Ssenogerere and Another v Attorney General (Civil Reference No.08 of 2001) [2003] UGCA 30 (1 January 2003)

#### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CORAM: HON. JUSTICE A. TWINOMUJUNI, JA (SINGLE JUDGE)

## **CIVIL REFERENCE NO.08 OF 2001**

#### 1. P. K. SSEMOGERERE $15$ ...................................... 2. ZACHARY OLUM

## **VERSUS**

ATTORNEY GENERAL .................................... $20$

> (Arising from the decision of the Taxing Officer in Constitutional Petition No.3/99)

$25$

$5$

$10$

# $RULING:$ </u>

This is a reference from the ruling of this court's Taxing Officer dated $2/2/2001$ in Constitutional Petition No.3/1999. The brief background to the reference is as follows: -

In 1999, the Parliament of Uganda enacted the Referendum and Other Provisions Act, 1999. The two applicants filed Constitutional Petition No.3/99 challenging the constitutionality of the Act on the grounds that it was passed without quorum as required by the Constitution of Uganda. At

$\mathbf{1}$

5 t0 t5 the hearing of the petition, the respondent raised four preliminary objections challenging the validity of the petition. A1l the four objections were trpheld by the Constitutional Court which dismissed the petition as a result. The applicants successfully appealed against the dismissal to the Supreme Court, which ordered the Constitutional Court to hear the petition on its merits. The Court heard the petition as directed and nullified the Act with costs for two counsel to the applicants. The applicants then filed a Bill of Costs of shillings 2,508,097,000/= which included, among other items, a claim of shs.1,000,000,000/= as instruction fees for two counsel for opposing the preliminary objection for two counsel and shs.1,500,000,000 as instruction fees for two counsel for prosecuting the petition before this court. The leamed Taxing Officer taxed the Bill at shs.19,451,5001:. He declined to award any instruction fees for opposing the preliminary objection and awarded shs.8,000,000/: to each counsel for prosecuting the petition, hencr. this reference.

There are only two grounds of the reference as tbllows: -

- l. The amount of shs.8,000,000/= allorved as instruction fee lbr each counsel under item 14 of the applicants' Bill of Costs is nranifestly inadequate in all the circumstances of this Constitutional Petition No.3 of 1999. - 2. The Taxing Officer erred in law when he disallorved the instruction fees under item l0 of the applicants' Bill of Costs for opposing the respondent's preliminary obj ections,

l0

a 7

t

o

Counsel for both parties submitted written arguments. Mr. Joseph Balikuddembe, leamed counsel for the applicants submitted that it was clear from the face of the Record of Proceedings before the Taxing Officer that he failed to consider the principles and guidelines set out in Rule 9(2 ) of Schedule 3 ofthe Rules ofthis Court. That although he had gone at grcat length to explain the nature, importance and dilficulty of the petition and its relevant circumstances, the Ta,ring Officer summarily dismissed his arguments stating that a constitutional matter was nothing special and was like all other civil cases. In his view, this was a serious misdirection on the part of the Taxing Officer.

a

o

l0

[n reply, counsel for the respondent supported the ruling of the Taxing Officer which in his view, was made in accordance with principles in Attorney General vs. Uganda Blanket Manufacturers Civil Appl. No.l7 l5 of 1993 (S. C)(unreported) and Premchand Raichand and Anor vs.

- Quarrv Services of East Africa [972] E. A. 162. I-Ie invited me to tbllorv the same principles and to uphold the Taxing Otllcer's award. I tlnd it convenient to deal with this ground ofreference first. - <sup>20</sup> The principles which govern the taxation of costs by the Taxing Officer are well settled. They are contained in paragraph 9 of Schedule 3 of the Rules of this Court. They have been subject of consideration in numerous cases cited at page 3 of the recent ruling of the Supreme Court in Paul K. Ssemogerere and ZaShAry olum ys. AltOrSey General Civil Appl. No. S - of 2001(5. C.)(unreponed). The principies which govem an appellate court reviewing the decision of the Taxing Officer, such as this one, are also clearly stated in the judgment of the Supreme Court (Mulenga JSC) in Bank 25

of Usanda vs. Banko Arabe Es anol Civil Aool. No.29 of 1999 (s.c.) o (unreported). They are the same principles that leamed counsel tbr the respondent invited me to follow and I intend to apply them to the tacts of this application accordingly as I have recently applied them in a recent reference of Ishanga @ahwa Nriue Samso4 Civil Ref. No.r6 of 2003 (CA), (unreported).

