THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA SITTING AT KAMPALA

VERSUS
1. DAMANI JYOTIBALA }
10 2. HEMA DAMANI } ……………………………… RESPONDENTS
3. ALEX TUHIMBISE }
Before: Hon Justice Stephen Mubiru.
RULING

a) Background;
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The respondents are the administrators of the estate of the late Mr. Harshad Damani. Before his
death, the late Mr. Harshad Damani was the registered proprietor of land comprised in LRV
2310 Folio 12, Singo Block 548 Plot 12 at Lwentanga and LRV 1567 Folio 9, Singo Block 551
Plot 5 at Kigwanya. Sometime during the month of December, 2912 the deceased instructed the
20 applicant law firm to negotiate and finalise the sale of that land. Pursuant to those instructions,
the applicant prepared and caused the execution of a land sale agreement dated 12 th November,
2012. The 677 hectares of land were sold at the price of shs. 1,672,860,000/= to M/s Trinity
Transporters and Distributors Limited.

25 Later on or about 18th April, 2013 the applicant received further instructions from the deceased to
prepare a “novation agreement” over the same subject matter, which in fact is a replacement
agreement of the former. Whereas in the earlier agreement the balance of the purchase price was
to be paid in a lump sum within a period of one year, in the latter agreement the parties modified
the payment to be in instalments within a period of ninety days following delivery of the
30 judgment in High Court Civil Suit No. 75 of 2013. It is the applicant’s case that the deceased did
not pay the legal fees involved in both transactions. It is on account of that the applicants
prepared and served upon the estate of the deceased, an itemised advocate-client bill of costs on
21st December, 2020, on account of those legal services.

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b) The application;

The application by Notice of Motion is made under the provisions of sections 57 (1), (2), (3), (4),
5 (6) and (7) of The Advocates Act, and Order 51 rules 1 and 2 of The Civil Procedure Rules. The
applicant seeks leave to have the advocate-client bill of costs taxed. It is the applicant’s case that
although the law firm provided legal services to the deceased, they were never remunerated yet
the estate of the deceased has refuse to comply with the demand for payment of their fees.

10 c) The Affidavit in reply;

By the affidavit in reply sworn by the 1st respondent’s, the respondents contend that the
applicants’ claim is barred by limitation. In the alternative, they dispute the claim that the
applicant carried out all activities enumerated in the itemised bill of costs. The claim presents a
15 demand for double remuneration.

d) Affidavit in rejoinder;

By the affidavit in rejoinder, the applicant contends that the law of limitation does not apply to
20 the recovery of legal fees. The respondent cannot raise as a preliminary objection, an issue that
requires evidence for its determination.

e) The submissions of counsel for the applicant;

25 Counsel for the applicant M/s Matovu & Matovu Advocates submitted that the affidavit I reply is
argumentative and prolix; it therefore ought to be struck out. There is no limitation as to the time
within which an advocate my serve a client with an advocate-client bill of costs. The applicant
having complied with the legal requirements relating to the recovery of legal fees, the application
ought to be allowed.
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 f) The submissions of counsel for the respondent;

Counsel for the respondent M/s Nile Law Chambers, Advocates and Solicitors, submitted that
5 the applicants billed the estate a sum of shs. 50,785,800/= for drafting two agreements in respect
if the same land; hence a double payment for the same work. The instructions were executed
latest 18th April, 2013 when the novation agreement was signed. The applicants did not demand
for the payment of their fees until 11th December, 2020 by which time the claim was stale. This is
because the advocate-client relationship is contractual and claims based in contract have a
10 limitation period of six years. The cause of action arose on the date the applicants completed the
work assigned to them; which was 18 th April, 2013 since that is the day the fee became
recoverable. In the alternative, the applicants have not provided any evidence of having ben
instructed by the deceased. The transactional documents indicate three law firms, including the
applicants, represented the deceased in the transaction. The role of each of the three firms is
15 unexplained. The passage of time between the date of the transaction and the date of the claim
raises suspicion of a fictitious claim. The application ought to be dismissed.

g) The decision;

20 When the matter came up before the Deputy Registrar for consideration, she decided to refer it to
this court for its opinion in light of the unusual complexity of the facts in whose context it arose.
Under Order 50 rule 7 of The Civil Procedure Rules, if any matter appears to the registrar to be
proper for the decision of the High Court the registrar may refer the matter to the Court and a
Judge may either dispose of the matter or refer it back to the Registrar with such directions as he
25 or she may think fit. At common law a consultative case stated is a procedure by which a court
can ask another court for its opinion on a point of law. A consultative case stated is made at the
discretion of a presiding judicial officer before he or she determines the case before the court.
The higher court to which the case is stated will refer the case back to the referring court with
directions to correct its decision. The decision of the Court is transmitted to the Registrar which
30 can then resume its hearing of the case, with the benefit of the legal advice of the Court. Where a

