Xtokassffl v Aliika Othzno Nifiaituzti (election petition 56 of 1998) [1999] UGHC 58 (11 February 1999)

THE IUPUBLIC OF UGARDA IN THE MIGN COURT OF UGANDA HOLDER AT M ALE. H. C. E. A NO 56 of 1998

(From Election Petition NO 2/1996)

Versus

APTELLANT

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AKISOPERI NICHARL OGOLA.

ALIEA OTHIENO EMIARUEL. INTERIN ELECTORAL COLITICION RUSPONDENTS

BEFORE- THE HONOURABLE MR. JUSTICE AUGUSTUS KANIA

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K. AGIS

This is an appeal brought under the provisions of Section 61 of the Advocates Act 1970 and under Rule 3 of the Taxation of costs (Appeals and References) Rules

(SI.-359-6). The appeal is by Churber Summons and supported by the affidavit of Afficoferi Michael Ogola. 11 By it the appellant is challenging the Raxation Order made

on 31.6.1997 by the District Registrar, Tororo High. Court District Registry. The respondent has filed the affidavit of Reuben A. A. Ovori of Owori and Company Advocates ግ ፣ 10 in reply.

The brief facts leading to this appeal are as follows. Following the 1996 Parliamentary elections in which he was an unsuccesful candidate the appellant filed election Petition NO 2 of 1996 against the 1st respondent who was the successful candidate who was declared duly elected. $15$ The appellant lost the Election Potition to the 1st despondent who had obtained a Certificate from the presiding Judge to be represented by two counsel.

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The 1st Respondent then filed his bill of costs which was taxed and passed in the sum of shs 21.292.000- of this the instruction fees of the leading coungel Mrt Owori was taxed at shs 10,000,000= while that of the second counsel Mr. 1995) 5 Natsoni was taxed at shs 4,000,000=. The appellant was dissatisfied with this taxation order hence this appeal. $\mathbb{L}[\mathbb{L}_1] \times \mathbb{L}$ The appellant filed six grounds of appeal namely:-

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- (1) The appellant who lost the Election Tetition NO NT 2 of 1996 was ordered to pay costs which were allowed at shs 21.292.000- (Twenty one million, two hundred-StOrto MS and ninety two thousand shillings only). - The taxation order occassioned a miscarriage of Justice $(2)$ because it was so excessive in the circumstances. - $(3)$ The learned Taxing Officer failed to apply the principles applied in Texation matters. Worldt under the movisions of Section $\mathcal{L} = \mathcal{L} = \mathcal{L}$ $\mathcal{L}^{\text{max}}$ - The learned Taxing Officer erred in law and in fact to of the $(4)$ when after granting instruction fees he went ahead $\cdots$ to allow claims which were covered under instruction The template the distribute with the state fees. 131 - Hyde Tid Michael Mohnel Ogola (5) The learned Taxing Officer erred in law and in fact $\overline{20}$ the putation Green made when the allowed claims which were not in necord. with the law. With the law. Vericine Cloro Lid

For recordance a four filed die : $(5)$ The learned Taxing Officer erred in law and in fact when he awarded claims for disbursements and expenditure

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increase in which ho wes

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and using of actual.

with a set the samplede t who was

which were not proved and cuthorised by law.

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MARISTRATE and also the first

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In arguing the appeal Mr. Beawite learned Counsel for the appellant summarised and constricted the above grounds to four namely :-

- The learned Taxing Officer failed to apply the principles $(1)$ of taxation as a result of which he awarded an excessive sum thus causing a miscarriage of justice. $(2)$ The Taxing Officer erred in law and fact in that after passing and allowing instruction fees he allowed items covered by the instruction fees. - $(3)$ He erred in allowing claims not proved and authorised $10$ -in law. - The Taxation order of the $\text{Taxin}_{\mathcal{C}}$ Officer caused a $(4)$ miscarriage of justice in that it was excessive in the circumstances.

