appellants' bill of costs at UGX. 5,000,000/= is upheld. - II. Items 32-37 of the appellants' bill of costs are allowed at a total public rate of UGX. 600,000/=. - III. Each party shall bear its own costs of this appeal.

I so order.

Dated at Fort Portal this 20th day of September 2024

\_\_\_\_\_

**Vincent Emmy Mugabo Judge**