Court name
Commercial Court of Uganda
Judgment date
25 February 2004

Concorp International, UCB Ltd v Muwumba Gideon (Miscellaneous Application-2003/684) [2004] UGCommC 3 (25 February 2004);

Cite this case
[2004] UGCommC 3


THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT
KAMPALA
(Commercial Division)

MISC. APPLICATION NO. 684 OF 2003
AND
MISC
. APPLICATION NO. 611. OF 2003

1. CONCORP INTERNATIONAL]
2. UCB
LTD] :::::::::::::::::::::::::::::::::::::::: APPLICANTS


VERSUS
MUWUMBA GIDEON (COURT BA
ILIFF) :::::::::::::::::::::::::::::::::::: RESPONDENTS

BEFORE: THE HON. LADY JUSTICE M.S. ARACH AMOKO


RULING:
Misc. Application No. 684/03 and 611/03 are appeals against the taxation order of the Ag. Registrar dated 2/10/03 awarding the Respondent Court Bailiff a fee of Shs.63,935,600-. The application were consolidated and argued together.
The applications were made under section 62 of the Advocates Act, (Cap 267) and Rules
3 of the Taxation of costs (Appeals and References) Rules, S.1. 258 — 6, S. 98 CPA and Order 46 Rules 4 and 8 CPR.
There are two supporting affidavits by Dr. Joseph Byambara Byamugisha dated 6/10/03 and Ssebagala Sengendo dated 3/11/03. Seguya Samuel filed an affidavit in reply dated 22/1/04. The grounds of appeal are that:
a. That the Respondent did not attach any property.
b. The Ag. Deputy Registrar erred in law and in fact by allowing the fee of Shs.63,965,600- to the bailiff.
c. It is in the interest of justice that the Court Bailiff’s bill be taxed and reduced in accordance with the law.
Hon. Kategaya and Mr. Sabina Muwanga represented the Applicants while Mr. Kibeedi Muzamiru appeared for the Respondent.
The background to the appeal was given by Dr. Byamugisha’s affidavit as follows:
On the 25/9/2000 and 8/12/2002 consent decrees were entered in favour of the 2nd
Appellant (UCB Ltd) against the 1st Appellant (Ms Concorp International Ltd) in HCCS No.
903/1999 — UCB Ltd —Vs- Concorp (U) Ltd and 2 Others.
On 25/7/2003, the Respondent was issued with a warrant of attachment and sale of immovable property to recover the sum of Ug. Shs.6,396,559,776-, then due under the said decrees.
After receipt of the warrant the Respondent only published advertisements in newspapers and inspected premises and served notices on tenants. On the 6/8/2003 Stanbic Bank Uganda Ltd, the successor to UCB Ltd wrote to the Deputy Registrar advising him that the parties to the original suit had come to an understanding and requesting for recall of the warrant.
By a letter dated 7/8/2003 the Court duly ordered the halt of the execution of the warrant and its return to Court and advised the Respondent to file his bill of costs for taxation inter parties.
Pursuant to the said orders, the Respondent filed his bill of costs in the sum of Ug. shs.192,641,793-. The bill was taxed by the Ag. Deputy Registrar and allowed at Ug. Shs. 63,965,600-.
The Applicants contend that the Ag. Deputy Registrar erred in law and principle when he allowed the Respondent this fee which they believe is excessive and contrary to the law. Copies of the Ruling, the letter recalling the warrant and the Respondent’s Bill of costs are annexed as A, B, C and D.
Mr. Seguya on his part deponed that the Honourable Taxing Master had properly exercised his discretion by awarding the said sum which is reasonable in the circumstances. The said sum should accordingly be upheld by this Court in accordance with the settled principles and practice of the Court in respect of taxation matters.
I have carefully read the taxation ruling of the learned Ag. Deputy Registrar. I also listened to the submission of the learned lawyers. With much due respect, I agree with the contention by the Applicants that he erred in awarding the fees to the Respondent. In so doing, he totally ignored the clear provisions of S1 No. 15/1991 which govern the Court Bailiff Fees. He instead resorted to what he calls the practice of this Court to award between 3 - 6% of the amount recovered or to be recovered, which method he was aware that the Supreme Court is uncomfortable with. He says on page 13 of his ruling that:
