Court name
Supreme Court of Uganda
Judgment date
26 May 2004

Habre International Trading Co Ltd v Francis Rutagarama Bantariza (2) (Civil Application-2003/7) [2004] UGSC 16 (26 May 2004);

Cite this case
[2004] UGSC 16

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA

AT MENGO

CIVIL APPLICATION NO. 7 OF 2003

BETWEEN
HABRE INTERNATIONAL TRADING CO. LTD.
:::::: APPLICANT

AND
FRANCIS RUTAGARAMA BANTARIZA
:::::::::::: RESPONDENT

BEFORE: HON. JUSTICE KANYEIHAMBA, J.S.C.


PROCEEDINGS

Mr. Eriya Kategaya of Byamugisha and Rwaheru and Co. Advocates, for the
applicant.
Ms. Sitina Cherotic of Nyanzi, Kiboneka and Mbabazi & Co.
Advocates, for the respondent.

Mr. Kategaya:
This is a reference to a single judge under Rule
105(2) of the Rules of this court. Following a successful appeal in this court
in
favour of the respondent, the court awarded him costs which were claimed and
taxed. In his ruling, the learned taxing officer allowed
the sum of
Shs.48,000,000/= as instructions fee which we are challenging as too excessive.
Our grounds of reference are that,

1. The award of Shs. 48,000,000/- is manifestly
excessive.

2. The award of Shs. 120,000/= for lodging of record of
appeal in disbursements by the taxing officer was manifestly
excessive.



Counsel argued that whereas there are no
magic in determining what are reasonable costs, nevertheless courts have held
from time to
time that such costs must be reasonable and should conform to the
rules of this court and judicial precedents. Mr. Kategeya submitted
that there
were no complicated issues involved in the appeal before the Supreme Court and
if there were any in the case, they had
been raised and resolved in the Court of
Appeal.


Counsel further contended that according to the rules of this
court the fee to be allowed for instructions should take into account,
inter
alia,
the nature, importance and difficulty of the subject matter of the
appeal, other costs to be allowed and the persons to bear the costs.
These
factors were ignored by the taxing officer. For instance, the applicant is a
pauper who has failed to pay taxed costs in other
suits, such as in Civil
Application No. 4 of 1999 where he failed to pay a mere three million shillings
and has no property to sell.
He is also a sickly person.

It is our contention that if costs are too prohibitive, this will deter would
be litigants. Counsel abandoned ground 2 of the reference.

Ms. S. Cherotic:
It is the respondent's contention that considering
the circumstances of this case, the instructions fee was reasonable.

The case was an important one since it determined the ownership of the suit
property. Counsel for the respondent had to revive some
of the matters in this
court which the Court of Appeal had ignored. For instance, the court had ignored
the issue of fraud on which
counsel for the respondent specifically made
research so as to have it addressed in this court. All the same I do not mind
this court
using its discretion to revise the amount slightly downward. It would
have helped if counsel for the respondent had suggested some
figure on which I
could have commented. In the absence of any proposal from counsel for the
applicant, I support the ruling of the
taxing officer as reasonable.

Court:

I will give my ruling on a date to be notified to the parties.


RULING OF KANYEIHAMBA, J.S.C.


This is a reference to me under rule 105 of the Rules of this court, from a
decision of the Registrar as a taxing officer.


The background to this
reference is that following the judgment of this court in Civil Appeal No. 3 of
1999, the respondent was ordered
to pay costs to the appellant in this court and
in the courts below.


Before determining this reference, I am
constrained to comment on the casual and inattentive manner in which both
counsel and the
taxing officer of the Supreme Court handled the taxation
application before the Registrar of this court. The papers presented
to me
show that contrary to what was subsequently submitted to court, the matter was
filed as Civil Appeal No. 3 of 1999. Admittedly,
there was a tentative attempt
to alter it in ink with the words "Civil Application No. 7 of 2002" with a
question mark, whatever
that means. Whereas the applicant before me turned out
to be a Mr. Francis Rutagarama Bantariza and the respondent, Habre International
Trading Co. Ltd., the actual reference heading was marked as either Civil appeal
No 3 of 1999 or Civil Application No. 7/2002? between
Habre International
Trading Co. Ltd. as Appellant and Francis Rutagarama Bantariza as Respondent.
There is no citation of the law
or rules under which the reference is made. Then
out of the blue comes a heading displaying grounds of the Reference. Apparently,
Francis Rutagarama Bantariza on the 8th November, 1999, required the
Registrar to refer the bill as taxed by him to a Justice of the Supreme Court
for being manifestly excessive
and the same had not, up to now been referred to
a Justice of the Supreme Court. The learned Registrar did not explain why there
had been so much delay. Neither he nor counsel for the appellant/respondent
raised the issue or objected as to whether such a delay
was in the interests of
justice or justifiable. Be that as it may, the document is dated and stamped by
the court's registry on 14th April, 2003. It was not brought up for
hearing until 19th April, 2004.


