THE REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
(CORAM: ODOKI - CJ, ODER AND KAROKORA -
JJ.S.C.)
CIVL APPLICATION NO. 5 OF 2001
BETWEEN
| 1. | PAUL K.
SSEMOGERERE} |
| 2. | ZACHARY
OLUM} :: :: :: :: :: :: ::
APPLICANTS |
A
ND
ATTORNEY GENERAL: :: :: :: :: :: :: ::
RESPONDENT
(Application from the ruling on taxation reference to a single judge
(Tsekooko, JSC) made in Civil Application No. 20 of 2002 on
02-02-2001).
RULING OF THE COURT
This is a reference brought by a notice of motion under sub-rules (7) and (8)
of Rule 105 of the Rules of this Court, which the applicants
seek an order of
the Court to vary the decision of a single judge of the Court (Tsekooko, JSC),
made on a reference to him under
sub-rules (1) and (3) of Rule 105 of the Court
Rules, which reduced the applicant's taxed costs in Constitutional Appeal No. 1
of
2002 from Shs. 351,959,000= allowed by the taxing officer to Shs.
31,959,000=.
In this ruling we shall refer to Paul K. Ssemogerer.; and Zachary Olum as the
applicants and the Attorney General as the respondent.
The background to this application is briefly that in 1999, the Parliament of
Uganda passed the Referendum and Other Provisions Act,
1999, in circumstances
which caused the two applicants, as leaders of the Democratic Party, to question
the validity of the Act.
They petitioned the Constitutional Court praying, inter
alia, for a declaration that the Act was null and void. There was no respondent
to the petition. At the hearing of the petition the respondent, who had been
served with copies of the petition as required by law,
raised four preliminary
objections to the competence of the petition and moved the Constitutional Court
to strike it out. All the
objections were upheld and the Constitutional Court
struck out the petition.
Consequently, the applicants appealed successfully to this Court which
awarded costs in their favour. They filed their joint bill
of costs claiming,
inter alia, for Shs. 1,550,000,000= as instruction fee. The taxing officer
allowed Shs. 350,000,000= as instruction
and Shs. 1,959,000= for other items.
The respondent was dissatisfied with the taxing officer's award as excessive. He
made a reference
to a single judge of this Court in respect of the award for
instruction fee only, which the single judge reduced to Shs. 30,000,000=.
The
applicants were dissatisfied with the reduction. Hence the reference by this
application.
The principles upon which this court considers an application such as the
present one are contained in Rule 105(1), (3), and (7), and Paragraph 9(2)
of the 3rd Schedule to the, Rules of this
Court.
Tsekooko, JSC. considered these principles in his ruling
before he allowed the reference made to him. The gist of this application,
however, is that he misapplied some of those principles to the facts of the
instant case.
These principles have been the subject of consideration by this Court and its
predecessors in many decisions, including the following:
Premchand
Raichand -vs- Quarry Services (1972) EA. 162 at 64; Attorney General -vs- Uganda
Blanket Manufacturers (1973) Ltd., Civil
Application No. 17 of 1993 (SCU)
(Unreported); Nanyuki Esso Service -vs- Touring Cars Ltd. (1972)
EA 500; Patrick Makumbi & Another -vs- Sole Electric (U) Ltd., Civil
Application
No.11 of 1994 (SCU) (unreported; Mukula International
-vs- Cardinal Nsubuga (SCU) (1982) HCB, 311; The Registered Trustees of Kampala
Institute -vs- Departed Asians
Property Custodian Board, Civil Application No. 3
of 1995 (SCU) (Unreported); General Parts (U) Ltd. -vs-
Non-performing Assets Recovery Trust; Civil Application No. 21 of 2000 (SCU)
(unreported); Bank of Uganda -vs- Banco Arobe Espanol;
Civil Application No. 23 of 1999 (SCU) (Unreported);
and Jaffer Brothers -vs- Departed Asians Property Custodian Board, Civil
Application No. 24 of 1999 (SCU) (Unreported).
We have also
considered this application applying the same principles.
