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REPUBLIC OF UGANDA
IN THE SUPREME COURT OF UGANDA
AT MENGO
(TSEKOOKO, KATUREEBE AND OKELLO, JJSC.)
CIVIL APPLICATION (REFRENCE) NO. 3 OF 2009
JOSEPH TUMUSHABE ::::::::::::::::::::::::::::::::APPLICANT
AND
ATTORNEY GENERAL ::::::::::::::::::::::::::::RESPONDENT
[Application from the ruling on Taxation Reference to a single judge (G. W. Knyeihamba, JSC.) date 21st April, 2009, in Reference No. 1 of 2009]
RULING OF THE COURT
This is a reference made under sub-rules (7) and (8) of Rule 109 of the Rules of this Court by which the applicant seeks an Order of the Court to reverse the decision of a single judge of the Court made on reference to him from the decision of the Registrar as taxing officer of this Court.
Joseph Tumushabe (the applicant) successfully petitioned the Constitutional Court under Article 50 of the Constitution for certain declarations and orders. The Constitutional Court ordered that because of the nature of the litigation (public interest) each party should bear its own costs. The Attorney General (the present respondent) who was the respondent to the petition, appealed to this Court against the decision of the Constitutional Court. Neither party appealed against the order as to costs. This Court however awarded costs in the appeal to the applicant who was the successful party as respondent in that appeal. The taxing officer taxed the bill of costs and allowed the applicant’s instruction fee at Shs.50,000,000/=. The respondent was dissatisfied with that award and referred the matter under rule 106(1) and (3) of the Rules of the Court to a single Judge who reduced the amount to Shs.15,000,000/=. By this reference, the applicant has asked this Court to reverse that order and restore the amount of Shs.50m/= awarded by the taxing officer. The reference is based on two grounds. Mr. Peter Walubiri argued the reference on behalf of the applicant while Ms Peruth Nshemereirwe, State Attorney, opposed the reference.
1st Ground
The first ground is worded thus:
The assessment of-----------Shs.15,000,000/= as instruction fees in Constitutional Appeal No. 3 of 2005 was manifestly inadequate.
Mr. Walubiri forcefully argued that the learned Justice of the Supreme Court should not have reduced the amount awarded by the taxing officer. He relied on decided cases including Paul Ssemogerere & Zachary Olum Vs Attorney General (Sup. Ct. Civil Application No. 5 of 2001 and Charles Onyango Obbo Vs Attorney General (Sup. Court Civil Application No. 6 of 2002) for the view that save in exceptional cases, a judge should not interfere with the assessment of what a taxing officer considers to be a reasonable fee. In this regard, counsel relied on a well known statement from the decision of the East African Court of Appeal in Premchand and Raichand Vs Quarry Services (1972) EA 162, at page 164, to which this Court alluded when it considered a taxation reference similar to the present one in Ssemogerere case (supra) at page 20 of the taxation ruling regarding what would be a reasonable instruction fee for a hypothetical counsel. In answer to a point raised by the Court as to whether in public interest litigations, such as the present case, costs of litigation should be high, learned counsel argued that even in such cases, counsel must get a reasonable fee. Learned counsel contended that the appeal from which the taxation arose was controversial and a high profile matter. He further contended in effect that because in Constitutional Court there was a dissenting judgment he had to read all the judgments in preparation for the appeal. Learned counsel appears to ask for more costs because he successfully urged the Constitutional Court to declare its own decision (in Uganda Law Society Vs Attorney General) wrong. He contended that the other factor to be considered during taxation was the fall of the value of money. Therefore the award of the taxing officer in this case was reasonable and should not have been interfered with.
Learned Counsel relied on Ssemogerere (supra) and Onyango Obbo for the view that while awards of costs should not be so high as to restrict access to courts to the wealthy, there is need to keep the general level of remuneration of advocates that will
attract worthy recruits to the legal profession. He contended that recruits can be retained in the profession by awarding reasonable costs.
