Zonobia v Lubega & 4 Others (Taxation Reference 123 of 2021) [2023] UGHC 412 (8 July 2023)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA TAXATION REFERENCE NO.123 OF 2021 (ARISING FROM MISCELLANEOUS APPLICATION NO.02 OF 2020) (ALSO ARISING FROM MISCELLANEOUS APPLICATION NO.100 OF 2017)**

### **(ARISING FROM CIVIL SUIT NO.125 OF 2017)**

**ZONOBIA NANFUKA:::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT**

### **VERSUS**

**REV. FR. FRANCIS LUBEGA REV. FR. BONNY KALYESUBULA REV. FR. THOMAS SSEMPALA BONNY NAMYGERA MUSA KAYONGO::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS.**

*Before; Hon. Lady Justice Victoria Nakintu Nkwanga Katamba*

## **RULING**

This taxation Appeal was brought by way of chamber summons under Section 62(1) of the Advocates Act Cap 267 and Regulation 3(1) of the Advocates (Taxation of costs)(Appeals and References) Regulations S. I No.276-5 seeking orders that;

- 1. An appropriate deduction be made to the bill of costs as taxed by His Worship J. Deo Ssejemba, the taxing officer in Miscellaneous Application No.100 of 2017. - 2. Costs of the Application be provided for.

The affidavit in support of this Application was deponed by Namusoke Jacquiline who states as follows, that;

- 1. Miscellaneous Application No.100 of 2017 was dismissed with costs to the Respondents. - 2. The Respondents through their Advocates filed a bill of costs estimated at Ugx.38,461,500/=.


- 3. The Learned Taxing Master erred in law and fact when on 24th May 2019, he taxed the bill exparte and allowed it at Ugx.27,778, 970/=. - 4. The Learned Taxing Master did not exercise his discretion judiciously as required by the precedents and principles considered while taxing the bill thereby awarding a fee which was manifestly excessive, unfair and unreasonable. - 5. The Learned Taxing master erred in law when he allowed costs on items that were not in line with the regulations governing taxation of costs. - 6. The award was unreasonable and not proportionate to the work done. - 7. The instruction fees awarded were excessive.

An affidavit in reply was deponed by the 1st Respondent, Rev. Fr. Francis Lubega, wherein the states as follows, that;

- 1. The Applicant's lawyers were served with the bill of costs, the taxation hearing notice and a letter on the 4th April 2019, requesting for pre-taxation hearing but the Applicant's lawyers did not comply with the same. - 2. On 24th May 2019, the Applicant, her Counsel and the Respondents' Counsel attended Court for the taxation hearing and the Court stood over the matter to allow the Applicant and her Counsel to peruse the bill of costs whose copy, the Applicant's lawyer claimed to have left at office. - 3. The Applicant and her lawyer never returned to Court after the matter was stood over thus, Counsel for the Respondents applied to have the bill of costs taxed exparte. - 4. The Taxing Master exercised his discretion judiciously in reaching a figure of Ugx.27,778,970/=. - 5. The Applicant's affidavit does not specify which items were taxed contrary to the Regulations.

In rejoinder, it was stated as follows, that;

1. The bill of costs served on the Applicant's lawyers was incomplete with some items missing and even on perusal of the Court file, the Applicant's lawyers failed to find the complete bill of costs.


- 2. The matter was not stood over and that Counsel for the Applicant sought an adjournment because he could not proceed in light of an incomplete copy of a bill of costs. - 3. There was a mix up of Miscellaneous Application No.100 and Miscellaneous Application No.101 of 2017 leading to the Taxing master awarding excessive costs.

Both Parties filed written submissions.

Two issues were raised for determination;

- 1. Whether the costs should be varied. - 2. What remedies are available to the Parties.

The Respondents Counsel also raised preliminary points of law;

- 1. The Appeal is bad in law as it seeks for a strange order. - 2. The Appeal is incompetent for being supported by an affidavit of a non party.

I shall first consider the preliminary objections as raised by Counsel for the Respondents.

Submissions for the Respondents.

1. Appeal is bad in law as it seeks for a strange order.

It was Counsel's submission that the Applicant seeks an omnibus style order which is not tenable in taxation Appeals. Counsel submitted that the ideal order sought ought to have been an order setting aside or varying the taxation awards in specific items cited which was not the case.