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 case is stated after aspects of the decision have been made, the Court may reverse, affirm or
amend the determination in respect of which the case has been stated.
The Registrar may reserve a question of law if satisfied that it is in the interests of justice to do
so. A consultative case stated can be made at any time during proceedings before a final
5 determination has been made. Before stating a case, the Registrar must consider: the extent of
any disruption or delay to the trial process that may arise if the question of law is reserved;
whether the determination of the question of law may; - (i) render the trial or hearing
unnecessary; (ii) substantially reduce the time required for the trial or hearing; (iii) resolve a
novel question of law that is necessary for the proper conduct of the trial or hearing; or (iv) in the
10 case of questions reserved in relation to a trial, reduce the likelihood of a successful appeal. It is
essential that the Registrar has made the necessary findings of fact on which the question(s) of
law to be stated will be based (see DPP (Travers) v. Brennan [1998] 4 IR 67 at 70). In the
meantime, the final decision in the case is suspended until the case stated has been determined.

15 The factors which should weigh in the Registrar’s decision to require a case stated to the court
are: (a) there has to be a real and substantial point of law open to serious argument and
appropriate for decision by the court, (b) the point should be clear cut and capable of being
accurately stated as a point of law and not a matter of fact dressed up, (c) the point should be of
such importance that the resolution of it is necessary for the proper determination of the case. If
20 those factors are satisfied the Registrar should state a case (see Halfdan Greig & Co. A/S v.
Sterling Coal and Navigation Corporation and A. C. Neleman’s Handel-En
Transportonderneming (The "Lysland") [1973] 1 Lloyd’s Rep. 296). On a stated case, this Court
cannot receive additional evidence. It can only examine the record from which it may make
additional findings of fact or draw inferences. It must determine the matter based on the facts
25 included in the stated case. In the instant case, three issues arise; whether the applicants
furnished proof of instructions; whether the demand for recovery of the legal fee sis time barred
and whether the applicants have complied with the legal requirements for the grant of leave.

i. Whether the applicants furnished proof of instructions;

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 It is a rule of thumb that no advocate can act for a client without receiving instructions from that
client. This is expressly stated in Regulation 2 (1) of The Advocates (Professional Conduct)
Regulations which is to the effect that; “No advocate shall act for any person unless he/she has
received instructions from that person or his/her authorized agent.” A lawyer has no authority to
5 act for anybody without instructions (see Lakhman Bhimji v. Manor Developments Ltd, H. C.
Misc. Application No. 105 of 2010). If an advocate proceeds without requisite authority, the
client may opt to have the case set aside and the advocate may be liable for costs/disciplinary
proceedings. However, a client may ratify and adopt proceedings that were started without his
authority (see Danish Mercantile Co. Ltd v. Beaumont Co. Ltd [1951] All ER 925; [1951] Ch
10 680). Receipt and acceptance of instructions by counsel constitutes a binding contract between
the client and counsel. Counsel may receive instructions orally as long as it can be proved that he
was duly given instructions.

As a general principle, the relationship of advocate and client is a relationship between two
15 contracting parties. Being contractual, its general contours are governed by the same rules that
govern the creation of a contract and so it must be proved like any other contract. The easiest
method of proving an advocate-client relationship is a written retainer agreement or engagement
letter describing the existence and scope of the advocate’s representation of the client. However,
neither a written contract nor an express appointment and acceptance is essential to the formation
20 of the relationship. The relationship may be established by mutual agreement manifested in
express words or conduct. Courts can and do use other evidence to establish the existence of the
advocate-client relationship, including the parties’ behaviour, correspondence between the
advocate and the client, invoices for services rendered, proof of payment made to the advocate,
and other relevant facts or information. There has to be some form of agreement: whether oral or
25 in writing, or inferred by the conduct of the parties.