In arguing ground 1 and 3 Mr. Benvite submitted that the 15 Taxing Officer misepplied the principles of taxation water. laid down in Freehard Raichard Ltd vs Quarry Services Ltd $/1972/E. A. 182$ in that he failed to take into consideration the principle that costs should not be allowed to rise to such a level that the accessibility of the courts 20 is restricted to the wealthy. He submitted that given the sum of she 14,000,000= allowed as instruction fees and the locality of Tororo District the effect of the Taxing Officer's order would be to exclude litigants from the courts. Mr. Bamwite argued that there was no justification for the 25 hefty instruction fees that were allowed. He contended that counsel for the 1st respondent completed the pleadings within a week, the hearing took 42 days and not many cases

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were cited thus making it a straight forwad and simple case not warranting such a large sum in costs. He pointed out that this court has power to set aside a taxation tax a bill or order retaxation if it is satisfied that the initial taxation had been done contrary to the principles of taxation. 5 He invited this court to either set aside the taxation or retax the bill. He suggested the figure of shs 3,000,000= for both counsel as a reasonable sum.

As regards the second ground Mr. Bamwite submitted that the learned Taxing Officer having allowed instruction fees he should not have allowed other claims for work necessary for the prosecution of the case. He argued items 2-55 of the bill of costs were claims relating to work necessary for the prosecution of the case covered by the instruction fees.

He submitted that items 58,70 and 86 in the bill of costs should not have been allowed and passed because they had not been proved. Thermetively he reconsidered the figures of shal 450,000= and als 675,000= for item 70 and 86 respectively excessive and suggested the sums of shs 100,000= and shs 250,000= for items 70 and 36 respectively.

Lastly he argued that the taxation order occassioned a miscarriage of justice in that the total sum taxed of sha 21.292.000= was excessive and is likely to discourage the ordinary person in Tororo District from challenging electoral malpractices.


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Counsel submitted that the Texation also occassioned a miscarriage of justice because the order was driving the appollant to look for money he does not have and to pay a bill he should not have paid. It was counsel's prayer

that the appeal be allowed with costs." Wir. Bemwite also relied on the affidavit of Akisoferi Micheal Ogola the contents of which were reheared by his submissions. 😶

Mr. Owori learned counsel for the 1st respondent who appeared with Mr. Natsomi submitted that before interferring with sum of shs 14,000,000= allowed in instruction fees the $10$ appollent should satisfy the court that the Taxing Officer exercised his judicial discretion with irregularity warranting interference by this court. He submitted that this court can interfer in very exceptional cases as was held in the case of Thomas James Arthur vs Kyeri Electricity undertaking 15 $/1961/\text{E. A. }492.$ IIr. Owori contended that the learned Taxing Officer rightly applied the principles of taxation and that the award in the instant case was in consonance with other cases. He cited Mise, App - HO 911/(b) /1997 Halmot where the leading and second counsel 20 vs Adycbo & 2 others were allowed shs 15.942.000 and shs 6,000,000= respectively in instruction fees. In. Oweri argued that given the admitted political importance of election potitions the taxation was proper mercso when no error is shown to have been committed by the Taxing Officer. $25 -$

Counsel agreed as the general statement of the law that C instruction focs cover all other expenses of things done in the prosecution of the ease but argued the Advocates Renumeration & Texation Rules 1982 as amended by S. I 3/93 allows an Advocate

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to charge for'fixings like/perusals and drawings.

Mr. Owori contended that counsel for th^ app-ll<-'-lu \* <sup>J</sup>- consented to items 2-55 during the taxation he could not turn round now and say they were wrongly ello<.-od. .juomittoc. that cis the successful party the 1st respondent was <sup>5</sup> entitled to th.; costs under items 5" and that as for items 70 and <sup>86</sup> the appellant did not in his affidavit' in support of his appeal challenge the reasons given by. the Taxing Officer for granting those awards.