The application is based on five grounds. Mr. Paul Ssebalu, the applicant's
learned Counsel argued them in the order in which they
are set out in the notice
of motion, beginning with the first and second grounds together. Mr. Cheberion
Barishaki, the Commissioner
for Civil Litigation in the Attorney General's
Chambers appearing for the respondent, argued the first three grounds
together in his reply opposing the application. We shall therefore, deal
with he first three grounds of the appeal together.
The three grounds are set out in the Notice of Motion as follows:
| 1. | The assessment by
the learned Justice of the Supreme Court of Shs. 30,000,000= as instruction fee
was manifestly inadequate in all
the circumstances of the Supreme Court
Constitutional Appeal No. 1 of
2000. |
| 2. | The learned Justice of
the Supreme Court having found that this case was peculiar and important, his
award of Shs. 30,000,000= as
instruction fee was low and
unreasonable. |
| 3. | The learned
Justice of the Supreme Court erred when he substituted what he thought was
reasonable instruction fee thus interfering
with the discretion of the taxing
officer. |
In his submission under these grounds the appellant's learned counsel agreed
with the seven guidelines formulated by the learned Justices
of the Supreme
Court from the provisions of rule 9(2) of the 3rd Schedule to the
Rules of this court. Rule 9(2) of the 3rd Schedule to the Rules of
the Court provides:
"(2) The fee to be allowed for instruction to appeal or to oppose an
appeal shall be a sum that the taxing officer considers reasonable,
having
regard to the amount involved in the appeal, its nature, importance and
difficulty, the interest of the parties, the other
costs to be allowed, the
general conduct of the proceedings, the fund or person to bear the costs and all
other relevant circumstances."
Guideline (ii) reads: "(ii) the nature, importance and difficulty
of the appeal." The learned counsel submitted that under this guideline
the learned Justice of the Supreme Court correctly agreed with the appellants'
contention that the applicants' constitutional appeal raised constitutional
issues at an opportune time, and that it also aroused
appropriate interest,
emotions and sentiment. Secondly, the learned Justice of the Supreme Court
recognized the importance and difficulty
of the constitutional appeal.
In the circumstances, the learned counsel contended that the learned Justice
of the Supreme Court erred to have underrated the importance,
difficulty and
complexity of the appeal by holding that research for precedents and authorities
to support the constitutional appeal
was not difficult, or that it did not
involve hard work, due to modern means of electronic communications such as the
internet.
The learned counsel further contended that the availability of the internet
notwithstanding, research made in preparation for prosecution
of the applicants'
appeal was still difficult and required skill and plenty of time, because not
all the authorities were easily
available. Wide ranging research was necessary,
which involved a lot of work. The learned counsel contended that the process
involved
pointed to evidence of hard work, complexity, and difficulty in the
constitutional appeal. Lack of knowledge to apply the new communications
technology also added to the difficulty. In the circumstances, the learned
Justice of the Supreme Court should have held that not
only was the appeal
important but also that it was difficult and complex.
Further, under the first two grounds of the application, the learned counsel
submitted that the learned Justice of the Supreme Court
did not consider
guideline (vii) under rule 9(2) of the 3rd Schedule, when he said:
"Reverting to the seven guidelines which I have already alluded to, I see
that guideline (i) is absent in the reference. The same
applies to
(vii)."
Guideline (i) reads:
"(i) The amount involved in the appeal. This is obviously quite
relevant in cases involving monetory claims. In the present case this
factor was
absent."
We agree with the learned Justice of the Supreme Court that guideline (1) did
not apply to this case.
Guideline (vii) reads:
"(vii) And all other relevant circumstances."
The learned counsel submitted that the learned Justice of the Supreme Court
ignored guideline (vii) completely. The learned counsel
contended, that by so
doing the learned Justice was, in effect, saying that there were no other
relevant circumstances to consider.
The learned counsel then posed the question:
Was it correct for the learned Justice to say that other relevant
circumstances were not important or applicable? He answered that
question in the negative, contending that it was a misdirection on the part of
the learned Justice of the Supreme
Court to say that guideline (vii) did not
apply to the case. The learned counsel then enumerated other circumstances which
he contended
were relevant and which the learned Justice of the Supreme Court
should have taken into account, but did not. There was a failure
to take into
account all the other relevant circumstances.