Retainer is a term used to describe a contract between an advocate and a client for the provision
of legal services. Without a retainer, an advocate has no contractual claim to costs and
disbursements from a client. This means that a retainer does not exist unless the elements of a
30 contract are present. The relationship of advocate and client may be created when the following
three things occur: (i) a person seeks advice or assistance from an advocate, (ii) the advice or

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 assistance sought pertains to matters within the advocate’s professional competence, and (iii) the
advocate expressly or impliedly agrees to give or actually gives the desired advice or assistance.
The third element may be proved by evidence of detrimental reliance, particularly where either
party, aware of the reliance, does nothing to negate it. The establishment of the advocate-client
5 relationship involves two elements: a person seeks advice or assistance from an advocate; and
the advocate appears to give, agrees to give or gives the advice or assistance.

The party alleging the existence of a contract bears the onus of proof; the client bears the onus of
proof if he or she wishes to render the advocate liable for a breach of legal or equitable duties
10 (but there must be a causal link between that breach and loss that the client has suffered). If the
advocate is seeking to recover fees from a client, the onus is on him or her to prove the retainer
(see Coshott v Barry [2009] NSWCA 34). An advocate alleging the existence of a retainer that is
not in writing can adduce evidence in the form of words and conduct (subsequent conduct is
allowed) of the parties. In determining the existence of an implied retainer, the court will adopt
15 the perspective of the alleged client, objectively. Its existence is determined by inference from
objective facts, and not from the parties’ respective belief (because this is subjective and harder
to prove). The client’s perspective must be considered in an objective context: he cannot simply
say that he believed that a relationship of advocate and client had not arisen between him and the
advocate concerned if such a belief is unreasonable. An implied retainer could only arise where
20 on an objective consideration of all the circumstances, an intention to enter into such a
contractual relationship ought fairly and properly to be imputed to the parties.

Where the evidence consists of the advocate’s word against the client, the court ordinarily sides
with the client (when all else is equal). “The word of the client is to be preferred to the word of
25 the solicitor because the client is ignorant and the solicitor is or should be learned” (see Griffiths
v. Evans [1953] 1 W.L.R. 1424; [1953] 2 All E.R. 1364 and Murray and another v. Richard
Slade and Company Ltd [2021] EWHC B3 (Costs). Where there is a conflict as to the authority
between the solicitor and the client, without further evidence, weight must be given to the
affidavit against, rather than the affidavit of, the solicitor, (see Re Paine (1912), 28 T.L.R. 201).
30 If the advocate's authority is disputed it is for him to prove it, and if he has no written authority,
and there is nothing but assertion against assertion, the court will treat him as unauthorised (see

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 Allen v. Bone (1841) 4 Beav 493; 49 E.R. 429). Clearly, the absence of a written retainer
immediately puts the advocate at a disadvantage. In the absence of persuasive evidence, the
Court should prefer the client’s version. An advocate who does not take the precaution of getting
a written retainer has only himself to thank for being at variance with his client over it and must
5 take the consequences. It is acknowledged though that a retainer, just like any other contract,
may also be oral and could be implied through the conduct of the parties.

On the other hand, a retainer can be implied (see Blyth v. Fladgate [1891] 1 Ch 337; 60 LJ Ch
66). Although no express retainer may have been given, the relation may subsist, and its
10 existence may be inferred from the acts of the parties. The court will readily imply a retainer if,
viewed objectively, the parties’ conduct is consistent only with the advocate being retained to act
for the respondent. Mere silence though will not be enough. In Empirnall Holdings Pty Ltd v.
Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523, it was held that;

15 A Silence is usually insufficient to create any contract - the objective theory requires
some external manifestation of consent. Convenience requires communication, and
silence is usually seen as rejection. But the offeror can be bound if communication is
dispensed with. Where an offeree, with a reasonable opportunity to reject the offer of
goods or services, takes the benefit of them under circumstances which indicate they
20 were to be paid for, the tribunal of fact may hold that the offer was accepted
according to its terms. A useful analogy is found with the ticket cases. The case is not
so much one of acceptance by silence, as of taking the benefit of an offer with
knowledge of its terms and knowledge of the offeror's reliance on payment being
made in return for the work being done.
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Similarly, in Pegrum v. Fatharly (1996) 14 WAR 92, it was held that; “a contractual relationship
of solicitor and client will therefore be presumed if it is proved that the relationship of solicitor
and client existed de facto between a solicitor and another person. Upon proof of that kind it
would not be necessary to prove when, where, by whom or in what particular words the
30 agreement of retainer was made.” Proof of an implied retainer rests on proof of facts and
circumstances sufficient to establish a retainer. It is a multi-factorial consideration and is largely
fact specific. The court should ask: “Was there conduct by the parties which was consistent only
with the firm being retained as solicitors for the claimants?” (See Caliendo v. Mischon de Reya
[2016] EWHC 150 (Ch). The court may be prepared to find that there existed an implied retainer