Mr. Walubiri further criticized the learned single Judge for the latter’s view that remuneration for advocates should go down. Counsel contended that this would force advocates to abandon litigation work in favour of more remunerative ventures or would lead to increase in malpractices by advocates which will affect the quality of recruits .He argued that the amount fixed by the single Judge is manifestly inadequate in as much as the State Attorney had, during the original taxation hearing, conceded Shs.20m/= as adequate instruction fee. Counsel compared the award of Shs.5m/= by the single Judge for arguing the reference before him with Shs.15m/= awarded in respect of the fees for arguing the appeal itself and so contended that the latter amount is inadequate.
Ms. Peruth Nsyemereirwe, State Attorney, for the respondent opposed the application.
On this ground, the learned State Attorney submitted that the award of Shs.15m/= is adequate. Regarding her alleged concession of Shs.20m/=, she sought extricate herself by stating that she did not record the proceedings of the taxing officer. She in effect insinuated that she never made that concession. On the applicable principles, she relied on Sub-paragraph (2) of paragraph 9 of the 3rd schedule to the Rules of this Court for the view that a reasonable fee to be paid to the hypothetical counsel should depend on the work done by that Counsel. She contended that the appeal was not complex and that there was no evidence of extensive research or effort made. According to her in the appeal each counsel lodged brief written submissions and that the respondent cited only one authority – Ssemogerere (Supra) which she distinguished from the appeal from which these proceedings emanate. She argued that Mr. Walubiri, as an experienced constitutional lawyer should contribute to the development of constitutional jurisprudence of this country expecting less remuneration. She relied on Attorney General Vs James Kamoga & James Kimala (Sup. Court Civil Application No. 2 of 2008 (unreported) where Okello JSC, as a single Judge, reduced Shs. 70m/= awarded by a taxing officer to Shs.17m/= for her contention that in the present case reduction from 50m/= to Shs.15m/= is reasonable.
The principles governing the award of instruction fees in all appeals in this Court are set out in subparagraph (2) of paragraph9 of the third schedule to the Rules of this Court thus:
“(2) The fee to be allowed for instructions 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..”
Clearly, a taxing officer is expected to consider a variety of factors and to exercise judicial discretion in the award he or she makes. The exercise of that judicial discretion has been considered and discussed in cases decided by this Court, its predecessors and courts in the other common law jurisdictions. Some of these cases were cited during the hearing before the taxing officer and the single Judge and were also subsequently cited to us by both Mr. Walubiri and the learned State Attorney. In the Ssemogerere reference (Supra) from page 19 to 20 of the ruling, this Court had this to say –
“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 Services (Supra) 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 Simpsons Sales (London Ltd Vs Herndon Corporation (1964) ALL ER 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 preeminent reputation. Then one must estimate what fee this hypothetical character would be content to take on the brief.”
The learned justices who quoted this passage in Ssemogerere (Supra) rightly opined that there is no formular by which to calculate the instruction fee and we respectfully agree with that opinion. Indeed we would add that in our considered opinion Sub-paragraph (2) of paragraph 9 of the 3rd schedule to the Rules of this Court does not set out a formular either. It only sets out factors which have to be taken into account and one of the important factors is to ensure justice to all parties to the particular litigation.
In this application, counsel for the applicant argues that the amount of Shs.15m/= awarded by the single judge is manifestly inadequate while the State Attorney contends that the judge considered the relevant factors before he made the award which is adequate.
As stated earlier, the question of what is or is not manifestly adequate has been a subject of discussion in many cases decided by this Court and its predecessors. Such cases include Ssemogerere (Supra) Onyango Obbo (Supra), Attorney General Vs Kamoga (Supra). In this case, before he reduced the taxing officer’s award of Shs.50m/= to Shs.15m/=, the learned single Judge considered a number of decisions of this Court where the amounts awarded by either a taxing officer or a Single Judge were reduced or increased. He certainly was alive to the intricacies of assessing instruction fee. For he stated this at page 10 of his typed ruling. “There have been other decisions of the Court since 1986 in which sums of taxed costs awarded by taxing officers have been altered mainly downwards especially where the taxing officers took into account irrelevant matters or failed to take into account relevant matters.”
