Roland Ndyomugyenyi v Nile Basin & Anor (Miscellaneous Appeal 28 of 2021) [2023] UGHCCD 377 (13 November 2023)

# **THE REPUBLIC OF UGANDA**

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

## **(CIVIL DIVISION)**

#### **TAXATION APPEAL NO. 28 OF 2021**

#### **(ARISING FROM TA 0204 OF 2020)**

## **ARISING FROM MISCELLANEOUS CAUSE NO.373 OF 2018)**

**RONALD NDYOMUGENYI============================APPELLANT**

#### **-VERSUS-**

#### **1. NILE BASIN INITIATIVE**

**2. INNOCENT NTABANA============================RESPONDENTS**

# **BEFORE: HON. MR. JUSTICE PHILLIP ODOKI JUDGMENT**

## **Introduction:**

[1] This appeal arises from the decision of the Deputy Registrar of this court/ taxing master delivered on the 26th April, 2021 awarding the Respondents costs of UGX 15,555,600/= in Miscellaneous Cause No.373 of 2018 and Misc. Application No. 791 of 2018.

[2] The appeal was commenced by Chamber Summons pursuant to Section 62 of the Advocates Act, Cap 267, Regulation 3 of The Advocates (Taxation of Costs) (Appeals and References) Regulations, SI 267 – 5 and Order 50 Rule 8 of the Civil Procedure Rules. The Appellant sought for orders that, the appeal be allowed; the taxation be set aside; the Respondent's bill be referred back to Deputy Registrar for taxation and the costs of the appeal be provided for.

#### **Background:**

[3] On the 14th December, 2018, the Applicant filed Miscellaneous Cause No.373 of 2018 before this court against the Respondents seeking for judicial review of the decision of the Respondents dated 28th November 2018 not to renew his contract of employment with the 1st Respondent. On the 14th December 2018, the Appellant filed Misc. Application No. 791 of 2018 for a temporary injunction, restraining the Respondents from removing the Appellant from his office.

[4] On the 26th June 2019 this court dismissed Misc. Application No. 791 of 2018 with costs to the Respondents. On the 29th May, 2020 this court also dismissed Miscellaneous Cause No.373 of 2018 with costs to the Respondent.

[5] On the 19th November 2020, the Respondents, vide TA 0204 of 2020, filed their bill of costs of UGX 184,682,600/=. The taxation was fixed for hearing on the 10th February, 2021. On the 18th December, 2020, counsel for the Appellant were served with the taxation hearing notice. On the 3rd February 2021, counsel for the Respondents wrote to counsel for the Appellant proposing to meet with them on the 10th February 2021 at 10.30am for a pre – taxation meeting. Counsel for the Appellant did not reply to the letter of counsel for the Respondents. Counsel for the Appellant noted on the letter that ""Salvo Jure" Counsel with personal conduct of the matter is indisposed." The taxation meeting did not therefore take place.

[6] There is no record on the court file of what transpired in court on the 10th February 2021 when the matter was scheduled for taxation. The court record shows that on the 15th March 2021 counsel for the Respondents did not appear in court. Counsel Tukwasibwe Derick appeared for the Appellants. He informed the court that the pre taxation meeting had not yet taken place. He requested that the matter be adjourned to enable the parties to meet and discuss the bill before taxation can proceed. The learned Deputy Registrar adjourned the taxation hearing to the 14th April 2021.

[7] Before the date scheduled for the taxation hearing on the 14th April 2021, on the 12th April 2021, counsel for the Respondents wrote to counsel for the Appellant indicating that they had made attempts by phone calls to Mr. Tubwasibwa Derrick and Dr. James Akampumuza (counsel for the Appellant) to have the pre -taxation meeting but in vein, the last attempt having been made the morning of 12th April 2021. Counsel for the Respondents accordingly informed counsel for the Appellant that on the 14th April 2021 when the taxation would be coming up, they would seek the indulgence of court to proceed with the taxation in view of the fact that pre taxation meeting had been frustrated. The letter was duly received by counsel for the Appellant on 13th April 2021 who stamped it and only noted that, "Salvo Jure".

[8] On the 14th April 2021 when the taxation came up for hearing, counsel for the Appellant was not in court. Counsel for the Respondent informed the court that they had made several attempts to have the pre taxation meeting, but the same had been frustrated. The learned Deputy Registrar noted that there was evidence that efforts were made to write letters to the Appellant to have a pretaxation meeting but in vein. The Deputy Registrar ordered that counsel for the Respondents should present their bill, which was done. On the 26th April 2021, the Deputy Registrar delivered his taxation ruling in the presence of Mr. Thomas Ocaya for the Respondents and in the absence of the Appellant. The bill of the Respondents was allowed at UGX 15,555,600/=. The Appellant being dissatisfied with the taxation ruling, filed this appeal.

