Sandhau v Noble Builders (U) Limited & Another (Civil Application 59 of 2002) [2003] UGCA 16 (11 July 2003)

Full Case Text

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Muzamiru Kihaadi ADVOCATE

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# THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA

## SITTING AT KAMPALA

## CORAM:

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#### HON. LADY JUSTICE C. K. BYAMUGISHA, JA

#### **CIVIL APPLICATION NO.59 OF 2002**

(A reference to a single Justice from the decision of the Taxing Officer dated 27/07/2002 in Civil Appeal No.41 of 2001)

# **BETWEEN**

# JASPAL S. SANDHAU::::::::::::::::::::::::::::::::::::

AND

### 1. NOBLE BUILDERS (U)LTD

**2. RAGHBIR SANDHU::::::::::::::::::::::::::::::::::::** 15

## RULING OF BYAMUGISHA, JA

This is a taxation reference brought under the provisions of **Rule 109(1)** of the Rules of this court. The rule gives a right to any person who is

dissatisfied with the decision of a Registrar in his capacity as a taxing 20 officer, to refer any matter of law or principle to a single Judge for determination as the justice of the case may require.

The applicant herein was the respondent in civil appeal No.4112001. The respondents as the successful parties filed a bill ofcosts to the tune ofs&s 504,103,900/:. Out of this amount, sl?s 500,000,000/: was claimed by both respondents as instruction t-ees. The matter came before the Registrar for taxation. On the 25th July 2002 the Registrar taxed the bill of costs and allowed it at sfts 150,085,400/=. Being dissatisfied with the decision, the applicant filed this reference seeking a variation of the order made by the taxing officer.

t0 When the matter came before me, both counsel made submissions on the law applicable to an application of this natttre. They ret-erred to a number of authorities. These are Premc hand lt:riclt:t ntl rs ()rr:r rrv Scrviccs (No.3) 1912EA 162 Perform ins Assets Recove rv Trust vs General Parts (u) Ltd S. C. C. A. No.l31200 Bank of Usanrl:r vs Birnco Arabe Esrranol rs S. C. C. A No.23l99 Kengrolv vs Megha Industries Ltd S. C. C. A

No22/2002. These authorities lay down the principles to be followed by court when determining instruction fees during taxation. I agree with the principles laid down and I shall use them as 1a guide in this application. The main issue for determination both het'e and in the lower court was the elTect 20 and iurport of cot.upirny ftrrnr No.8 lts tltr as the applicant as director and

shareholder in the first respondent. The assets and liabilities of the company were not the subject of litigation. In my view, it cannot be said that the assets of the company formed the basis of the decisions of this court or the lower court. No evidence was adduced to prove the assets of the company. I therefore agree with the submissions of counsel for the applicant that the learned taxing master erred in principle to base his assessment of the instruction fee on the assets of the company when no evidence was adduced to prove them.

$5$

The authorities available show that there is no mathematical formula to $10$ assess instruction fees. However, the factors to be taken into account are set out under rule 108(1) and (2) of the Rules of this court and the scale set out in the **Third Schedule** thereof. The taxing master was alive to the factors but it is his application of those factors to the facts of this case that has caused me concern. In my assessment, there was nothing complicated about $15$ the appeal. It was a simple appeal that was decided on only one ground of appeal. The lead judgement was only 11 pages. Therefore the amount awarded by the learned taxing master was, with respect, unreasonable in the circumstances of the appeal. I will do the best that I can take into account the principles that have been laid down and the relevant circumstances of the 20

case and reduce the amount to shs $6,085,400/=($ six million eighty five thousand and four hundred) only.

The application is allowed by setting aside the order of the taxing master and substituting it with an order of shs 6,085,400/= as the respondents bill of costs.

Dated at Kampala this. .... day of ................................... C. K. Byamugisha **Justice of Appeal**

$10$

$5$