After considering the decisions of Ssemogerere (Supra) and Onyango Obbo (supra) the learned Justice of Supreme Court continued as follows:
“In order to evaluate the reasonableness of the award of instructions fee by the taxing officer in this reference, it is necessary to understand what issues were at stake and how they were presented by counsel and resolved by both the Constitutional Court and the Supreme Court as a first appellate Court.”
The learned justice then considered the contents of the petition, the reply [answers] and referred to the judgment of Mulenga, JSC, in that appeal before he concluded, at Page 6 of his typed ruling, that –
“There was no serious dispute on the facts or law applicable. The case turned out to be based on the meaning, application and interpretation of the Constitution and the Uganda Peoples Defence Forces Legislation.” Thereafter he alluded to the various individual judgments in the appeal in this Court.
We are not persuaded that the decision made by the single judge is wrong in principle. Neither are we satisfied that the amount he awarded, i.e., shs.15m/= is manifestly so inadequate as to warrant our interference.
Perhaps we should allude to the fact that during the hearing by the taxing officer, Ms. Nshemereire conceded that an award of Shs.20m/= would be reasonable, a concession which before us she sought to recant and disown. The implication is that the taxing officer’s record of proceedings is falsified which we cannot accept because there is no evidence to support falsification. We note that the figure of 20m/= appears in that portion of the taxing officers record of proceedings in the portion reflecting submissions by the same present learned State Attorney. From the record, it does appear that when she was before the Single Judge, the learned State Attorney never sought to correct what could be false or an error on the record. Even before us, until Mr. Walubiri alluded to the figure, the learned State Attorney would probably not have sought to deny it. We accept that she in fact conceded to instruction fees at Shs.20m/=. Obviously she does not concede now having secured a favourable ruling from the single judge.
Mr. Walubiri stated what he had raised before the taxing officer and the single Judge, the factor of the fall in the value of the shilling. We would point out that paragraph 9(2) (supra) permits a taxing officer to take “all other relevant circumstance” into account. We think that this phrase would include a fall in the value of money. We think this is a valid point although it does not change the position we take.
We are not persuaded that the single judge’s award is so inadequate as to warrant interference. Accordingly, the 1st ground fails.
The 2nd ground of reference is that the learned Justice of the Supreme Court in reducing the instruction fees failed to take into account all the factors set out in Rule 9 of the 3rd schedule……………..which the taxing officer had properly construed.
In his submissions on this ground, Mr. Walubiri contended that whereas the taxing officer considered all the relevant factors in paragraph 9, the learned Single Judge did not and was not justified in interfering with the ruling of the taxing officer because the appeal here was not simple. Learned counsel further contended that the learned single judge erred when he criticized the taxing officer for correctly considering the fact that the Constitutional Court did not award costs to the applicant even though he was the successful party in that Court. Ms Peruth Nshemereirwe rightly observed that this ground is similar to the first ground and contended that the learned justice of the Supreme Court took into account all the relevant factors set out in paragraph 9(2) (supra.)
We think we have in fact considered the substance of this ground which does not differ much from the first ground.
Our discussion of the first ground covers this ground adequately. There is no merit in it and it must fail.
In the result we dismiss the reference and uphold the decision of the single judge.
Whilst normally the respondent would have had the costs as he was the successful party, it is our considered opinion that as the petition was instituted and prosecuted as a public interest litigation, that spirit affect the costs as well. We accordingly order that each party should bear his own costs.
Delivered at Mengo this 29th day of July, 2009.
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J. W. N. TSEKOOKO.
JUSTICE OF SUPREME COURT.
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B. M. KATUREEBE.
JUSTICE OF SUPREME COURT.
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G. M. OKELLO.
JUSTICE OF SUPREME COURT.
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