# **Appellant's case:**

[9] The grounds of the appeal were set out in the Chamber Summons and in the affidavit in support and an affidavit in rejoinder sworn by Mr. Derrick Tukwasiibwe an advocate practicing with M/S Akampumuza & Co. Advocates, counsel for the Appellant. In summary, the grounds of the appeal are that:

- i. The bill of costs, the taxed bill and the taxation ruling/order was not served onto the Appellant. - ii. The bill of costs was taxed without first conducting the mandatory pre taxation hearing.

- iii. The Appellant was denied the right to a fair hearing by not being given an opportunity to participate and oppose the bill of cost. - iv. The learned Deputy Registrar erred in law and fact when she taxed the Respondents' bill not in accordance with the law. - v. The learned Deputy Registrar erred in law and fact when she awarded the respondent UGX 15,555,600/= as costs, in a judicial review application, which was manifestly harsh and excessive in the circumstances, without taking into account the governing rules.

# **The Respondents' case:**

[10] The Respondent's case was set out in the affidavit in reply sworn by Ms. Musiimire Viola and Mr. Thomas Ocaya, all advocates practicing with M/s K&K Advocates and counsel for the Respondents. In summary, the Respondents' case is that:

- i. Despite the efforts by the Respondents' counsel to reach out to the Appellant's counsel to hold a pretaxation meeting, no response was given by them. - ii. The Deputy Registrar proceeded with the taxation after proof of service of taxation hearing notice upon the Appellant. In addition, the Deputy Registrar considered the fact that the Appellant's lawyers failed to attend the pretaxation meeting. - iii. The taxed bill of costs was excessive or harsh but was fair in the circumstances.

# **Legal representation:**

[11] At the hearing, the Appellant was represented by Dr. James Akampumuza of M/S Akampumuza &Co. Advocates, while the Respondents were represented by Mr. Usama Sebufu of M/S K&K Advocates.

# **Submissions of counsel:**

[12] In their submissions, both counsel raised preliminary objections. Counsel for the Appellant submitted that the affidavits in reply were filed 55 days from the date of service of the Chamber Summons on the Respondents. According to counsel for the appellant, the affidavits were filed late in contravention of Order 12 Rule 3 of the Civil Procedure Rules. In support of his arguments, counsel for the Appellant relied on the case of *Stop and See (U) Ltd versus Tropical Africa Bank Ltd HCMA No. 333 of 2010*; *Simon Tendo Kabenge versus Barclays Bank (U) Ltd and another CACA No. 17 of 2015; Springwood Capital Partners Ltd versus Twed Consulting company Ltd HCMA No. 746 of 2014*; and *Tumusiime Charles versus Kasirye Fredrick HCMA No.0317 of 2014*.

[13] Counsel for the Respondents on the other hand raised a preliminary objection to that the Chamber Summons were served out of time. According to cousel for the Respondents, the Summons were sealed by the registrar on the 25th May 2021 and the Respondent was served with an order of the court extending the chamber summons dated 11th January 2022. Counsel for the Respondents argued that the service of Chamber Summons offends Order 5 Rule 1(2) of the Civil Procedure Rules. Counsel further argued that the order of the court to renew the Summons was void ab initio. In support of his arguments, counsel relied on the case of *Edison Kanyabwera versus Pastori Tumwebaze [2005] 2 EA 86; Bitamisi Namudu versus Rwabugando Godfrey, SCCA No. 016 of 2014; Rashida Abdul Karim Hanali and Another versus Suleiman Adrisi HCMA No. 9 of 2017; Grace Nakiyemba Nakate versus Ssemugenyi Goefrey & 4 others HCCS No. 397 of 2016*; *Gladys Senkubuge and another versus Kibirango Joyce HCMA No. 1704 of 2019*; and *Fredrick James Jjunju and another versus Madhavan Group Ltd and another HCMA No. 688 of 2015.*

[14] In reply to the preliminary objection of counsel for the Respondents, counsel for the Appellant submitted that a court order remains valid unless it is appealed, set aside, reversed or reviewed by court. In the instant case, the Respondents did not bring any application to set aside the order of the court extending time for service of the summons or appealed against it. In support of his argument, counsel relied on the case of *Housing Finance Bank Ltd and another versus Edward Misisi CAMA No. 158 2010.*