Mr. Owori finally submitted that there was no ease of 10 miscarriage of justice as there was no error apparent shown to have existed on th^, ,f :cu of the record. He invited me not to interior with the taxation unless there has boon a misapplication of the principles of taxation. Ho prayed for the dismissal of the- appeal with costs. Mr, <sup>15</sup> Hatsomi learned counsel appearing with Mr. Owori fully associated himself with the submission of the latter, and added that the learned Taxing Officer rightly and • judiciously exercised his discretion in awarding shs 14,000,000= in instruction fees to both counsel. 20

As regards the- first ground Hr< Bamwitc submitted that the • Taxing Officer failed to apply the principles of Taxation as a result of which he awarded an excessive sum thus causing a miscarriage of justice.

In matters of taxation the Taxing Officer exorcises his 25' discretion . no is however expected to exercise this discretion judiciously along certain established urineinics,

Those principles which have been laid down in the cases of Frenchand Raichand Jtd & Ann vs Guarry Services and adopted in Mahule Interactiona 1 Ltc vs Cordinal Manbuga & Anr /1992/HOB 1 are generally $\mathrm{Ult}_\mathbb{C} \mathbb{C} \mathbb{C} \mathbb{C} -$

> (a) costs should not be allowed to rise to such a $\texttt{l.vcl}$ as to confine access to the courts to the wealthy.

- (b) A successful litigant ought to be fairly reimburged for the costs he had to incur. - (c) The general level of renumeration of Advocates must be such as to attract meruits to the proffussion and - (d) So far as practicable there should be consistency in awords made.

The above are just guidelines for the Taking Officer to exercise his powers of taxing judiciously. There are other 15 factors like the value of the subject matter, the prolimity of the proceedings, the complex nature of the case and the fall of the value of money that may be in the back of the mind of the Taxing Officer when deciding on the quantum of costs 20 to tax and allow.

In his taxation ruling the learned District Registrar outlined the principles outlined above. He was therefore in my view alive to the need to follow those principles in his ruling. On page 8 of the ruling he stated he was making the ruling well aware that even the legislature recognised the need to 25 keep costs in Election Fetitions affordable by having them and heard in their local jurisdictions from where they I CERTIFY THAT A TRUE COPY OF THE ORIGINAL originate.

<span id="page-6-0"></span>**STRATE** On the same page he adverted to SI MO 3/1996 which provides for the method of providing different fees for different types of jobs performed by Advocates thus applying the principle that the successful party should be adequately reimbursed for whatever he had to pay. On page 9 of the $5$ reling the learned District Megistrar dwelt at length the importance and the tedious nature of election potitions generally and decided to ache the awards of shs 10,000,000= end she 4,000,000= to the load counsel and the second counsel of the 1st Respondent repacetively because this particular. $10$ Fetition won't into full hearing and took a total of $4\frac{1}{3}$ days. In this, in my view, though he did not put it in these words he was applying in practice the principle\_that Advocates past be properly renumerated to encourage young $15$ recruits into the proffession. With regard to keeping in stop with cuburds in similar cases the learned District Registrar referred to the cases of Godfrey M Odych vs Engola & Anr M. S. Mection Petition NO 2/1996 where a figure of shs 9.146.000= was allowed on the Petition having been

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dispesed of on a preliminary objection and Causar M. Tokoma 20 vs: Interim Electoral Commission & Anr Plaction Potition 3/1996 where she 8.512.000= was awarded where the Potition had been disposed of in a similar manner. From the ruling of the learned District Registrar I find he adverted to the principles laid down in Premchand Raichand Ltd & Anr vs 25 Quarry Services & ors (Supra) and Mobula International Ind vs Continel Nanburg & Ann (supra) and applied these principles in arriving at the eward of the instruction fees.

A judge on appeal may interfer with a texation order by either setting it aside, ordering retaxation on even tax it himself.