2. The Appeal is incompetent for being supported by an affidavit of a non party.

Counsel submitted that the Appeal is incompetent because the chamber summons are supported by an affidavit deponed by a non party to the Appeal. That is; the Affidavit in support was deponed by the Applicant. Counsel submitted that Affidavits ought to be deponed by only Parties to the suit. Counsel cited Order 19 Rule 3(1) of the Civil procedure Rules in support of his submissions.


Submissions for the Applicant on Preliminary points raised.

- 1. Appeal is bad in law as it seeks for a strange order. It was submitted for the Applicant that the order sought is not strange, save for the wording or form and that the order does not differ from the common order of varying the award. - 2. The Appeal is incompetent for being supported by an affidavit of a non party.

Counsel submitted that matters of taxation are technical in nature and best understood by an Advocate. The Deponent who swore the affidavit was therefore best suited. Counsel further submitted that Advocates can swear affidavits and affidavits sworn by Advocates are not automatically defective. Counsel relied on Order 19 Rule 3(1) and the Kenyan case of kwacha Communications Limited and Another versus Pindoria Holdings Ltd and Another, CA. No.033 of 2022 to support his submissions.

Having carefully considered the submissions of Counsel on the Preliminary points of law raised, I now proceed to resolve the preliminary points raised.

### **Resolution of Preliminary objections.**

### **1. The Appeal is bad in law for seeking a strange order.**

It is my opinion that this preliminary objection largely seeks to have this Appeal dismissed on a technicality. Though the orders sought did not specifically indicate the words, "varying, setting aside or reversing the decision of the taxing master", it is my opinion that the order sought by the Applicant clear indicates that the Applicant desires this Court to interfere, vary or set aside the decision of the taxing officer. It would be detrimental to strike out the Application on such a technicality yet the Court is enjoined to administer justice without undue regard to technicalities under *Article 126(2)(e)* of the Constitution. The order sought is not ambiguous and it in my view, clearly states what the Applicant seeks from this Court.

In the result, the preliminary objection is overruled.


# **2. The Appeal is incompetent for being supported by an affidavit of a non party.**

*Order 19 Rule 3* of the *Civil Procedure Rules* does not limit a person who is not a party to the dispute from deponing an affidavit. Any party who is in the know of the facts and can prove the facts of the case, may depone an affidavit. In other words, an affidavit acts as evidence and any person though not party to the dispute, may give evidence either in support or in opposition of the suit provided their testimony is considered necessary by either of the parties to prove their case.

The affidavit in support was deponed by one of the Applicant's lawyers who is not representing the Applicant in this Application, who in my view is in the best position to adduce evidence concerning issues of taxation that are complex in nature. The law too does not place a limit on Advocates giving evidence provided the Advocate giving evidence is not representing the Party in the same case he/she is giving evidence. (see; *Regulation 9 of the Advocates (Professional Conduct) Regulations SI 267 – 2* and *Hajji Sulaiman kizito versus Kampala Financial Services Limited and others, HCCS. No.30 of 2016*).

For the reasons stated above, the preliminary objection is also without merit and is hereby over ruled.

### **Merits of the Application.**

### **Submissions on the merits of the Application.**

#### **Submissions for the Applicant.**

Counsel relied on the case of Hussan Bukenya versus Dr. Richard Ssembatya, Taxation Appeal No.7 of 2019 to support his submission on the circumstances when Court can interfere with the decision of the taxing master.

Counsel then submitted that in the circumstances a fee of Ugx. 27,778,970/= as allowed by the taxing officer was manifestly excessive, unfair and unreasonable. He


further submitted that the taxing officer allowed costs not provided for by the regulations. He further submitted that the bill of costs as submitted by the Respondents was voluminous but that a scrutiny of the bill of costs discloses the fact that some costs that were allowed with regards to Miscellaneous Application No.101 of 2017 and yet the current bill was with respect to Miscellaneous Application No.100 of 2017. Counsel referred to items No.3 to 27.