! I

I propose to spend a bit of time considering the Supreme Coun rulin\_s in P. K. Ssemogerere and Zachary Olum vs. A1ternel Ggqeral (supra) because not only has it got its roots in Constitutional Petition No.3 of 1999, just like the instant application, but it is also between the same pafties over the same subject matter, but in the Supreme Court. When the Supreme Court allowed Constitutional Appeal No.l of 2002 (which arose tiom Constitutional Petition No.3 of 1999), it awarded costs to the applicants and ordered that costs incurred in the Constitutional Court would abide the result of the petition, which they had ordered to be heard on its merits. The applicants then filed a Bill of Costs in the Supreme Court claiming shs. 1,550,000,000/=. The Taxing Offlce'r reduced the figr"rre to shs.350,000,000/:. On a reference to a single justicc' of the Supreme Cor-rrt, the claim was further reduced to shs.30,000,000/=. The matter was placed before a full-bench of the Supreme Court. The main arguments tumed on whether the appeal was of such ('nature. importance and difficulty" as to deserve a higher award of instruction fees. The other issue was whether the requirement that "all other relevant circumstances" be taken into account applied to that case. t0 l5 20 25

Regarding the importance and difficulty of the appeal the learned single justice of the Supreme Court had stated:

$\mathcal{L}$

$\mathsf{S}$

$10$

"Regarding the importance and difficulty of the matter," the appeal is important in that binding opinions of this Court were expressed on some articles of the *Constitution.* But in my opinion these are matters which Ugandans, especially political leaders like the two applicants, who are conscious of civil duties would be expected to take on. There have been in this Country's recent history other equally important Constitutional cases such as A. L. Kayira and P. K. Ssemogerere vs. Rugumayo and Others, Prof. E. F. Ssempebwa vs. Attorney General, Constitutional Case No.1 of 1986; the only difference being that these two were decided at first instance, and not on appeal and therefore, there are bound to be factors to affect the amount of costs awarded."

The Supreme Court commenting on the foregoing passage stated: -20

> "We shall make only two points with regard to what the learned Justice of the Supreme Court said in this passage.

Firstly, the learned Justice of the Supreme court rightly, on 25 recognised the one hand, the importance of the Constitutional Appeal under consideration, which is one of the factors to take into account in assessing instruction fee in an appeal as provided for by paragraph (2) of Rule 9 of the 3<sup>rd</sup> Schedule to this Court's Rules; and on the other 30 hand, with respect, the learned Justice of the Supreme Court appears to have underrated the importance of the Constitutional appeal.

Secondly, the two Constitutional Cases of 1979 and 1986, 35 which the learned Justice of the Supreme Court apparently equated with the Constitutional Appeal in question are

$\mathsf{S}$


distinguishable from the Constitutional Appeal under consideration. In the A. L. Kayira and P. K. Ssemogerere case (supra), the issue was whether the National Consultative Council could validly remove the President. Yusuf Lule form office. The issue in the Prof. E. F. Sempebwa case was whether a judgment decree holder could be validly deprived of his right to enforce his decree by the Government by means of a legal notice without infringement of the right to property as protected under the 1967 Constitution."

It is clear here that the Supreme Court did not agree with the learned single justice of the court. It agreed with the Taxing Officer's finding that the case was of great importance.

$15$

$5$

$10$

Regarding the difficulty of the case, the learned single Justice of the Supreme Court had said: -

judgments in the Constitutional Appeal to support his assessment of the importance of the appeal. Again the taxing officer placed undue reliance on the fact that the many decisions from; outside Uganda were cited to the *court during the hearing of the appeal and the court relied* on these decisions in deciding the appeal. He therefore, held that the appeal was of great importance and complexity. I should perhaps mention that citation of decided cases from outside our jurisdiction is not peculiar to this case, nor is it necessarily the evidence of hard work and industry or evidence of the complexity of or difficulty of the case. *With modern methods of electronic legal* research of communication and availability in local libraries, it is easy to get these authorities from outside Uganda."