This is the position in the following cases to which I was very helpfully referred to by it. Denwite and ir. Owori; Micholas Noussos va Gulan Lassein Virgui SCOA 6/95. Intelet Notambi & ANY vs Sol. Thetries 303A 11/94 and Attorney Con. rol vs Uncude Elauket Hamifacturers (1973) Ita $300 \text{Å}$ . $17/1993$ .

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However the count should not interfer with the chercise of the disorction of the Maxing Officer merely because the coats allowed are high. In Phones Jenes Arthur vs Hyeri Electricity under taking /1961/ 3.4. 492 the defunct court of $10$ Appeel For Best -frien refused to interfor where the costs allowed were four times what should have been allowed. The court held that it could only have interferred if exceptional circumstanees existed. Must bes been held to be if the costs allowed have been manifestly excessive or low; See Micholas $15$ Jouanos vs Gulan Russain & Ann Supra. Or that the texation ras dono in disregard of the principles of texation. In the linetent case it has not been demonstrated to my satisfaction that the instruction fees allowed were manifestly excessively high or that the learned District Registrar failed to apply 20 the principles, of taxation. On the contrary taking orders in similar cases, including NO Rise. Application NO 9113/1997 Henry Malmot vs George Cosmus Adyebe & 2 ors where the aggregate thered costs strad at 30.421.000= , the costs here are very modest indeed. Ex. Beawise argued that the former could not 25 be used as a yard stick because it is on appeal but he did not eite any decision which is final. In the result I shall not interfor with the learned District Registrar's instruction fees of she 10,000,000= and she 4,000,000= awarded to the 1st respondent's loarned Counsel and 2nd Counsel respectively.

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The first ground of appeal therefore fails.

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regards the second ground which Mr. Bemwite argued he $\Lambda\mathtt{S}$ complained that the Baxing Officer erred in law and in factin allowing items 2-55 in the bill of costs contrary to the $\overline{5}$ law as laid down in <u>Rebumbi</u> & Anr Sole <u>Blectrics</u> after he had (Supra) and Paden vs Osman (Supra) allowed instruction fees which cover all other work necessary for prosecuting the case. Mr. Oweri submitted that the Taxing Officer in his ruling excluded items $2-25$ complained of. We argued in the alternative that even if 10 the Taxing Officer had included and allowed these items he would have properly done son as these items are provided for in the 6th Schedule of the Advocates Remuneration and Taxation Rules 1982 as avended by S. I. NO 3/1993.

I have carefully read the ruling of the learned District $15$ Registrar. In it he referred to the submission of the then learned Counsel for the appellant objecting to allowing items 2-25 for the receons that they were included in the Instruction fees which is precisely the ground raised before this court. At paragraph 2 of his ruling the learned -20 District Registrar agreed with this submission and stated that in awarding the instruction fees he was taking into account the fact that the said items were part of Instruction fees. What this was what the Taxing Officer did is borne out by the hand written note he unde at the right hand top of page 3 of the bill of costs to the effect that the items should be set off as they constituted item 1 being the Instruction fees. From the record and the ruling I amof the view and find that the Taxing Officer displowed items 2-25 of the bill of costs which hc rightly held to be part I CERTIFY THAT of the Instruction fees. **THIS** $\mathbf{S}$ A TRUE COPY OF THE ORIGINAL

**MAGISTRATE**

This second ground of apparl must therefore fail.

Regarding the third ground of appeal Nr. Brawite argued that itch 58 relating to the proceedings of the 17.9.1996 should not have been allowed to the 1st respondent as the costs of that day were awarded to the appellant in any event against the Electoral Commission. Mr. Oweri on his part contended that as the overall successful party the 1st respondent was entitled to take the costs of 17.9.1996.