Counsel submitted that the costs in regards to items 30, 32 and 34 are not allowed by law. He further submitted that items 35,37,38,40,47,48,49,50,51,52,61 and 70 were awarded beyond the statutory limit without any justification. With regards to items 72 to 173, Counsel submitted that the fee was allowed without any proof of expenses alleged to have been incurred.

Counsel submitted the circumstances also warrant an interference with the award because the award is not commensurate with the subject matter and the bill of costs as submitted by the Respondents is intended to intimidate and frustrate the Applicant in the main suit.

### **Submissions for the Respondents.**

Counsel submitted that the bill of costs was not voluminous and the taxing officer properly exercised his discretion and within the confines of the law. Counsel further submitted that the Applicant's failure to challenge item by item is a total contravention of the law. Counsel relied on Regulation 3(1) of the Advocates (Taxation of costs)(Appeals and References) Regulations SI No.267-5 to support his submission. Counsel submitted that the Applicant failed to set forth in paragraphs numbered consecutively particulars of the items or matters or awards to which the taxing officer is alleged to have erred and as a result, the entire Application is incompetent.

### **There were submissions in rejoinder.** In addition to reiterating earlier submissions, Counsel submitted that the Applicant duly challenged the items they considered unlawful or excessive or harsh.

I have carefully considered the Parties affidavits and submissions. I now proceed to determine this Taxation Appeal.

## **Determination of Appeal.**

A party aggrieved by the decision of the taxing Officer, appeals to the Judge of the High Court. (see; *Section 62(1) of the Advocates*).

According to the case of *Bank of Uganda versus Banco Arabe Espanol [1999] 2 EA 45*, Court observed that Court will bear in mind the following principles before it may interfere with the decision of the taxing officer;

- 1. The Court will not normally interfere with the taxing officer's decision/ruling simply because it thinks it would have awarded a different figure had it been the one taking the bill. - 2. The Court can interfere if it is proved that the amount taxed was manifestly excessive or low and; - 3. The Court can also interfere if there is proof that the taxing officer followed a wrong principle in reaching his/her decision.

The case of *Makula International Ltd v. Cardinal Nsubuga and Another(1982) HCB.11* also provides for some key aspects to be considered;

- 1. The court will only interfere with an award of costs by the taxing officer if such costs are so low or so high that they amount to an injustice to one of the parties. - 2. Costs must not be allowed to rise to such a level so as to confine access to the courts only to the rich. - 3. That a successful litigant ought to be fairly reimbursed for costs he or she has to incur. - 4. That the general level of remuneration of advocates must be such as to attract recruits to the profession, and finally, - 5. That as far as possible there should be some consistency in the award of costs.


In considering the instruction fees under item 1 and item 3 which were with respect to opposition the main application for a temporary injunction vide Miscellaneous Application No.100 of 2017 and the opposition of the interim order vide Miscellaneous Application No.101 of 2017 respectively, the learned taxing officer allowed Ugx. 1,500,000/= for each.

## **Item 1 and item 3.**

On perusal of the Court file, it is my first observation is that item 1 should have made reference to miscellaneous Application No.102 of 2017 and not Miscellaneous Application No. 100 of 2017. Application No. 102 of 2017 concerned the temporary injunction and not Application No.100 of 2017. Be that is it may, it is my opinion that this error is minor. On the instruction fees taxed and allowed therein, the scale in the *sixth schedule* of the *Advocates (Remuneration and taxation of costs) Regulations* has been put in place to guide the taxing master when making awards. *Paragraph 9(2)* of the *6th schedule* provides that the instruction fees in respect of a given interlocutory application should not be less than Ugx 300,000/=. The rules specify a minimum but not a maximum. Where the value of the subject matter is ascertainable or indicated in the pleadings, calculating instruction fees ought to be arithmetic however, where the subject matter is not ascertainable, the taxing officer exercises his/her discretion on what he/she considers reasonable. (see: *Kabugo Juliet versus Uganda National Roads Authority, HCMA. No.43 of 2020*)

From the observation, the main suit concerns trespass where the value of the subject matter is not ascertainable. The taxing officer was therefore open to exercise his discretion in making the award on instruction fees.

I also do not see any reason to interfere with the taxing master's award and neither do I find an award of Ugx. 1,500,000/= manifestly high or excessive.

