THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA AT KAMPALA
CIVIL REFERENCE NO. 147 OF 2012
ARISING FROM MISCELLANEOUS APPLICATION NO 59 OF 2012
HARUNA MUBIRU AND 3 OTHERS…APPLICANTS
VERSUS
NAKATO BUSHIRA AND ANOTHER …RESPONDENTS
BEFORE: THE HONORABLE JUSTICE SOLOMY BALUNGI BOSSA
RULING
This reference was made to a single Judge by the applicants from the decision of
the Registrar (His Worship Alex Ajiji) as taxing officer under Rule 110(3) of the
Judicature (Court of Appeal Rules) Directions SI 13-10. The reference was based
on two grounds. The first ground was that the taxed amount was manifestly
excessive. The second ground was that the learned Registrar improperly exercised
his discretion as a taxing master. The applicants prayed that the taxed amount be
reduced.
Background
The background to this application was as follows. The applicants were dissatisfied
with the decision of the High Court in Civil Suit No. 336 of 2012. They
accordingly lodged a notice of appeal and filed Miscellaneous Application No. 59
of 2012 seeking an interim order to stay execution of the orders arising out of that
suit. The application was dismissed and the respondents filed their bill of costs
which was taxed and allowed at shs. 9,152,330/= on July 23, 2012. The main
contention of this reference is item 1 of the bill of costs relating to instruction fees
to defend Miscellaneous Application No. 59 of 2012, which was allowed at shs.
5,000,000/= by his Worship the taxing officer.
Submissions of the parties
Learned Counsel for the Applicants, Mr. Muhumuza relied on the case of
Premchand Raichand Ltd. and Another v. Quarry Services of East African and
Others [1972] EA 162 in his arguments. He submitted that that case restated the
principles of taxation. One of the principles laid down in the case on which he
relied was that the Court will interfere with an award of costs by a taxing officer if
such costs are so low or so high that they amount to an injustice to one of the
parties. Relying on Rule 109(2), paragraphs 9(1) and 9(2) of the Third Schedule
of the Court of Appeal Rules, he submitted that there was no justification for
allowing such a manifestly excessive fee of shs. 5,000,000/= in respect of an
application of a routine nature that was not complex at all. He argued that shs.
400,000/= would have been a reasonable fee.
He further relied on the Supreme Court decision in Bank of Uganda v. Banco
Arabe Espanol Civil Application No. 23 of 1993, which quoted Premchand
Raichand Ltd. and Another v. Quarry Services of East African and Others
(supra) on the principles of taxation in a brief fee. He submitted that shs.
300,000/= was deemed appropriate in the former case regarding instruction to
oppose an application for security for costs. He also submitted that the applicants
and respondents were from the same family and had already paid to the
Respondents shs. 4,152,330/=.
Counsel for the Respondents did not file any submissions.
Applicable law
The principles of taxation of costs as restated by the Supreme Court in the case of
Bank of Uganda v. Banco Arabe Espanol SC Civil Application No. 23 of 1999
(Mulenga JSC) are the following:
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, applied a wrong principle. In this regard, application of a wrong
principle is capable of being inferred 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 upholding the amount allowed would cause injustice
to one of the parties.
Also in the case of Attorney General v Uganda Blanket Manufacturers (1973)
Ltd. Civil Application No. 17 of 1993 and Premchand Raichand Ltd. and
Another v. Quarry Services of East African and Others (supra) among the
principles governing taxation expounded on was that public interest requires that
costs be kept to a reasonable level, so as not to keep poor litigants out of courts.
The applicable legal provisions are found firstly the Judicature (Court of Appeal
Rules) Directions. Rule 110(3) of the Court of Appeal Rules provides that:
“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 bill reasonable”.
Rule 109(2) of the same Rules provides that:
“The costs shall be taxed in accordance with the rules and scale set out in the
Third Schedule to these Rules”.
Paragraph 9(1) of the Third Schedule to these Rules provides that:
“The fee to be allowed for instruction fees to make, support or oppose any
application shall be a sum that the taxing officer considers reasonable but shall
not be less than one thousand shillings.”
Paragraph 9(2) of the Third Schedule provides that:
“The fee to be allowed for instructions to appeal shall be a sum that the taxing
officer considers reasonable, having regard to the amount involved in the appeal,
its nature, importance, difficulty, 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.”
I have borne the above principles and legal provisions in mind in deciding on this
application.
I will start with quoting the particular order appealed against. In his decision, the
learned taxing officer recalled the principles of taxation laid down in Akesoferi
Michael Ogola v Akika Othieno Emmanuel Civil Appeal No. 18 of 1999 quoting
the decision of Premchand Raichand Ltd. and Another v. Quarry Services of
East African and Others supra. He then went on to state:
“On instruction fees, this was an application for an interim order of stay. I do
agree that it entailed some preparation and novel research but a figure of shs.
15,000,000/= is rather on the high end. Shall (sic) therefore exercise my
discretion and award a sum of shs. 5,000,000/=”
It is not clear from his ruling whether he treated this matter as interlocutory or as
final. The real test for determining this is whether the judgment or order, as made,
finally disposes of the rights of the parties. If it does, then it ought to be treated as a
final order; but if it does not, it is then an interlocutory order (See the case of
Salaman v. Warner and Others (1891) 1 QB 734 as approved by the Supreme
Court in the case of Bank of Uganda v. Banco Arabe Espanol (supra)). This also
has a bearing on instruction fees as it determines the nature of the case. The issue
for determination by the Registrar was whether he should grant an interim order of
stay of execution. From the record, it is clear that the parties understood and
treated this matter as interlocutory.
The parties agreed on all items in the bill of costs except for the instruction fees.
The proceedings were just one page, a clear indication that the matter was not
involved or complex and was very brief. The novel research alluded to by the
taxing master was not borne out by the record. In my considered opinion, it was
therefore a misdirection to take this into account in taxing the bill and failing to
take into account the fact that the matter was not complex and was clearly
interlocutory. Therefore, the learned taxing officer erred on principle in his
assessment of the fee to be allowed on instructions to appeal. He did not fully take
into account the principles and provisions of the law above quoted, thus making an
excessive award in the circumstances. On the basis of the Bank of Uganda v.
Banco Arabe Espanol SC Civil Application No. 23 of 1999 supra, an error of
principle is a substantial. It cause injustice to the applicants.
Taking all the above circumstances into account, I therefore set aside the award of
instructions fees amounting to shs. 5,000,000/= and substitute it with shs.
1,000,000/= (one million shillings only).
It is so ordered.
Dated, read and signed this day of September 1, 2013 by
S B Bossa
Justice of Appeal
Read this …day of September 2013 by her/his Worship
________________________________
Assistant Registrar
In the presence of
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