The proceedings before the
learned taxing officer if correctly recorded show lack of depth and seriousness
on the part of counsel
who appeared before him. For clarity purposes, I will
reproduce the whole submissions of both counsel made to the taxing officer.
According to the latter's record of proceedings, this is all that counsel for
the applicant said,





"The bill of costs is as per Supreme Court rules. According to paragraph 9
of the Third Schedule to the Supreme Court Rules, the appeal
involved complex
points of law. On the authority of Attorney General v. Uganda Blanket
Manufacturers,
Civil Appeal No. 1 of 1993, the instructions fees of
Shs.90,000,000/= is reasonable."




There is also General Industries v. Non-Performing Assets (Civil
Appeal No. 5 Of 1998). With regard to the cases quoted and the complexity of the
appeal, involving ownership of property,
instructions fee is reasonable and
should be granted. The rest of the items are reasonable and calculated according
to the rules.
There is no exaggeration, so I pray that costs be
granted."

Counsel for the applicant (or respondent?) said this in opposition,



"I oppose the whole Bill of costs. It is excessive and not in accordance
with principle. On item (1), there was nothing complex or
important in the law
involved. The cases cited by my learned friend mitigate against the excessive
costs of Shs.90,000,000/= In the
High Court, I agreed with Kayondo, then
representing the appellant at Shs.1,500,000/= and it was paid. That was the
nature and importance
of the case."

On the basis of the above submissions and arguments, the learned taxing
officer of the Supreme Court used his discretion to award
the sum of
Shs.48,000,000/= as a reasonable instructions fee. I will be returning to this
amount of money and the criteria used by
the taxing officer for his ruling.
Suffice to say that very little, if any, factual or legal assistance was
forthcoming from the
participating counsel to guide the taxing officer.

The law and rules on taxation of costs are well known and freely available.
These are effectively buttressed by principles and precedents
on taxation. The
powers of the Registrar of the Supreme Court to tax bills of costs are derived
from Rule 104(1) and rule 9 of the
3rd Schedule of the Rules of this
Court.

Paragraph (2) of Rule 9 of the 3rd Schedule provides that:-



"The fee to be allowed for instructions to appeal or to oppose an appeal
shall be a sum that a taxing officer considers reasonable having
regard to the
amount involved in 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
circumstances."

Consequently, whether or not the award by
the taxing officer is reasonable must be determined in reference to all the
matters enumerated
in Rule 9(2) of the 3rd Schedule to the Rules of
this court. For more than a decade now this court has, in many of its decisions
on taxation, laid down or
referred to principles, precepts and precedents which
govern taxation of costs. A sample of these cases include the Attorney
General v. Uganda Blanket Manufacturers,
Civil
Application No. 17/93, Patrick Makumbi and Nakibuuka v. Sole Electrics
(U) Ltd.,
Civil Application No. 11/94, The
Registered Trustees of Kampala Institute
v. Departed Asians Property Custodian
Board,
Civil Application No. 3 of 1995, Ebrahim A. Kassam
Sherali Ahmed Kasscaw and Onali Allarakhia v. Habre
International Ltd.
Ref No 16 of 1999,
Departed Asians' Property Custodian Board v.
Jaffer Brothers Ltd.,
Civil Application No.13 of 1999; Bank of
Uganda v. Banco Arabe Espanol,
Civil Application No. 23 of 1999,
General Parts (U) Ltd. v. Non-Performing Assets Recovery Trust,
Civil Application No 21 of 2000 and Attorney General v. K.
Ssemwogerere and Zachary Olum,
Civil Application No. 20
of 2000.


