Court name
HC: Civil Division (Uganda)
Judgment date
14 October 2015

Byenkya Kihika & Co. Advocates v Gandesha (Civil Miscellaneous Appeal-2014/19) [2015] UGHCCD 113 (14 October 2015);

Cite this case
[2015] UGHCCD 113
Short summary:

CL, Taxation of Bill of Costs, Estoppel

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL DIVISION

CIVIL MISC. APPEAL NO. 019 OF 2014

BYENKYA KIHIKA & CO. ADVOCATES ::::::::::::::::: APPELLANT

VERSUS

SAROJ GANDESHA ::::::::::::::::::::::::::::::::::::::::: RESPONDENT

 

BEFORE:  HON. JUSTICE STEPHEN MUSOTA

 

RULING

The appellant lodged this appeal under Section 62(1) of the Advocates Act and Regulation 3(1) and (2) of the Advocates (Taxation of costs) (Appeals and References) Rules and Section 98 of the Civil Procedure Act against the taxation ruling of the learned Deputy Registrar in Misc. application No. 328 of 2014 dated 1st December 2014 and seeks the orders that;

  1. The Deputy Registrar’s decision in Misc. Application No.328 of 2014 declining to grant leave to the appellant to tax its advocate /client bill of costs against the respondents be set aside.
  2. The appellant be granted leave to tax its Advocate-client bill of costs and
  3. Costs of this application be provided for.

The background to this appeal is that the appellant was instructed by the respondent to lodge an appeal in the court of appeal in SAROJ Vs  TRANSROAD LTD CA 19 OF 2006 and subsequently the Supreme Court Civil Appeal No. 13 of 2009 between the same parties which the appellants successfully prosecuted. The appellant firm obtained orders setting aside High Court orders requiring the respondent to pay to Transroad Limited the sum of USD 2,779,691 and UGX217,037,314. in CS 516 of 2001. The Supreme Court further found that the respondent was not liable to account to Transroad Limited the sum of US$ 2,779,691 and UGX 217,037,314=.

 

The Supreme Court awarded the respondent party to pay costs in the Supreme Court and the Courts below. The appellant duly filed the party to party bills of costs both in the Court of Appeal and Supreme Court which were taxed and allowed at UGX 757,698,964 and UGX 637,001,800 respectively. The appellant firm initiated pre-execution proceedings against Transroad Ltd which eventually culminated in a decision of the High Court in Misc. Application No. 264 of 2012 wherein it was held that the judgment debtor had assets capable of satisfying the judgment in the Supreme Court but that the assets were not in the jurisdiction of the Ugandan Court.

 

The appellant having dully discharged all its residual duty to the respondent advised the respondent to instruct the lawyers in the jurisdiction where Transroad Ltd has assets to recover party to party costs. The appellant firm then presented an Advocate-client bill for settlement to the respondent since it is believed that it was entitled to be remunerated agreement for professional services rendered and since no remuneration in respect of its professional services was ever entered between the appellant firm and the respondent in accordance with the advocates Act at the time of taking instructions.

 

After neglecting the demand by the appellant, the appellant firm filed Misc. Application 328 of 2014seeking for orders that the client advocate bill of costs be taxed forthwith but the Deputy  Registrar dismissed the appellant firm’s application hence this appeal.

 

Two grounds of appeal were raised by the appellant that:

  1. The learned Deputy Registrar erred in fact and in law when he failed to uphold the Statutory right of the appellant to file the Advocate-client bill of costs in respect of services rendered to the respondent, in the Court of Appeal and Supreme Court despite having fully complied with the provisions of Section 57, 58 and 60 of the advocate’s Act.
  2. The learned Deputy Registrar erred in law and fact when he found that the appellant were estopped from filing an Advocate-client bill of cost against the respondents.

 

Court allowed respective counsel to file written submissions in support of their respective cases and indeed voluminous submissions were filed by both learned counsel which I cannot reproduce herein this ruling. I however wish to mention that I have studied and comprehended the contents thereof. I have considered the authorities cited for my assistance and the law applicable.

 

I will go ahead and determine the grounds of the appeal as argued by the appellant starting with ground B

 

Ground B

It is clear from the ruling of the learned Deputy Registrar that in refusing to grant the appellant leave to tax its Advocate-client bill of costs, the registrar found that the doctrine of estoppel was in operation and applied to the case before him. He therefore held in effect that the appellant firm was estopped from presenting and Advocate-client bill of costs and he thus ordered that leave to tax the bill of costs be rejected.