"The Learned taxing officer referred to some of the

Commenting on this passage the Supreme Court stated: -

"Perusal of the judgments in the constitutional appeal in question, which we have done, certainly bears out the view of the learned Justice of the Supreme Court to the effect that the appellants' learned counsel had to, and did, carry out research for authorities inside and outside Uganda. As far as our own research shows, some of the constitutional issues raised in the appeal were novel ones on which there was a scarcity of local authorities. Consequently, authorities from outside Uganda were not only relevant but also assisted the Court in its decision. An Example of such constitutional issue was whether internal affairs or **proceedings of Parliament were subject to judicial review in** the light of the provisions of 1995 Constitution. This was particularly relevant to the Constitutional Appeal, because in Uganda, the supremacy of the Constitution over Parliament is the norm. In the circumstances, with respect, we are unable to agree, that extensive research, though not peculiar to the appeal under consideration, was not necessarily evidence of hard work and industry on the part of the appellants' counsel in the course of preparation of prosecution of the appeal. Existence of modern electronic system of legal research alone is not enough. In our opinion, relevant knowledge and skill of use of the electronic system is also essential in order to achieve successful research results. In this regard, we find merit in the submission of the applicants' learned counsel that citation of many authorities at the hearing of the Constitutional Appeal was indicative of the difficulty and complexity of the appeal, necessitating research and hard work."

Furthermore, the Supreme Court also found that "Other relevant circumstances" applied to the case. This is what the court held: -

$\bigvee$

$5$

$10$

$25$

"We think that there were 'other relevant circumstances' in the instant case which were necessary to bear in mind in

assessment of instruction fee as required by paragraph $(2)$ of rule 9 of the 3<sup>rd</sup> Schedule; which the learned Justice of the Supreme Court did not. They were circumstances which happened before, during, and after the Constitutional appeal. The circumstances before included the fact that the appellants' petition challenged the validity of the Referendum and other provisions Act, 1999 on the ground that the Act was passed without the required quorum in Parliament.

These were circumstances preceding the petition giving rise to the petition and the appeal. Circumstances during the decision of this court were also important. For instance, binding opinions of the Court were expressed on some of the articles of the Constitution. This was accepted by the learned Justice of the Supreme Court although he did not consider it to be one of those 'other relevant circumstances' under guideline (vii). Other relevant circumstances were those that happened after the Supreme Court's decision in the appeal.

The taxing officer's reference to them, with which we agree, was put in the following terms:

> *'I have already touched on the nature or importance* of the case. I wish to add by agreeing with the counsel for the appellants that the appeal was lodged in the national interest and touches on the powers and procedure of Parliament, which *Parliament is elected by the people of Uganda. The* national interest of the appeal is, therefore, obvious, as can also be seen from the fact that as a result of this appeal, Parliament was hurriedly convened and in an unprecedented manner passed a new *Referendum law which enabled the referendum to be* held within the period stipulated by the Constitution."

All the circumstances we have referred to, in our view, all fall under what was envisaged by guideline (vii). We

$15$

$\mathsf{S}$

$10$

$25$

therefore, think, with respect, that had the learned Justice of the Supreme Court not misdirected himself in the manner we have already indicated, his assessment of the instruction fee would have been different."

The Supreme Court held that these other relevant circumstances should have been taken into account in assessing the instruction fee.

I have quoted from the ruling of the Supreme Court extensively because it is dealing with the same subject matter of this reference. The importance and 10 difficulty of Constitutional Petition No.3/99, the preliminary objection and the resulting appeal to the Supreme Court are authoritatively dealt with.

Now coming back to the instant case, when dismissing the argument that the case was of great importance and difficulty, the learned Taxing Officer 15 stated: -

$20$

$25$

$5$

"The constitutional matter was like any other constitutional matters that has come before this court. Therefore, I do not see its special importance in the jurisprudence of this country (sic). The petition was seeking an interpretation of Articles 88 and 89 of the Constitution by the Constitutional Court in order to determine the legality of the Referendum and other Provisions act No.2/99 visa-viz the Constitution of the Republic of Uganda. By its nature, therefore, the prosecution of the petition cannot be taken as difficult. It was matter of adducing evidence in court, which the petitioners did. The petition was resolved by court on the basis of the evidence produced before court. It should be noted that the petition took eight (8) days being heard merely because the petition took the normal course of suits whereby witnesses were called to give evidence in examination in-chief, then cross-examination, and then re-

examination. And precisely this takes time but the length of the days taken to hear this particular petition cannot qualify this particular petition to have been a difficult one. To me, I am of the considered opinion that it was a constitutional matter like any other constitutional matter ever brought to this court for interpretation. There was nothing special in that petition in comparison to other Civil matters, for instance ever filed in this court. In the case of Emmanuel Pinto vs. Anathius Kivumbi, Constitutional Petition No.5/97 on reference from the taxation of the taxing officer, Engwau, J. A had this to say about Constitution cases: -

'that all Constitutional Petitions are important and that the question of five judges sitting on the Coram or panel is nothing more than a Statutory requirement.'