“I am therefore not surprised that the highest court in the land should in some cases feel uncomfortable with a 3% award for Court Bailiff’s who are not anywhere near the advocate in terms of professional qualifications if they have any at all. In my considered opinion the Court Bailiff’s fees in this case should be assessed and charged at 1% of the amount that stood to be recovered under the warrant of attachment. I believe this approach is in fine with the strong views expressed by the Supreme Court.”
In the case of Bamu Partners & Auctioneers —Vs- Attorney General CA No. 3/02 referred to by the D/Registrar, the taxing Registrar awarded Shs.908,184,623- for attachment in a case where the Bailiff did not attach any property. Karokoora SCJ had this, to say, on the methods by which the Registrar taxed the bill of costs:
“Secondly, assuming that the Registrar was right to assign the file with instructions to carry out attachment of shares, one would wonder what part the Appellant did to justify c/aiming fees of Shs.908,184,623- for the attachment.
In my view, one looking at the bill of costs as presented by the Court Bailiff and the manner in which it was taxed by the Registrar, one would wonder whether our law would not be described as an ass if it permits a Court Bailiff to claim fees amounting to as much as Shs.968,184,623- for attachment of shares in a company whether these were already attached as in the instant case or not. If the law, Statutory Instrument (5.1) No. 64 of 1987 as amended by SI No. 15 of 1991 permits the Registrars to allow such unconscionable amount of money as fees for attachment by Court Bailiff as it was done in this case, then an amendment of the relevant law is necessary to provide Nm its which the Registrar should not exceed in awarding the fees to the Court Bailiff This is absolutely necessary in view of the fact that some Registrars like this one who handled this type of claim tend to endorse whatever the Court Bailiffs present as bill of costs without any due regard to the amount of work done.”
The learned Justice did in fact direct the Supreme Court Registrar to send a copy of the Judgment to the Chief Justice for his study and possible action. In this case, the Respondent was awarded the expenses incurred from the time of issuance of the warrant to the time of recall i.e. the transport, advertisement and service of notice on tenants.
The then Registrar went ahead and awarded 1% of the decretal sum. I agree with Mr. Sebina that there is no basis for this award. The case of Fiba (U) Ltd and Ors —Vs Bank of Uganda & Greenland Bank Ltd (in liquidation) relied on does not in my view prove the correctness of such a practice in light of the Supreme Court ruling in the Bamu case. The result leaves one wondering as their Lordships did in the Bamu case, what part the Bailiff played to justify such fees for attachment. In any case, it appears to be a ruling of the Registrar and it is not binding on this Court. Moreover in that case, unlike in the one before me, the lawyers involved consented to the 41/2% fee.
This Court is not also bound by the provisions of the English practice of ‘poundage’ used to justify the fee because the English have different rules and fee structures from Uganda. Our law is found under SI No. 15/1991. Part 1 B (ii) should apply to this case because there was attachment but no sale. It says:
“(i). On attachment of immovable property,
(a)
…………………
(b). when it exceeds 120,000………….. 30,000.”
The Registrar should then use his discretion taking into account the circumstances of this case and award what is reasonable and just in this case. For the reasons given, I agree with the Applicants and set aside the order and direct the Deputy Registrar to tax the fee in accordance with the law. Costs cannot be awarded against the Respondent since the application resulted from the acts of the Registrar of this Court, and not the Respondent.

M.S. Arach — Amoko
JUDGE
2/6/2004
Ruling delivered in the presence of:
1. Mr. Muwumba Gideon (Respondent).
2. Mr. Okuni - Court clerk.
M.S. Arach — Amoko
JUDGE
2/6/2/2004