 

Was the doctrine of stopped applicable in the circumstances of this case?

 

On this issue, I agree with the submissions by learned counsel for the appellant that the doctrine of estoppel was not applicable in this case. The Learned Deputy Registrar should not have applied the equitable principles of estoppel in exercising his discretion to dismiss the applicant’s application for leave to tax their Advocate-client bill of costs when there are specific laws that deal with the matter before him. In any case, the appellant had complied with the requirement of Sections 57, 58 and 60 of the Advocates Act and therefore the duty of the appellant was to present the client/advocate bill for taxation before the registrar instead of asking for leave to have it taxed. Leave is sought from a judge in case those provisions of the law are not complied with.

 

Regarding the principle of estoppel, Section 14 of the judicature act provides that the High court is enjoined to exercise its jurisdiction in conformity with the written law in the first instance. It is only when there is no express law or rule that is applicable in any matter in issue that the High Court will then exercise its jurisdiction while making reference to the principles of equity etc.

 

I agree with learned counsel for the appellant that in the instant case, there is express law providing for the circumstances when an advocate is not permitted to tax his or her costs and circumstances when an advocate may present his or her bill of costs for taxation.

In the Supreme Court case Erukana Kunde Vs Vasrambhai Damji Vader CA No. 2 of 2002, their lordships considered this matter when they relied on the case of Mbogo & Another Vs Shah [1968] EA 93 which considered the import of section 16(2) of the Judicature Statute the equivalent of section 14 of the Judicature Act Cap 13 which provides that:

“Subject to the constitution and this act, the jurisdiction of the High Court shall be exercised,

(a) in conformity with the written law, including  any law in force immediately before the commencement of this act;

(b) Subject to any written law and in so far as the written law does not extend or apply in conformity with-

 (i) the common law and doctrine of equity.

(ii) Any established and current custom or usage; and

(iii) The powers vested in and the procedure and practice observed by the High Court immediately before the commencement of this act insofar as any such jurisdiction is consistent with the provisions of this; and

(C) Where no express law or rule is applicable to any matter in issue before the High Court in conformity with the principles of justice, equity and good conscience”

The effects of the provisions of this section are that jurisdiction of the High Court shall be exercised firstly in conformity with the written law including the law in force immediately before the commencement of the statute. If the written law does not apply then in conformity with the doctrines of equity. In case no express or any of the two aspects of the law do not apply then the doctrines and principles of equity apply in so far as express law as rule does not extend or apply to the matter in the issue before the High Court.

In the instant case, since there were express provisions of the law which governed the issues before the learned registrar as enacted in sections 51, 54, 57 of the Advocates Act, it was erroneous for him to have invoked the principle of estoppel in exercising his discretion to dismiss the appellant’s application.

 

In view of the misapprehension of the law on taxation, the learned registrar failed to appreciate the fact that the right of an advocate to file a Client/Advocate Bill of Costs for taxation is granted by the express provisions of section 57 of the Advocates Act and can only be excluded by the express provisions of section 54 of the Advocates Act.  The learned Deputy Registrar also failed to appreciate the fact that the right to file a Advocate-client Bill of Costs can only be excluded by execution of a valid remuneration agreement pursuant to the express provisions of section 50 of the Advocates Act.  The learned Deputy Registrar also failed to appreciate the fact that the Advocates Act is a comprehensive and specific statute that regulates the provision of legal services in Uganda which do not need introduction of equitable principles of estoppel which is not provided for by the Advocates Act.

 

The learned Deputy Registrar therefore erred in fact and law when he found that the appellants were estopped from filing an Advocate-client Bill of Costs against the respondent.

 

Ground A:

In this ground, the appellant complains that the learned Deputy Registrar erred in fact and law when he failed to uphold the statutory right of the appellant to file Client/Advocate Bill of Costs in respect of services rendered to the respondent in Court of Appeal Civil Appeal No. 19 of 2006 and Supreme Court Civil Appeal No. 13 of 2009 despite having fully complied with the provisions of sections 57, 58 and 60 of the Advocates Act.