The learned counsel submitted that other circumstances relevant to the case
were those that happened after the Court's decision in
the appeal. These
included the lawful haste with which Parliament had passed a new Referendums
Law.
The learned counsel submitted that the fact that Parliament had to sit and
pass a new Referendum Act in such circumstances should
have been taken into
account. He contended that all these are "other relevant circumstances"
which went to indicate the importance and impact of the applicants'
successful appeal. They all fall under what was envisaged by guideline
(vii)
which, if the learned Justice of the Supreme Court did not ignore completely, as
happened, he would not have made such a reduction
of the instruction
fee.
Another circumstance the appellants' learned counsel referred to is the
peculiarity of the Constitutional Petition. He submitted that
the learned
Justice of the Supreme Court himself referred to the peculiarity of the case,
but did not say what he meant by the case
being peculiar. The learned counsel
submitted that "peculiar" ordinarily means something different
from all others. Learned counsel contended that in the circumstances the learned
Justice of the
Supreme Court contradicted himself by awarding an instruction fee
of Shs. 30,000,000= in a case which he considered to be peculiar.
In his submission under the third ground of the application, the applicants'
learned counsel referred to a passage which the learned
Justice of the Supreme
Court reproduced, with approval, from the ruling of Hon. Mulenga, JSC, in
Bank of Uganda -vs- Banco Arabe Espaniol,, Civil Application No. 23 of
1999, (SCU) (supra). The passage sets out principles which apply in a
review of taxation of costs, which counsel should bear in mind when deciding
to
make or frame grounds of a reference.
The learned counsel submitted that these principles apply to this case; and
that the learned Justice of the Supreme Court misdirected
himself by awarding a
figure lower than what the taxing officer had awarded, which the learned counsel
urged us to set aside.
Mr. Cheberion Barishaki, Commissioner for Civil Litigation, appearing for the
respondent, opposed the application. He argued the first,
second and third
grounds of the application together. He submitted that on the authority of the
Attorney General -vs- Uganda Blanket Manufacturers (1975) Ltd. (supra)
and other decided cases, it is now well established that only in exceptional
cases, will a Judge interfere with an award of
costs by a taxing officer. Such
exceptions are: firstly, where the award is manifestly excessive; secondly,
where there has been a misdirection and thirdly, where the award has been
arrived at on wrong principles. Wrong principles may be inferred from an
excessive award.
In the instant case, the learned Commissioner contended that the learned
Justice of the Supreme Court rightly interfered with the
taxing officer's award
of Shs. 350= million because it was excessive. The learned Commissioner
contended that there were other reasons
justifying interference with the award
of instruction fee. For instance, the appeal was against an interlocutory
decision, It was
the substance of the petition which the learned Justice of the
Supreme Court said was peculiar, not the appeal against the interlocutory
decision. Secondly, the taxing officer appears to have used the substance or
merit of the petition to attach a monetary value to
the case, which was wrong.
Thirdly, by reducing the award of instruction, the learned Justice of the
Supreme Court rightly followed
the principle that a taxing officer should
exercise his discretion judiciously not whimsically. See Patrick Makumbi
and Another -vs- Sole Electric (U) Ltd. (supra). The learned Justice of
the Supreme Court also followed the principles on which a judge should interfere
with a taxing officer's
award of instruction fee as laid down in this and other
decided cases, such as - Premchand Raichand Ltd -vs-
Quarry Services of East Africa Ltd. (supra); Attorney
General -vs-Uganda Blanket Manufacturers (1973) Ltd. (supra; The
Registered Trustees of Kampala Institute -vs- Departed Asians Property Custodian
Board (supra).
According to the learned Commissioner's submissions, other reasons justifying
interference by the learned Justice of the Supreme Court
with the taxing
officer's award were that the case lacked a monetary value; that the hearing of
the appeal lasted only two days;
that the appeal did not turn on complex facts
and issues, with the result that there was no exceptional responsibility placed
on
the applicants' counsel which went beyond similar cases. In the
circumstances, the learned Commissioner contended that the learned
Justice of
the Supreme Court did not err in any way in assessing the instruction fee to be
Shs. 30= million. He neither misdirected
himself, nor adopted wrong principle.