I have looked at the record of the court and noted that there was no special authorities filed in court which would be an indicator that a lot of research was done. For the intensive study put in, one cannot measure such, but the conclusion always is the study on any legal matter has to be done before prosecuting or opposing the matter before court."

With respect, in light of the ruling of the Supreme Court concerning the $25$ same petition and the resulting appeal, this was a serious misdirection. This could be because the Supreme Court case was not brought to his attention. It is my view that, had he been aware of that decision, he would have held that the case was of great national importance and difficult to prepare. He would have awarded substantially higher instruction fee as the 30 Supreme Court did. The trial of the petition took many days. There were more than 100 affidavits filed on behalf of the respondent. Counsel for applicants had to carefully peruse them in order to be able to select which

$15$

$\mathsf{S}$

$10$

witnesses to cross-examine. Exhaustive submissions were made on the

e,yidence and the law which must have been preceded by a lot of preparation. -.\--' --It is not necessary, in my view, that "speciai" authorities be filed in courl to estabJish that research was done. Any authorities filed, even if not always to the point, is and-indicator that research was done. Thisis not to say that the

t /

o

- 5 longer the list, the greater the industry, In granting a certificate for two counsel, the Constitutional Court was certified that the work which was accomplished justified the industry of two counsel. In the circumstances, the first ground of reference should succeed. - The gist of the second ground of reference was that the Taxing Ofticer erred in law when he disallowed instruction fees for opposing the preliminary objection in the Constitutional Court. l0 - l5 20 Learned counsel for the applicants submitted, if I understood him well, that this being a very important and difficult case, he had to apply tbr adjoumment in order to get time to carry out research so that he could efl-ectively oppose the preliminary objection. In his view, if the objections had succeeded in the Supreme Court, it would have had the effect of disposing of the entire petition. In fact, the Supreme Court itself has held that the preliminary objection was very important and quite difficult to deal with. In those circumstances, the applicants were entitled to recover costs for opposing the petition in the Constitutional Court. In his view, the order of the Supreme Court in Constitutional Appeal No.1/2000 that: "the costs in the Constitutional court do abide the event" clearly implied that if the applicants succeed, then they were entitled to costs, including instructior.r fees for opposing the preliminary objection. 25

II

In reply, learned counsel for the respondent submitted that the preliminary objection was raised informally at the trial and the reply was also informal. No drawing up of new documents or filing additional authorities was required. Hence there was no extraordinary work done by the counsel for the applicants and no instruction fees could be awarded. Counsel further $5$ submitted that instruction fees for opposing preliminary objections is not provided anywhere in the rules of this court whereupon the claim was misconceived. He supported the ruling of the Taxing Officer that the claim be disallowed.

$10$

$15$

$20$

$25$

In dealing with this matter, the Taxing Officer stated: -

"I have looked at the record of the proceedings and noted that on $31/8/99$ the counsel for the respondent raised preliminary objections. The matter was adjourned to the next day, that is, 1<sup>st</sup> September, 1999 for reply. There is no list of authorities filed by counsel for the petitioners for that reply. And what was done on that day was to reply to the submissions made by counsel for the respondent. Hence there is no indication to show that a lot of research and study were made to oppose the preliminary objections. More still, the preliminary objections are not separate pleadings from the petition No.3/99 and as such I agree with counsel for the respondent that the work that was done to reply to the preliminary objections raised was work properly and necessarily done to support the Petition Wherefore no claim should be attached to it. No. $3/99$ . Accordingly, item 10 of the Bill of Costs is disallowed."