On item 3 as instruction fees to defend an application for an interim order, it was Counsel for the Applicant's submission that the taxing officer awarded costs with respect to Miscellaneous Application No.101 of 2017 which was included in a bill of costs concerning Miscellaneous Application No. 102 of 2017. I do not find this an error because


Miscellaneous Application No.101 was for an interim order pending the determination of the main application. In dismissing the Application for the interim order, Her Worship Aisha Nabukera observed that the costs shall be in the main Application and the main application was later dismissed with costs to the Respondents. It was therefore not an error to include it in bill of costs of Miscellaneous Application No.102 of 2017. I further do not consider allowed fee of Ugx. 1,500,000/= manifestly high or excessive.

For ease of determination of this Appeal, I shall consider all the other items.

Item 5 is not justified and it forms part of instruction fees. It is therefore taxed off.

Items 9, 10, 59 and 60 are not provided for under the regulations and as a result, they are taxed off.

Items 14, 15, 39 and 41 are taxed off because they form part of instruction fees.

Item 24, 25, 30, 31, 32, 66, 67, 68, 74, 99 are taxed off because they are provided for under preparation of the respective documents to which they relate.

On Items 75, 83, 119 and 166, I consider the same excessive. Counsel was awarded Ugx.100,000/= for each time he travelled from Kampala to Masaka and back by way of private means. Allowing a fee of Ugx. 80,000/= for the Clerk's travels for the same journey by way of public means is unjustifiably excessive. I therefore consider a sum of Ugx. 50,000/= sufficient for each of the items.

Item 97 is taxed off entirely because no reason was advanced for the Clerk's visit to the Court.

In considering items 107, 108, 109, 110, 111, 112, 114, 115, 116, 117, 118 and 169, I would like to note that the standard on these items had already been established by the


Learned taxing master in the earlier items to which the Respondents had no issue with the same. That is; transport costs for the 1st, 2nd, 3rd and 4th Respondents from Kabuwoko to Masaka was on all occasions allowed at Ugx. 30,000/= each while transport for the 5th Respondent was on all occasions allowed at Ugx. 20,000/=. However in the items cited, the fees allowed tripled yet all other factors had remained constant. I therefore consider the awards on items 107, 108, 109, 110, 111, 112, 114, 115, 116, 117, 118 and 163 manifestly excessive and they are hereby revised as follows; The allowed costs on items 107, 108, 109, 110, 112, 114, 115, 116, 117 and 163 are varied and allowed at Ugx. 30,000 each. Item 169 is also varied and allowed at Ugx. 140,000/=. Items 111 and 118 are varied and allowed at Ugx. 20,000/= each.

Items 121, 122, 123, 124, 125 and 126 are taxed off entirely because according to the Court record Counsel and the Respondents were not in Court.

Items 134, 135, 136 and 137 are taxed off entirely because the bill of costs does not indicate the circumstances surrounding the Respondents presence at Court.

On Item 168, as observed earlier, on all other occasions the Learned taxing master allowed a fee of Ugx. 100,000/= for Counsel's transport from Kampala to Masaka and back. However on this occasion he allowed a fee of Ugx. 600,000/= as transport from Kampala and back to attend a taxation hearing which in my view is manifestly high. Item 168 is hereby varied and allowed at Ugx. 100,000/=.

Item 171 provides for allowances for witnesses and local council leaders who attended the visit of locus in quo. I have had the benefit of perusing the file, specifically the locus proceedings at the lower Court. It is my observation that the attendance list only indicates the names of the parties and the Parties' Counsel as the only parties that were in attendance. The records in regards to locus do not indicate any input or participation by any other parties besides those stated. In the result, Item 171 is in my opinion inflated and manifestly high and excessive. It is hereby revised and allowed at Ugx. 300,000/=.

Item 73 is revised to 18%.

All the other items are allowed.

## **Conclusion and orders.**

The Appeal partly succeeds with the following orders;

- 1. The Appeal is allowed. - 2. The bill of costs is adjusted and allowed at 23,968,750. - 3. The Appellant is awarded costs of the Appeal.

I so order.

Dated and delivered electronically, this 8thday of July 2023.

**Signed;………………………………… Victoria Nakintu Nkwanga Katamba-Judge**