Accordingly, the learned Commissioner urged us to uphold the award of Shs.
30,000,000= as instruction
fee.
In our opinion, the conclusions and reasoning in his ruling by the learned
Justice of the Supreme Court, which are the subject of
the complaints in the
first and second grounds of the application appear to be the following:
Firstly, the appeal was argued for only two days, each side taking only one
day. With respect, we think that an appeal which lasts
two days in being heard
is neither a short nor a simple one. Although the difficulty and complexity of
an appeal cannot be gauged
only by the period it takes for hearing, we think
that the period this appeal took to be heard is a guiding factor in assessing
its
difficulty or complexity.
The second reason is that, the authorities which were relevant to the appeal
could not be said to be entirely new in constitutional
matters in this Court.
The learned Justice of the Supreme Court said that while the efforts of counsel
to do research so as to get
authorities to assist the court is appreciated, and
should be encouraged, there was nothing in the appeal which suggested that the
appellants' counsel spent a great deal of time and effort doing research. In
this connection, the learned Justice of the Supreme
Court also said
this:
"The learned taxing officer referred to some of the 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."
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 the 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.
The third reason for interference by the learned Justice of the Supreme Court
with the instruction fee assessed by the taxing officer
appears to stem from the
comparison and distinction he made between the instant case and the one of
The Registered Trustees of Kampala Institute (supra). The learned
Justice of the Supreme Court first cited what the full Court said in that
case:
"Mr. Byenkya stated the importance. We accept that the appeal was of
some public importance. However, its importance is limited to one
part of law
namely the interpretation of S.l(l)(c) [of the Act] with regard to the suit
land. We do not think that the appeal was
too complex, nor did it present more
than normal difficulty, nor indeed did it involve exceptions responsibility
which in effect
is what Mr. Byenkya sought to place on it before us so as to
attract high fees."
The learned Justice of the Supreme Court then continued:
"In my opinion, the distinctions between the application in the
Registered Trustees case and the instant application are mainly
two. The first is that in the former the appeal involved gaining property
interest by
the interpretation of the Act whilst in the latter, the appeal was
concerned with Constitutional rights involving interpretation
of the
Constitution. The second distinction is that the interpretation in the
Trustees case concerned ordinary property law whilst the latter,
is concerned with interpretation of a provision of the Constitution. But,
and it
has to be stressed that, the Trustees case was a substantive
appeal where the trial court had decided the suit on its merit, unlike in the
proceedings giving rise to this
inference where the matter was interlocutory. I
find that there are similarities in the two cases in a number of ways. In either
case the appeal lasted two days. In either case the arguments involved
interpretation of a law. In both cases there is no evidence
of exceptional
responsibility placed on counsel calling for extra ordinary industry. Nor have I
been persuaded that there were complex
issues in the appeal which go beyond
other constitutional cases."
In The Registered Trustees of Kampala Institute (supra), the
applicants referred to the full court a decision of a single Judge (Piatt, JSC)
on a reference from the Registrar as
a taxing officer. By his decision the
single Judge reduced the amount of instruction fee from 70M to Shs. 7M. Shs. 70M
had been awarded
as instruction fee by the Registrar in his capacity as taxing
officer. In its ruling the full court concluded that though the award
by the
learned single Judge was on the lower side, it was nevertheless satisfied that
it was not so low as to warrant the court's
interference, especially since the
ruling by the learned single Judge was not based on wrong principle or bad
policy.
We think that the Registered Trustees of Kampala Institute case
(supra) is distinguishable from the instant case in that the former involved
interpretation of the provisions of a statute, namely,
section 1(1)(c) of the
Expropriated Act, 1982, while the latter was concerned with interpretation of
articles of the Constitution
which, we think was of greater public interest and
placed more responsibility on the shoulders of the applicants' learned counsel.
The same considerations could not therefore, apply in assessment of instruction
fee in both cases.