Again, with respect, this was a misdirection in light of the holding of the 30 Supreme Court that the appeal arising from the preliminary objection was important and difficult. The submission that the rules of this court do not provide for instructions fees in preliminary objections cannot be sustained in

light of Regulation 9(3) of Schedule III of the rules of this court which states that instruction fees payable:

"shall include all the work necessarily and properly done in connection with the appeal and not otherwise chargeable, including attendances, correspondences, perusals and consulting authorities."

In my judgment, opposing preliminary objections, especially of the kind we are dealing with in this case, is clearly covered by the rules of this court. $10$

In those circumstances, I would hold that the applicants were entitled to professional fees for the work which was done in opposing the preliminary objection in the Constitutional Court. This ground of appeal should also succeed.

I now turn to consider what amounts to reasonable instruction fee in the circumstances of this case. Learned counsel for the respondent invited me to follow the East African Court of Appeal decision in **Premehand and**

**Racihand vs. Quarry Service (supra).** 20

$5$

The same decision was followed by the Supreme Court of Uganda in the **P. K.** Ssemogerere Civil Application I have just discussed above. The Supreme Court discussed the decision of the East African Court of Appeal as follows: -

"We agree with what that Court said on page 164, which is $this: -$

*'The correct approach in assessing a brief fee is, we* think, to be found in the case of Simpson's Sales (London) Ltd. Vs. Herndon Corporation (1964) A. E. R. 833 when Pennyaik said: "One must envisage an hypothetical counsel capable of conducting the particular case effectively but unable or unwilling to insist on the particularly high fee sometimes demanded by counsel of pre-eminent reputation. Then one must estimate what fee this *hypothetical character would be content to take on* the brief.'

$5$

$10$

In our view, there is no formula by which to calculate the instruction fee. The exercise is an intricate balancing act whereby the taxing officer has to mentally weigh the diverse general principles applicable, which, sometimes, are against one another in order to arrive at the reasonable fee. Thus while the taxing officer has to keep in mind that the successful party must be reimbursed expenses reasonably incurred due to the litigation, and that advocates' remuneration should be at such level as to attract recruits into the legal profession, he has to balance that with his duty to the public not to allow costs to be so hiked that courts would remain accessible to only the wealthy. Also while the taxing officer is to maintain consistency in the level of costs, it is settled that he has to make allowance for the fall, if any, in the value of money. It is because of consideration for this intricate balancing exercise that taxing officer's opinion on what is the reasonable fee, is not to be interfered with lightly. There has to be a compelling reason to justify such interference. See Permchand Raichand Ltd. case (supra). Attorney General vs. Uganda Blanket Manufacturers Ltd. (supra); and Departed Asians Property Custodian Board vs. Jaffer Brothers (supra). These considerations apply to a taxing officer as well as to a single judge or a court reviewing taxed costs."

Following the decision of the Supreme Court above, I have now to answer the following two questions: -

- l. Is the amount of shs.8,000,000/: which was awarded to each counsel as instruction fees by the Ta.xing Officer a reasonable sum in all the circumstances of the case? - ) 2. Is the amount just to both the parties?

i I

o

2-i

I am of course alive to the fact that the Supreme Court was dealing with taxation in an appeal in the Highest Court of the land. Nevertheless, the decision is highly instructive because the appeal arose from a matter vl'hich was contested with the same vigour in this court. Like the Supreme Court I have to consider the intricate balancing of interests, the principles which govem assessment and review of assessment of instruction fee under the Rules of this Court and numerous decided cases. Considering tl.re iact that the Supreme court awarded shs.60,000,000/: as instruction tees tbr one counsel, I would make the foilowing decision: l0 l5

- L Shillings 8,000,000/= which was awarded to the applicants was manifestly too low. I consider an award of shs.40,000,000/: for each counsel to be reasonable instruction fee. The case was very involved, very important and difficult. It took a long time to complete. - 2. The applicants were entitled to instruction fees for opposing the preliminary objection in this court. The Supreme Court directed that costs in this court would abide the event. This court granted costs to the respondent with a certificate for two counsel. I consider an award of shs.30,000,000/= for each counsel to be reasonable fee considering that the Supreme Court awarded shs.60,000,000/: for the same matter.

l5

3. The total of instruction fees awarded is theretbre (shs.80,000,000/: + shs.60,000,000/:) total shs.140,000,000/: the costs oftaxation before the Taxing Officer and before me inclusive.

o

<sup>5</sup> Dated at Kampala this ........l. day of .... . . .2003. l