In all these authorities reference is made to other
principles and leading authorities. Yet, every time another taxation of costs
case arises or a reference is made to a court, ignorance or reluctance are shown
amongst counsel and taxing officers to utilise these
leading and in some cases,
binding authorities. The same phenomena is true of the application/submissions
of counsel and rulings
of the learned taxing officer in this reference. I would
not wish to hazard the reason as being the fact that nearly in all these
decisions of the Supreme Court, huge amounts claimed by applicants or awarded by
taxing officers are drastically reduced to small
sums of which the Supreme Court
believes to be reasonable. Thus, in the last mentioned reference, the parties'
colossal claim of
shs.1,551,959,000/= with the equally high award of the taxing
officer at shs.350,000,000/= were found by the court to be manifestly
excessive
and reduced to a mere Shs.30,000,000/=. In the Bank of Uganda v. Banco
Arabe Espanol,
(supra), the award by the taxing officer
of Shs.200,000,000/= was reduced to a mere Shs.7,000,000/= and in
General Parts (U) Ltd. v. Non-Performing Assets
Recovery Trust,
(supra), or reference, we reduced the award of
Shs.188,927,427/= allowed by the taxing officer to a mere Shs. 15,000,000/=.
There appears to
be a good reason for compiling these taxation decisions and
references in a volume to be made available to advocates and
registrars.


I will now consider the reasonableness of the award of
instructions fee by taxing officer in this case.
As Odoki, J.S.C, (as he then
was) observed in the case of Attorney General v. Uganda
Blanket Manufacturers,
(supra),





"I believe that the intention of the rules was to strike the right balance
between the need to allow advocates adequate remuneration
for their work and the
need to reduce the costs to a reasonable level so as to protect the public from
excessive fees."

In that case the learned Lord Justice reduced the amount of Shs.230,092,100/=
awarded by the taxing officer to Shs.,57,092,100/=.


In my view, in
making his ruling in this reference, the learned taxing officer appears to have
been guided by wrong principles. When
counsel submitted that there was nothing
complex or important points of law involved in the appeal to justify a higher
award of costs,
the taxing officer reasoned for a higher award by observing that
the leading judgment of the court reveals that it was detailed and
involved and
that both sides had submitted detailed written submissions. With respect this is
not what makes a case complex or involve
complicated points of law. Nor do I
believe that the issue of fraud and the law applicable or its interpretation
per se, necessarily make a case complex as ruled by the taxing officer.
It is certainly a wrong principle applied by the learned taxing officer
to say
that counsel for the applicant had failed to suggest the amount of award other
than the Shs.48,000,000/= which was reasonable.
The same point is made by
counsel for the respondent when reluctantly supporting the award of instructions
fee by the taxing officer.
In my view, had the taxing officer taken into account
relevant factors and been guided by the correct principles, he would have
awarded
a much smaller sum as instructions fee.


It is clear that
certain matters contended before me by counsel for the applicant and which are
reflected in Rule 9(2) of the 3rd Schedule to the rules of this court
were not taken into account by the taxing officer. These included the interest
of the parties,
other costs to be allowed, the fund or person to bear the costs
and all other circumstances. Mr. Eriya Kategaya, who represented
the applicant
before me submitted that the applicant who is the party to bear the costs is a
sick and poor person who has previously
failed to pay taxed costs in other
suits. Before the learned taxing officer, counsel for the applicant contended
that the then appellant
had been taxed the sum of Shs. 1,500,000/= which the
taxing officer did not take into account. The taxing officer cites the lengthy
and involved judgment of the court as one of the justifying grounds for a higher
award of costs. In my view, the nature and style
of a judgment does not
necessarily reflect the actual work done by counsel who appeared before the
court. This is yet another wrong
principle applied by the taxing
officer.

All in all, it is my view that the amount allowed as a fee for instructions
are grossly excessive and in light of my findings in this
reference, the amount
should be drastically reduced. I would therefore disallow the instructions fee
of Shs.48,000,000/= and order
that it be reduced to Shs.5,000,000/=. I would
order that the sum of shs.500,000/= be awarded to the applicant as costs for
this
reference in this court.

Dated at Mengo this 26th day of May 2004.

G.W. KANYEIHAMBA

JUSTICE OF THE SUPREME COURT