The fourth reason relates to what the learned Justice of the Supreme Court
formulated as guideline (ii) from the provisions of paragraph
(2) of rule 9 of
the 3rd Schedule to the Rules of this Court. In this regard, the
learned Justice of the Supreme Court said:
"It is accepted that because the appeal raised
constitutional issues under the provisions of the current Constitution at an
opportune
time, it aroused appropriate interest and perhaps emotion and
sentiment.
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."
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 the one hand,
recognized 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 3rd
Schedule to this Court's Rules; and on the other 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, which the learned
Justice of the Supreme Court apparently equated with the
Constitutional Appeal
in question are 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, Yusufu Lule from 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.
The fifth reason for the interference by the learned Justice of the Supreme
Court may be stated as his refusal to consider guideline
(vii), which he said
like guideline (i), was absent from the reference. We have already reproduced
the wordings of guideline (vii).
With respect, we agree with the applicants'
learned counsel that it was a misdirection for the learned Justice of the
Supreme Court
to say that guideline (vii) did not apply to the reference.
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 3rd 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 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.
In the circumstances, the first and second grounds, of the application should
succeed.
We turn now to the third ground of the application. In this case, the
respondent made a reference from the taxing officer's taxation
orders of the
single Justice of the Supreme Court under sub-rules (1) and (3) of rule 105 of
the Rules of this Court, which provide:
"(105)(1) Any person who is dissatisfied with a decision of the
Registrar in his or her capacity as a taxing officer, may require
any matter of
law or principle to be referred to a Judge of the Court for his or her decision
and the Judge shall determine the matter
as the Justice of the case
may require.
(2)
(3) Any person who contends that a bill of costs as taxed is, in all
the circumstances manifestly excessive or manifestly inadequate
may require the
bill to be referred to a Judge and the Judge may make such deduction or addition
as will render the hill reasonable."
(The underlining is ours).
In our view, in order to justify interference by the Judge under these rules,
the applicant has to show:-
1) that either a matter of law or a matter of principle is involved in
the decision of the taxing officer; or
| 2) | that the bill as taxed is, in
all the circumstances, manifestly excessive or that it is manifestly
inadequate. |
| 3) | The judge shall decide the
matter as the justice of the case may require. |
Paragraph (2) of rule 9 of the 3rd Schedule, to which we have
already referred in this ruling, also requires that the fee to be allowed for
instructions to appeal or
to oppose an appeal shall be a sum that a taxing
officer considers reasonable.
In the case of Bank of Uganda -vs- Banco Arabe Espaniol
(supra), Mulenga JSC stated some of the principles on which a judge
should interfere with a taxing officer's assessment of a bill
of costs. We agree
with what he said, which was this:
"Counsel would do well to have these principles in mind when deciding
to make, and /or when framing grounds of a reference. The first
is that save in
exceptional cases, a Judge does not interfere with the assessment of what the
taxing officer considers to be a reasonable
fee. This is because it is generally
accepted that questions which are solely of quantum of costs, are matters with
which the taxing
officer is particularly fitted to deal and in which he has more
experience than the Judge. Consequently, a Judge will not alter a
fee allowed by
the taxing officer merely because in his opinion he should have allowed a higher
or lower amount.
Secondly, an exceptional case is where it is shown expressly or by
inference that in assessing and arriving at the quantum of the
fee allowed, the
taxing officer exercised, or applied, a wrong principle. In this regard,
application of a wrong principle is capable
of being referred from an award of
an amount, which is manifestly excessive or manifestly low.
Thirdly, even if it is shown that the taxing officer erred on
principle, the Judge should interfere only on being satisfied that the
error
substantially affected the decision on quantum and that up-holding the amount
allowed would cause injustice to one of the parties.."
See also Premchand Raichand Ltd. (supra) and Steel &
Petrol -vs-Uganda Sugar Factory (1970) EA. 141 at P.143; Attorney General -vs-
Uganda Blanket Manufacturers (supra); and Patrick Malambi &
Another -vs- Sole Electric (U) Ltd. (supra).
