Ssenkubuge v Tamale (Taxation Reference 294 of 2019) [2024] UGCA 262 (12 September 2024)

#### <sup>5</sup> THE REPUBTIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### TAXATION REFERENCE NO.294 OF 2019

### (Arising out of Election Petition Appea! No.284of 2019)

# 10 SSENKUBUGE ISAAC APPELTANT

#### VERSUS

#### TAMATE JUTIUS KONDE RESPONDET\IT

### Coram: Moses Kazibwe Kawumi , JA.

## <sup>15</sup> Sin le Justice

#### RUTING

This taxation reference was lodged by the Applicant under Rule 110(3) of the Judicature (Court of Appeal Rules) Directions S.t. 13-10 to challenge the decision of Her Worship Agnes Nkonge in her capacity as <sup>a</sup>

20 taxing officer in a Bill of costs filed by the Respondent. particularly contested is an award of UGX.38 million allowed as lnstruction fees.

#### Background

The background to the reference is that the Respondent contested for the position of Chairperson Bweyogerere Division,Kira Municipality in Wakiso District and lost. The Respondent filed Election petition Appeal No.30 of 2016 against the Appellant. The Appellant raised objections +o the Petition which were upheld by the High Court which prompted the Respondent to file Election Petition Appeal No.75 of 2016 in the Court of Appeal.


<sup>5</sup> The Respondent was successful and the petition was referred back to the High Court for conclusion of the trial. The Respondent was awarded costs by this Court which were allowed at UGX.43, 726,6001- inclusive of UGX.38 million as lnstruction fees which su"n is contested by the Appellant.

#### Representation 10

M/S Signature Advocates represented the Appellant while M/S Lukwago & Co. Advocates represented the Respondent.

At the hearing of the Appeal held on 5th September 2024, the submissions filed by Counsel for the parties were adopted as their arguments for purposes of determining the Reference.

#### Arguments by Counsel

It was argued for the Appellant, that the Appeal was neither novel nor complex since it was a normal election appeal. Counsel further argued that the Appeal was not premised on a ntatter of law and required no reevaluation of evidence.

Counsel pointed out that Election Petition Appeals are special cases wherein ordinary principles of taxation do not apply considering that parties run for a public office and there is need not to discourage aspirants from running for public offices. Reliance was placed on Lanyero

Sarah Ochieng & EC Vs. Lanyero Molly. Civil Reference No.225 of 2013 for the proposition and the prayer for the Reference to be allowed rarith costs to the Appellant. 25

The Respondent on the contrary argued that the award of UGX.3g million was reasonable given that the appeal was complex. lt was argued thLt the Respondent raised nine grounds of Appeal which were successfully

<sup>5</sup> argued but the Reference was lodged to frustrate the Respondent from enjoying the fruits of his judgment.

Counsel cited Uganda Revenue Authority Vs. Rock petroleum (U) Ltd. CACA No.199 of 2013 to bolster his argument.

counsel for the Appellant re-iterated the same arguments in re-joinder and offered no suggestion on what would amount to reasonable fees given the nature of the Appeal. 10

## Decision

I have considered the submissions by Counsel and also perused the authorities cited in support of the respective positions. lt is evident on

- the record of proceedings that the thrust of the Appeal was on the setting aside of the decision to strike out some affidavits by the trial court. The Appeal also concerned some uncertified Declaration of Results Forms. 15 - 20 Arguments relating to the merit of the Election petition as such were not made which would have required complex analysis and re-evaluation of evidence by the Court of Appeal. This is not to imply that no work ,,vas done by Counsel for the Respondent in having the decision of the High court set aside. A reasonable fee for the work done has however to be arrived at and awarded by the court based on the Rules. - Rule 110(3) of the Judicature (Court of Appea! Rules)Directions. St lJ-10 provides that any person who contends that a bill of costs as taxed is, in all the circumstances, manifestly excessive or inadequate may require 25 the bill to be referred to a judge; and the iudse mav make such deduction or addition as will render the bill reasonable.

The guiding principles in taxing bills of costs are set out in Rule 9 of the 3'd schedule to the Judicature (Court of Appeal Rules) Directions. Rure 9(2) provides :- 5

"The fee to be ollowed for instructions to oppeal or oppose on appeol opplicotion sholl be o sum thot the taxing officer considers reosonoble, hoving regord to the amount involved in the oppeal, its noture, importance and difficulty, the interest of the parties, the other costs to be allowed, the generol conduct of the proceedings, the fund or person to beor the costs ond oll other circumstonces."

It is trite to state that no monetary value is attached to the election exercise from which the instant appeal emanates but it was a matter of importance to both the candidates, the electorate in Bweyogerere Division and the Nation at large. The Court is however also alive to the necessity for costs not to be used to discourage potential canoidates from contesting for elective positions in the event that matters end up in courts of Law. 15 20

A balance of the remuneration of advocates and successful litigants with the need to develop democratic principles should empower and encourage active political participation of citizens in good governance as

observed by Kakuru JA in Lanyero Sarah Ochieng & Another Vs. Lanyero Molly (supra). 25

Based on the above observations, the taxing officer did not arrive at <sup>a</sup> reasonable amount for instruction fees more so since the Election Petition had not been concluded. I deem the award of UGX.38 million -o be excessive in the circumstances. The instruction fee is reduced ar,d awarded at UGX. 15,000,000/= (Fifteen Million).

Page 4 of 5


<sup>5</sup> The taxation Reference succeeds with costs to the Appellant as the successful party.

Delivered and dated at Kampala this ..d1Day of ... S]<p,\*rL\*,024.

<sup>10</sup> Moses Kazibwe Kawumi JUST!CE OF APPEAL