 

In their submissions the respondent argued that the appellants should not be allowed to cloth themselves with statute in abuse of their earlier stance when they convinced their Lordships in the Supreme Court that the respondent is a vulnerable widow.  That simply because there was no formal written agreement in place should not be a scapegoat because there exists other evidence demonstrating that a full levy of fees and full discharge of payments was made.  That the appellants were paid in installments as the appeals progressed and at the end of the appeals they demanded the outstanding balance which was paid. That no issue of outstanding obligation of the respondent was raised and section 57 of the Advocates Act cannot justifiably be used in aid of reverse engineering.

 

Learned counsel for the appellant argued to the contrary.

 

According to the Ruling by the learned Deputy Registrar he held that:

“I do not accept the contention that there being no formal remuneration agreement between the parties as provided by the law, the applicant could seek to exercise a statutory right under Rule 57 of the Advocates (Remuneration and Taxation of Costs) Regulations.” 

 

Earlier in his ruling, the Deputy Registrar acknowledged that there was no formal agreement between the appellant firm and the respondent for payment of its fees.  However, he held based on extracts of receipts issued by the appellants’ firm to the respondent that the respondent was made to believe she was paying the appellant firm full and final payment for legal fees and disbursements.  Therefore having held that there was no remuneration agreement entered into between the appellant firm and the respondent at the time of taking instructions, the learned Deputy Registrar should have held that the appellant firm was in the circumstances entitled to have its costs taxed.  Under section 54 of the Advocates Act taxation is only excluded by existence of an agreement regarding an advocate’s Bill.

 

I am therefore in agreement with the submissions by appellants that it was entitled to have its Advocate-client Bill of Costs taxed as against the respondent because no agreement as envisaged under section 50 of the Advocates Act had ever been entered between itself and the respondent and it had fulfilled the prerequisites stipulated by the Advocates Act necessary for taxation of an Advocate-client Bill.  The appellant’s firm wrote to the respondent informing her of its decision to present bills of costs for payment pursuant to the provisions of the Advocates Act.  The said letter was sent to the respondent on 5th May 2014.  The itemized bills were also delivered to the respondent.  All this was in compliance with sections 57, 58 and 60 of the Advocates Act which create a statutory right for the appellant firm to file Advocate-client Bill of costs in respect of services rendered to the respondent which ought to have been acknowledged by the Deputy Registrar. From the learned Deputy Registrar’s ruling, it is clear that he erroneously took the position that the extracts of receipts issued by the appellant firm to the respondent meant that the fees initially charged by the appellant firm were full and final payment of legal fees and disbursements.  I agree with the appellants that this was  not the case because what was charged was retainer fees at the time of receiving instructions to file the respective appeal.  Instruction fees continue to be earned as each case progresses.  This was the holding in Lumweno & Co. Advocates Vs Transafrica Assurance Co. Ltd. CA 95 of 2004.

“………The moment an advocate is instructed to sue or defend a suit he/she becomes entitled to an instruction fees but ------- will not ordinarily become entitled at the moment of instruction to the whole of the fees which he may ultimately claim …. The advocate would, as I see it, be entitled to claim the minimum instruction fee.  But he could not claim in respect of work she/he has not done. The entitlement under instruction fees grows as the matter proceeds.”

 

This does not mean that the minimum instruction fee cannot be adjusted at the time of taxation depending on what unfolded during the trial and the complexity of the case at hand.  The instruction fee, whether minimum or not may be subjected to adjustments as it may not reflect the advocate’s work in the case wholly.  The fee may be reviewed upwards or even downwards based on the advocate’s involvement, complexity and other related matters.

 

I agree with learned counsel for the appellant that it is not stated anywhere on the receipts of payments that the payments were full and final instruction fees.

 

Consequently, I will allow this appeal with costs.  The appellant is hereby granted leave to have his Advocate-client Bill of Costs against the respondent taxed.

 

Stephen Musota

J U D G E

14.10.2015.

 

14.10.2015:

Ruling delivered in presence of:

  1. Mr. Kihika Oscar for the appellant.
  2. Mr. Haguma Daniel holding brief for Mr. Rezida Alex for the respondent.
  3. Court Clerk - Ms. Kauma Jolly.

 

Festo Nsenga

AG. DEPUTY REGISTRAR

14.10.2015.