[15] On the merits of the appeal, counsel for the Appellant submitted that the Respondent had the legal duty to extract and serve the taxed bill of costs duly sealed and stamped as a successful party. According to counsel for the Appellant, the subsequent actions were illegal, rendered the bill a nullity and the court should set it aside. Counsel further submitted that the Registrar taxed the bill of costs without the mandatory pretaxation meeting, the Appellant was denied the opportunity to fairly participate in the taxation of the bill of costs and the taxed amount were extremely high and prejudicial to the Appellant. Counsel argued that the bill arose from a judicial review application which would never have attracted such excessive award. In support of his arguments, counsel for the appellant relied on the case of *Makula International Versus Cardinal Nsubuga and Another (1982) HCB 11*.

[16] On the merits of the appeal, counsel for the Respondents submitted that the learned Deputy Registrar properly exercised her discretion and adhered to proper procedures. Counsel submitted that there is no reason why this court sitting as an appellate court should interfere with the discretion of the Deputy Registrar. Counsel relied on the case of *Mbogo and Another versus Shah (1968) EA 93*; *Halderkiimar Mohindra versus Mathuradevi Mohinda, Civil Appeal No. 34 of 1952 EACA*; *HK Shah &Another versus Osoma Allu (1974) 14 EACA*; *25MB. Patel versus R. Gottifried (1963)2o EACA, 81*; *Hajji Nadin versus Ben Kiwanuka SCCA No. 12 of 1991*; *Uganda National Bank versus National Insurance and Another (SCU) Civil No. 28 – 95*; *Banco Arabe Espanol versus Bank of Uganda SCCA No. 8 of 1998.*

[17] On pretaxation meetings, counsel for the Respondents submitted that despite their effort to reach out to the Appellant's counsel, through numerous phone calls and letters proposing to hold pretaxation meetings, there was no response from the Appellant.

[18] On whether the Appellant was given an opportunity to be heard, counsel for the Respondents submitted that the Appellant was given various opportunities to attend the taxation hearing, but failed to attend. According to counsel for the Respondents, the Appellant and his counsel did not show that they were prevented by any sufficient reason from appearing for the taxation hearing.

## **Consideration and determination of the court:**

# Consideration and determination of the preliminary objections:

[19] On the preliminary objection by counsel for the Appellant that the affidavit in reply was filed out of time, the Civil Procedure Rules do not provide for time within which an affidavit, in an appeal of this nature, to be filed. However, any affidavit in reply has to be filed within reasonable time to enable the opposite party a fair opportunity to respond. The timelines provided for in Order 12 rule 3(2) of the Civil procedure Rules which counsel for the Appellant relied on, are only applicable to applications filed after scheduling conference. This appeal is not such application.

[20] I am not persuaded by the decision in the case of *Stop and See (U) Ltd* (supra) and the case of *Springwood Capital Partners Ltd* (supra) which were relied upon by counsel for the Appellant. In those cases, the court was of the view that the 15 days within which a Written Statement of Defense has to be filed should also apply to affidavits in reply. In a more recent decision of *Dr. Lam-Lagoro James versus Muni University HCMC No. 0007 of 2016,* where the affidavit in reply was filed six weeks from the date of service of the application. Counsel for the applicant raised a similar preliminary objection that the affidavit in reply was filed out of time. Counsel relied on the case of *Springwood Capital Partners Ltd* (supra) and prayed that the affidavit in reply should be struct out for being filed out of time. My learned brother judge Stephen Mubiru held that:

*"Unlike a written statement of defence which serves only one purpose of disclosing the case a defendant proposes to put forward or serving as a means of disclosing the facts which support particular issues raised by each party, an affidavit can be used in a number of important ways, most often as containing evidence to support or oppose an application. The affidavit becomes evidence in the case. This is illustrated by Order 52 rules 3 and 7 of The Civil Procedure Rules which indicate that the filing an affidavit alongside a motion or chamber summons is optional, only when evidence is required in support of the* *application. Whereas a written statement of defence presents allegations of facts the defendant will rely on, an affidavit in reply presents evidence on oath. Affidavits are a way of giving evidence to the court other than by giving oral evidence. They are intended to allow a case to run more quickly and efficiently as all parties know what evidence is before the Court. Consequently, time constraints applied to defences may be misplaced when applied to affidavits."*

[21] The learned judge Stephen Mubiru further held that:

*"An affidavit in reply, being evidence rather than a pleading in stricto sensu, should be filed and served on the adverse party, within a reasonable time before the date fixed for hearing, time sufficient to allow that adverse party a fair opportunity to respond. For that reason, an affidavit in reply filed and served in circumstances which necessitate an adjournment to enable the adverse party a fair opportunity to respond, should not be disregarded or struck off but rather the guilty party ought to be penalized in costs for the consequential adjournment."*

[22] I am persuaded by reasoning in the case of *Dr. Lam-Lagoro James* (supra), in as far as, time of filing affidavits in reply in applications, other than those specifically provided for in Order 12 rule 3(2) of the Civil procedure Rules, are concerned.