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 if, viewed objectively, the parties acted as if such a relationship existed. A person may become a
client of an advocate if the manner in which the advocate conducts himself towards that person
gives rise to such a relationship. This is so even if there was originally no express intention to
create a retainer. An “implied retainer” is said to arise in such circumstances.
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The key ingredient is agreement to enter into a contractual relationship. An implied retainer
exists where one party expresses an offer to contract to the other party who subsequently accepts
through his acts of acquiescence (see Parrott v. Echells (1839), 3 J.P. (Eng.) 771 and Pinley v.
Bagnall (1782), 3 Doug. K.B. 155). It has been inferred in a number of situations, for example;
10 Gray v. Wainman (1823), 7 Moore C.P. 467 (receipt of payment out of court); Cameron v. Baker
(1824), 1 C. & P. 268 (failure to repudiate employment by third party); Hall v. Laver (1842), 1
Hare, 571; Reynolds v. Howell (1873), L.R. 8 Q.B. 398 (action commenced without authority);
Parrott v. Echells (1839), 3 J.P. (Eng.) 771 (leaving papers with solicitor); Anderson v. Boynton
(1849), 13 Q.B. 308 (consent to consolidation order); Southall v. Keddy (1858), 1 F. & F. 177
15 (authorising solicitor to conduct suit though not a party); Blyth v. Fladgate, [1891] 1 Ch. 337
(investment of funds by solicitor trustee). An implied retainer “[can] only arise where on an
objective consideration of all the circumstances, an intention to enter into such a contractual
relationship ought fairly and properly to be imputed to the parties” (see Dean v. Allin & Watts
[2001] 2 Lloyd’s Rep 249). The word “impute,” as used in this context, signifies the attribution
20 of an intention to enter into a contractual relationship, rather than the fact of the existence of such
an intention. Imputation involves concluding what the parties would have intended, whereas
inferences involve concluding what they did intend.

For agreed intention, the ascertainment of such intention can be by way of express or implied
25 reading of the contractual terms. In contrast, for an imputation of intention, the concern is with
the imputation of what the court believes to be reasonable in the circumstances, as an
approximation to what the parties ought to have intended (see Chan Yuen Lan v. See Fong Mun
[2014] 3 SLR 1048 at [111] and Stack v. Dowden [2007] 2 AC 432 at [126]). The fundamental
question is thus whether, on an objective analysis of the circumstances from the perspectives of
30 both the putative advocate and the putative client, an intention to enter into an advocate-client
relationship should be attributed to the parties. In this regard, it is important to note that the

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 putative client’s subjective understanding of his relationship with the putative advocate is not
determinative of whether an advocate-client relationship should be imputed in the circumstances.
The objective facts in the instant case are that the applicant never presented any fee agreement,
invoice, receipt or other documentary evidence to corroborate its claim of having been retained
5 by the deceased. Reliance is instead placed only on the fact that the two agreements name the
applicant together with M/s Lubega, Mwebaza and Company Advocates as the two law firms
which jointly prepared the two agreements for the signature of the parties. None of the two
agreements indicates on whose instructions each of the two law firms was acting. However,
Clause 16 of the agreement dated 12th December, 2012 and Clause 14 of the agreement dated 18 th
10 April, 2013 both indicate that “each party shall bear its own cost for the preparation of this
agreement.”

The implication is that each of the parties retained its own counsel to handle the preparation of
the agreement. Since there are only two law firms involved in drafting the agreement, it is fair to
15 conclude that while the applicant represented the seller (the deceased), M/s Lubega, Mwebaza
and Company Advocates represented the buyer (M/s Trinity Transporters and Distributors
Limited). Therefore, on a balance of profanities, the applicants discharged the onus placed upon
them to prove the retainer; there existed an advocate-client relationship between the applicants
and the late Mr. Harshad Damani on the basis of which the applicants rendered him legal
20 services.

ii. Whether the demand for recovery of the legal fee sis time barred;

The instant claim lies in contract, because there must have been a contract of retainer during the
25 time that the applicant acted for the respondent as his advocate and incurred the costs and
disbursements sought to be recovered. An advocate’s cause of action to recover fees arises either
in contract or quasi-contract (see Coshott v. Lenin [2007] NSWCA 153). Being a claim in
contract, the limitation period for recovery of advocates’ fees is governed by section 3 (1) (a)
The Limitation Act which specifies that there is a general limitation period of six years from the
30 date on which the cause of action accrued. In the case of such claims founded on contract, time
for limitation purposes runs from the date of breach (see Gould v. Johnson (1702) 2 Salk 422; 91

