Court name
HC: Civil Division (Uganda)
Judgment date
13 December 2017

Bagenda v Agaba (Miscellaneous Application-2017/) [2017] UGHCCD 178 (13 December 2017);

Cite this case
[2017] UGHCCD 178
Coram
Masalu-Musene, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MPIGI

 

MISC. APPLICATION NO. 196 OF 2017

(Arising from Taxation Cause No 8 of 2017) and civil suit no. 31 of 2017)

BAGENDA SENFUKA::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

VERSUS

AGABA ROGERS KYALISAMA:::::::::::::::::::::::::::::::::::RESPONDENT

 

BEFORE:  HON. JUSTICE WILSON MASALU MUSENE

 

RULING

The parties  in this matter have a substantive  HCCS NO. 31 OF 2017 pending in this court.  It is yet to be heard and determined and it is a dispute over land.

It happened that on 12/7/2017 , when the case came up for hearing, the Plaintiff  and his Advocate were present , while  the Defendant, Senfuka  Bagenda was  present  minus his Advocate.  This court ordered that the case be  given a last adjournment at the instance of the Defendant, Senfuka Bagenda.  The defendant was also ordered to pay costs of the day to the Plaintiff.

 

Counsel for the Plaintiff then filed a bill of costs of shs  UGX 11,778,000/=  which was taxed by the Deputy Registrar to UGX 9,307,000/=. 

The defendant, Senfuka Bagenda appealed to this Court under Section 62 of the Advocates Act, Regulation 3 of the Advocates (Taxation of costs) appeal and Reference Regulations SI 267-5.  The main ground of appeal was that the taxed bill of costs of one day at  UGX 9,301,000/= was manifestly  excessive.

 

The Advocates on both  sides in their submissions dwelt on technical matters which  I shall discard in the interests of substantive Justice.   That is because the  arguments were unnecessarily lengthy as if presented at the conclusion of the main case, they were too argumentative and verbose  and in the circumstances uncalled for.  This Court cannot waste time over such  detailed, uncalled for, unnumbered submissions by Advocates on both sides over an order awarding  one day’s costs to the Plaintiff.  Advocates must be brief and precise in their pleadings and submissions, to give room for Courts to decide on matters of substantive Justice particularly during this era when courts are faced with huge backlog of cases.    So I shall disregard all preliminary objections and matters by both sides in the exercise of this Courts powers under sections 98  of the civil procedure Act and Section 33 of the  Judicature  Act.  In the same vein, I find  and hold  that for  purposes of costs of one day,  it was uncalled for and an abuse of court  process for counsel for the Plaintiff to file an exceptionally huge  and detailed bill of costs amounting to  UGX 11.778.000/.  His is  because it is now settled  law that  whereas costs should not be too low to discourage  practicing  Advocates from the legal profession, at the same time they should not  too  High to  chse away poor litigants from the Temple of Justice.  This has been the position of the law since the decision of the East African court of appeal  in Pramchand Raichand  vs quarry Services ltd [1972] E.A 162. And  later in Nicholas  Roussous vs Gulam Hussein Viran  and  Another, supreme court  Civil Appeal No. 6 of 1995 (Unreported), where Manyindo D.C.J as he then was stated:-

Clearly, it is important that Advocates should  be well motivated but it is also in public  interest that costs be kept at a reasonable  level so that  Justice is not put beyond  the reach of the poor.”

In the present case,  I have no doubt whatsoever  in my  mind that an award  of UGX 9,307,000/= as  costs of one day by the taxation master /Deputy  Registrar was not only manifestly  excessive, but the  Taxing  officer  applied wrong principles.  It was erroneous for the Taxing officer for instance to include  UGX 7,128,,000/=  being  the cost of Air ticket  when  as correctly  submitted by counsel for appellant, the Plaintiff  has a residence in Uganda.  Secondly,  even if he was working  in the U.S.A, he has appointed someone  with power of attorney to stand  in for him.  Other exaggerated items include attendance of Advocate in court   in less than six hours whereby the  6th schedule of Advocates  (Remuneration)  and Taxation of costs). Provides for  UGX 50,000/=  per hour and not ten times to UGX 500,000/= as awarded by the  Taxing officer under item 1.  Similarly, under item 5, a clerk is entitled to UGX 7,000/= and  not UGX  20,000/=.  Then under item 22, transport for witnesses of UGX 400,000/= was  equally  oppressive.  Even if there were five witnesses as alleged, a sum of  UGX 20,000/= each totaling to UGX 100,000/= was  reasonable travel costs for witnesses between  Kampala and Mpigi.  This is not  to forget  item 23 of transport  and Hotel  expenses  of UGX 1,500,000/=  for Plaintiff.  It has already been held that he had a residence in Uganda. 

Lastly, the  award of UGX 1,000,000/= as breakfast  for five witnesses under item 27 was absurd.  A sum of  UGX 100,000/= would have been  fair and  sufficient.

All in all and without going into the minute  details  of each item as that will be done at the conclusion of the main case, a sum of  UGX 800,000/= as costs and expenses  of the plaintiff and   his Advocate and witnesses for one day is  sufficient. 

I accordingly do hereby  allow the appeal, set aside the sum of  UGX 9,307,000/= awarded  by the Taxation master  and substitute it with a sum of  UGX 800,000/= as reasonable  and realistic costs of one day.

 

…………………………..

W. Masalu Musene

Judge

13/12/2017