[23] Be that as it may, the court record clearly shows that the Appellant was served with the affidavit in reply and he even filed an affidavit in rejoinder. He did not demonstrate any prejudice that he could have suffered as a result of the affidavit in reply being filed 55 days from the date of service of the Chamber Summons.

[24] I therefore find that the preliminary objection of counsel for the Appellant is without merit. It is accordingly overruled.

[25] On the preliminary objection which was raised by counsel for the Respondents that the order of this court extending time of service as being void ab initio, it is not in doubt that on the 11th January 2022 this court granted the Appellant leave to serve the Respondent with the Chamber Summons out of time. There is no appeal against that order of this court or an application to review the order. As far as this court is concerned, it is *functus officio* on the matter. I therefore find that the preliminary objection raised by counsel for the Respondents is misconceived. It is accordingly overruled.

## Consideration and determination of the merit of the appeal:

**Ground 1:** The bill of costs, the taxed bill and the taxation ruling/order was not served onto the Appellant.

[26] The court record shows that the Appellant was served with the bill of costs on the 18th December 2020at about 10.00am by a Mr. Aryatwakira Kefesi, a process server working with M/S K&K Advocates. An affidavit of service was filed on the court record. The Appellant's lawyers duly acknowledged receipt of the bill of costs by stamping and signing on it. The claim of the Appellant that he was not served with the bill of costs is therefore unfounded.

[27] On the arguments of counsel for the Appellant that the Respondent had the legal duty to extract and serve the taxed bill of costs duly sealed and stamped as a successful party and that failure to do so renders the bill a nullity, counsel did not cite any law in support of his argument. Order 21 rule 7 of the Civil Procedure Rules which counsel for the Appellant purported to rely only relate to preparation of decrees and orders. I therefore find that this ground of appeal has no merit.

**Ground 2:** The bill of costs was taxed without first conducting the mandatory pre – taxation hearing.

[28] Regulation 13A of the Advocates (Remuneration &Taxation of Costs) Regulations S1 123 1982 as amended by SI 7 of 2018 provides that:

*"Pre-taxation meeting of advocates or parties*

*(1) The advocates for the respective parties or the parties themselves, if unrepresented, shall jointly identify the costs, fees and expenses on which they agree, if any, before the taxation of a bill of costs.*

*(2) For every taxation, the taxing officer shall record the costs, fees and expenses that are identified in sub-regulation (1) if any, and then proceed to tax the costs, fees and expenses on which there is no agreement, if any."*

[29] The purpose of the pre – taxation meeting is to enable the parties to jointly identify the costs, fees and expenses on which they agree on, if any, before the taxation of a bill of costs. Where the parties fail to agree on the bill or where one of the parties refuses to participate in the pretaxation, after attempts being made by the opposite party, the taxing officer has to tax the bill.

[30] In the instant case, counsel for the Respondents clearly tried to reach out to counsel for the Appellant in order to conduct the pretaxation but counsel for the Appellant was not forthcoming. The claim by counsel for the Appellant that they were not able to participate in the pre - taxation because Dr. James Akampumuza was unwell and that other counsel were engaged is not sustainable. The law firm of counsel for the Appellant, as per their own letter head, a copy of which is on the court file, shows that there are 3 lawyers in their law firm. At least one of the lawyers in the law firm should have participated in the pre - taxation.

[31] In addition, the Respondents' lawyers wrote to counsel for the Appellant requesting to meet for the taxation. If indeed counsel for the Appellants genuinely wanted to participate in the pretaxation, but were only engaged, they should have written back to counsel for the Respondents proposing another date.

[32] I therefore find that the Deputy Registrar did not commit any illegality in proceeding to tax the bill after counsel for the Appellant refused to participate in the pretaxation. This ground of appeal therefore has no merit.

## **Ground 3:** The Appellant was denied the right to a fair hearing by not being given an opportunity to participate and oppose the bill of cost.