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 ER 367 and Midland Bank Trust Co., Ltd. v. Hett, Stubbs and Kemp (a firm) [1978] 3 All E. R.
571). Breach of contract occurs where that which is complained of is a breach of duty arising out
of the obligations undertaken by the contract, i.e. breach of the contractual duty imposed by the
retainer.
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It has always been open to advocates to agree upon the terms of payment under their retainer.
Where they have a written retainership agreement, most advocates include a term as to when
payment is due. Terms such as “Payment is due within 30 days of invoice” are common. Where
there is no such written agreement, it will be more difficult to tell when the cause of action
10 arises. In such cases, where the retainer is an entire one, the obligation will arise when the work
is completed. Where the obligation is not entire, then time runs from when the client received the
benefit that gave rise to the obligation to pay. For example, it is recognised that litigation may
take years, proceeding through stages and be the subject of natural breaks allowing the delivery
of a bill at any point (see In re Romer & Haslam [1893] 2 QB 286 per Lord Esher MR at 293).
15 Therefore, in principle advocates are entitled to bill their fees and costs when a natural break
occurs in the course of protracted proceedings.

In the instant case, the applicants’ bill of costs as served upon the estate of the late Mr. Harshad
Damani indicates that the fees sought to be recovered involved instructions to undertake a search
20 at the Land Office, making applications for the necessary permissions / licenses, undertaking a
valuation of the land, meetings with the deceased and preparation of the respective agreements. I
deduce this to have been a retainer of the entire type, wherein the deceased’s obligation to pay
arise when the work is completed; i.e. 12th November, 2012 and 18th April, 2013 respectively.
Had there been evidence of a specified sum agreed upon as the fees payable, time begins to run
25 after expiry of a reasonable period from each of those dates. In principle though, the cause of
action accrues when the work is completed or upon termination of the retainer (see Edwards v.
Bray [2011] 2 Qd R 310 at [20]; - [2011] QCA 72).

Where there is no agreement on the quantum of fees payable, still Court proceedings must be
30 commenced within the limitation period. The commencement of a costs assessment too is an
“action on a cause of action” within the context of the law of limitation. Although there cannot

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 be a recoverable sum of money through court proceedings until the costs have been assessed, the
advocate’s right to initiate the process of doing so is recognised as a right of action (see Allen v.
Ruddy Tomlins & Baxter [2019] QCA 103). It is not a mere procedural mechanism for resolution
of the quantum and subsequent enforcement of the right to recover legal fees, even when there
5 are no other issues in dispute. The procedure advocate-client costs assessment procedure is
premised on the underlying contractual relationship resulting from the retainer, part of which is
the fee agreement; the underlying cause of action is contractual. That process does not confer a
right independent of contract to the recovery of legal fees by a law practice from its client, and
neither does it immunise the recovery of legal fees and costs from the operation of The
10 Limitation Act. It simply provides for the assessment of costs payable under contract. It is the
underlying right and title to the debt, and not the cost assessment process, which is subject to The
Limitation Act. Thus fee agreements may be enforced in the same way as any other contract.

A cause of action being, every fact which it would be necessary for the plaintiff to prove, if
15 traversed, in order to support his right to the judgment of the court, the period of limitation runs
from the date on which the ingredients of the cause of action are complete. Consequently, the
advocate’s right and cause of action in respect of outstanding legal fees arises on completion of
the last legal service (see Coburn v. College [1897] QB 62; [1897] 1 QB 702). The last legal
service to the estate of the deceased Mr. Harshad Damani having been rendered on 18th April,
20 2013 the period of limitation for any action for recovery of legal fees elapsed on 18 th April, 2019.
This application having been filed on 17th June, 2021 was therefore more than two years out of
time. To benefit from an exemption from any statute of limitation, one ought to have pleaded
disability (see Order 7 rule 6 of The Civil Procedure Rules). Any pleading that rests on an action
barred by limitation that does not contain averments invoking such an exemption, must be
25 rejected and struck out or dismissed (see Mulindwa Yekoyasi v. Attorney General [1985] HCB
70 and Katuramu K. Moses v. Attorney General and another [1986] HCB 39). That being the
case, it is not necessary to consider the third issue. In conclusion, the claim being time barred,
this application is dismissed with costs to the respondents.

30 Delivered electronically this 10th day of January, 2024 ……Stephen Mubiru…………..

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 10th January, 2024.

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