As for items 70 and 86 the complaint of Mr. Beawite is that they are excessive and lower figures of she 100,000- and she 250,000=: should have been allowed instead of she 450,000= and she 675.000= respectively. He also contended that alternatively for item 86 no ewerd ought to have been made after the Taxing Officer had made a finding that witnesses in respect of whom the claim is made were not necessary

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I agree with Mr. Owori withit a successful party is entitled to costs as these follow the event. But these must be emended. In respect of item 70 relating to the proceedings of 17.9.1996 the costs were swored to the appellant against the 2nd respondent in any event. It can't be decided whether $-20$ because the 1st respondent did not ask for costs or no costs were awarded to him. The effect of the order of the learned trial Judge in my view was that whatever outcome of the Fotition the appollant would be paid costs of that day by the Electoral Commission. The remedy of the 1st Respondent $\cdot_{25}$ was either to apply for the review of that order or to appeal against lit His remedy did not lie in filing a bill in respect of the proceedings of 17.9.1996.

I CERTIFY THAT THIS IS A TRUE COPY OF THE ORIGINAL **MAGISTRATE**

I would Whereflowe allow the appeal on this item and set cside the order allowing she 450.000- under item 70.

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As for item 85 the 1st respondent elemed she 2.370.000= which was allowed at she 675.000= at the rate of she 150.000= | per day. The Taxing officer-allowed this only in respect of the 1st respondent having disallowed the whole of the claim in respect of the witnesses and were not necessary on rightly so after finding vienesses this occassion. The ground and the only ground on which $10$ this court is being invited to interfer with this figure is that it is onecesive. As already discussed above with the case of Thomas Jamas Arthur vs Ryeri Electricity Undertaking (Super) the court will interfor with the quantum of damages in very exceptional circumstances. The special circumstances envisaged are that the quantum 15 has been allowed contrary to the principles of Taxation or that it is nonifestly excessive or manifestly low. According to Mr. Brawite the appropriate figure should Mayo been she 250,000= short of submitting the figure is exaggerated he did not to my satisfaction demonstrate 20 that item 86 was allowed contrary to the principles of Texation or armifestly excessive. I accordingly find my self unable to interfor with the texing of item 85.

As Ir. Benwite only addressed me on items 2-25, 58,70 and $06$ I take it that the appellant is satisfied with the rest of the items of the bill of costs.

Lastly Mr. Brawite complained that the total of shs. 21.292.000= in taxed costs was excessive and occassioned a miscarriage of justice because the appellant is forced

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to look for the sum which he does not have and to pay for what he should not pay in the first place. He also argued that such an award will in the future discourage ordinary persons from Toword District from chellenging electorel malpractices.

Not provery decision with which a party is dissutisfied can be held to occassion a miscarriage of justice. A decision of a court is said to occassion a miscarriage of justice if there is a prime facie case that an error has been made on the record; Notive Clama vs. Frensiske Amadhe & 2 ors. /1979/ HOE 222. A miscouringe may also be said to have been occassioned where on the record there have been misdirections on matter of fact or law or where has been unfairness in the course of the trial. See Fide Birchwa vs Sulcinem Ricowelene NOCS NO 2/92 (Unreported).

That the appellant does not have the money to meet the costs of his potition and that the ordinary citizen may be put off from challening cleateral malyanetices are not the criteria in determining whether the decision-has occassioned a miscarriege of justice. The implementative of a litigant or of 20 the public for that matter should not present an excuse to deny a successful party his costs properly carned. Having hold above that save for item 58 the learned District Registmer tested the bill of costs according to the universally accepted principles of traction. This ground $\cdot. 25$ of appeal accordingly fails,


In tho result, save for having disallowed item 70 of the bill of costs for the sum of she 450.000= tho appeal must fail on all other /'rounds and items, Tho appeal is. . accordingly dismissed with a,n order that the intinl taxation order\* for shs 21,202,000= shall be adjusted by the <sup>5</sup> svm of shs 450.000= disallowed under item <sup>70</sup> of tho bill . of costs. The 1st respondent'shall tekc~the 3/4 <sup>i</sup> CERTIFY THAT THIS . IS | 11.2.1999 A TRUE COPY OF THE ORIGINAL | ............... MAGiSTPATZ'............. I '