Our opinion is that
these principles apply to this case and that the single learned Justice of the
Supreme Court rightly interfered
with the discretion of the taxing officer's
assessment of instruction fee at Shs. 350M. because that amount of instruction
fee was
manifestly excessive. On that ground alone, the assessment by the taxing
officer was based on wrong principles. The third ground
of the application
should, therefore, fail.
The fourth ground of the application is that: Although the learned Justice
of the Supreme Court referred to all the rules and guidelines governing taxation
of costs in respect
of ordinary suits the absence of local authority regarding
level of costs in a similar matter has made the learned Justice of the
Supreme
Court act arbitrarily in substituting Shs. 30,000,000= in the pace of Shs. 350M.
awarded by the taxing officer.
As we understand it the substance of this ground is a complaint against
the award of instruction fee of Shs. 30,000,000= by the learned
Justice of the
Supreme Court as being too low. This is a complaint which, in effect, is common
to all the first three grounds of
the application.
Under this ground, the applicants' learned counsel submitted that in the
light of the view expressed by the learned Justice of the
Supreme Court that
this case was a peculiar one the amount of Shs. 30M. awarded by
him was arbitrary. He also contended that because of the taxing officer's
more experience and better knowledge in taxation matters,
we should vary the
award of instruction fee made by the learned Justice of the Supreme Court and
restore the taxing officer's award
of Shs. 350=.
The learned
counsel also submitted that there are precedents which support the taxing
officer's assessment of instruction fee to the
amount he allowed. The figure of
Shs. 350M. is a reasonable one. It should therefore be restored by this
court.
In opposition to the fourth ground of the application, the learned
Commissioner for Civil Litigation submitted that the award made
by the taxing
officer was rightly interfered with by the learned Justice of the Supreme Court.
There are many divided cases which
support the reduction so made. For example,
Attorney General -vs- Uganda Blanket Manufacturers (supra). In the
instant case, the learned Justice of the Supreme Court gave good reasons for the
award of instruction fee he made.
One of the reasons was that the Court should
remain accessible to the poor.
In our consideration of what should be a reasonable instruction
fee and which is consistent with justice to all the parties in the instant case,
we shall begin by referring to what the
East African Court of Appeal said in the
case of Premchand and Raichand -vs- Quarry Service (supra) as what
should be the test in assessing a brief fee (which is the same as instruction
fee under the Rules of our Court). 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."
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 Premchand 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.
In the instant case, the questions we now have to answer are: 7s the
amount of Shs. 30M. awarded by the learned Justice of the Supreme Court as
instruction fee for the applicant a reasonable sum
in all the circumstances of
the case? And, two: is the amount just to both the parties? Our
answer is that considering all the intricate balancing of interests, which we
have to make; considering all the principles, which
govern assessment and review
of assessment of instruction fee under the Rules of this Court and the decided
cases to which we have
referred in this ruling; and considering the fact that
the respondent was prepared to concede before the taxing officer the amount
of
Shs. 40M. as instruction fee for the applicants, we are of the considered view
that the figure of Shs. 60M. would be reasonable
amount of instruction fee for
the applicants, and do justice to both the parties. In the circumstances the
fourth ground of appeal
succeeds
The fifth ground of the application is that:
There were no sentiments or emotions in the submissions of counsel for the
applicants and in the Ruling of the taxing officer as the
learned Justice of the
Supreme Court stated in his ruling.
We think that this ground is adequately covered by our discussion of and
conclusions on the first and second grounds of the application.
It also
succeeds.
In the result, this application partially succeeds. It is accordingly ordered
that the award of Shs. 30M. as the applicants' instruction
fee, made by the
learned single Justice of the Supreme Court be and is hereby varied by setting
aside that award and substituting
it with an award of Shs. 60 million as
instruction fee for the applicants. The applicants shall also have half of the
costs of the
application here and before the single Justice of the Supreme Court
and before the taxing officer.
Dated at Mengo this 20th day of February
2003.
B.J. ODOKI
CHIEF JUSTICE
A. H. O. ODER
JUSTICE OF THE SUPREME COURT
A. N. KAROKORA
JUSTICE OF THE SUPREME COURT