[33] The court record shows that on the 15th March 2021 when the matter came up for taxation before the Deputy Registrar, Mr. Tukwasibwe Derick, counsel for the Appellant was in court. The matter was adjourned to the 14th April 2021 at 11.00am. On the14th April 2021 at 11.00am when the matter came up for taxation both the Appellant and his counsel did not appear in court. In his affidavit in support of this appeal, Mr. Derick Tukwasiibwe deponed that he was not able to attend the taxation because he was attending another case. No explanation was given why the Appellant himself did not appear in court to inform the Deputy Registrar accordinly or why another lawyer from the same law firm did not attend the taxation since they were aware of the date of the taxation.

[34] In my view, the Appellant and his lawyers opted not to attend the taxation. The Appellant cannot be heard to complain that he was not given a fair hearing and yet opportunity was availed to him but he opted not to attend the taxation. Regulation 54 of the Advocates (Remuneration &Taxation of Costs) Regulations permits the taxing officer to proceed to conduct taxation ex parte in default of the appearance of either or both parties or their advocates.

[35] I therefore find that the Deputy Registrar did not commit any illegality in proceeding to tax the bill ex parte after counsel for the Appellant refused to participate in the taxation. This ground of appeal therefore has no merit.

**Ground 4:** The learned Deputy Registrar erred in law and fact when she taxed the Respondents' bill not in accordance with the law.

**Ground 5:** The learned Deputy Registrar erred in law and fact when she awarded the respondent UGX 15,555,600/= as costs, in a judicial review application, which was manifestly harsh and excessive in the circumstances, without taking into account the governing rules.

[36] In *Makula International Ltd Versus His Eminence Cardinal Nsubuga and Another (1982) HCB 11* the Court of Appeal held that:

*"According to decided cases, the taxing officer should, in taxing a bill, first find the appropriate scale fee in Schedule VI (sometimes referred to as the basic fee), next, he should consider whether that basic fee should be increased or reduced. He should give reasons for deciding that the basic fee should be increased or decreased. See: Arthur v Nyeri Electricity Undertaking [1961] EA 492 at P. 494. When the taxing officer has decided that the scale fee should be exceeded, he does not arrive at the figure which he awards by multiplying the scale fee by a multiplication factor, but places what he considers a fair value upon the work and responsibility involved. See: Steel Construction and Petroleum Engineering (E. A) Ltd v Uganda Sugar Factory Ltd [1970] EA 141 at p.144F. Lastly he taxes the instruction fee either by awarding the basic fee or by increasing or decreasing it."*

[37] In this case, the Deputy Registrar, in her ruling stated that:

*"On item one, I note that this was an application for judicial review. Regulation 7 sixth schedule provides that instructions fees shall not be less than 3,000,000/=. Considering this case, the court awards instructions fees of UGX 8,000,000/=. The rest of the items are taxed as indicated in the bill of costs. All in all, the bill of costs has been taxed and allowed Ugx 15,55,600/= (Fifteen Million, Five Hundred and Fifty-Five Thousand, Six Hundred Shillings Only).*

[38] Although the Deputy Registrar decided to award instruction fees of UGX 8,000,000/= which is above the basic fee, without giving any reasons for deciding so. I have examined item 1 and 2 of the bill of costs which deal with instructions fees to oppose Misc. Cause No. 373 of 2018 and Misc. Application No. 791 of 2018. Item 1, was instruction fees to oppose Misc. Cause No. 373 of 2018, which was an application for judicial review. The 6th Schedule, paragraph 7 of the Advocates (Remuneration & Taxation of Costs) Regulations, provides that the fees shall be a sum as the taxing

officer considers reasonable, having regard to the amount of the subject matter, the nature, importance, complexity and novelty of the matter, but the fees shall not be less than 3,000,000 shillings. In this case, the application was hotly contested, counsel for the Respondents argued the issue of diplomatic immunity and made reference to several authorities including a foreign judgment. In my view, therefore, the award of UGX 8,000,000/= was not excessive. Item 2 was instructions fees to oppose Misc. Application No. 791 of 2018 was an application for a temporary injunction. According to the 6th Schedule, paragraph 9(2) of the Advocates (Remuneration & Taxation of Costs) Regulations, the fee is not less than UGX 300,000/=. The application was also hotly contested with several authorities referred to. I do not consider the amount of UGX 2,000,000/= which was awarded to be excessive. The rest of the items were awarded as to scale.

[39] In the end, I find that this appeal has no merit. It is accordingly dismissed with costs to the Respondents.

I so order.

Dated, signed and delivered by email this 13th November 2023

Phillip Odoki **JUDGE.**