Court name
Supreme Court of Uganda
Judgment date
29 August 2004

Hartjna Mtjlangwa v Shariff Osman (Civil Reference-2004/3) [2004] UGSC 26 (29 August 2004);

Cite this case
[2004] UGSC 26

THE REPUBLIC OF UGANDA

IN THE SUPREME COURT OF UGANDA
AT MENGO

(CORAM: J. W. N. TSEKOOKO, JSC. - SINGLE
JUDGE)

CIVIL REFERENCE NO.3 OF 2004.

BETWEEN

HAJI HARTJNA MTJLANGWA. APPLICANT
AND
SHARIFF OSMAN
RESPONDENT

[Reference to a Single Judge from a ruling of the Registrar, Supreme
Court as Taxing Officer at Mengo (W.Masalu-Musene, Esqr.) dated
10th of March,
2004 in Civil Appeal 38 of 1995]

RULING: This is a reference to me as a single judge, from the
order of the Registrar of this Court in his capacity as taxing officer. The
taxing officer overruled an objection by Mr.Tibaijuka, counsel for the
applicant, regarding the form of- the bill of costs presented
by Musoke &
Co. Advocates, current advocate on behalf of the respondent after a change of
advocates.

This matter first came up for hearing on 20/7/2004. Because Ms. Musoke, the
respondent's counsel, who had presented the said bill
of costs had withdrawn
from the matter, I adjourned the hearing to 2 7/7/2 004, to enable the
respondent who was known to be
in Kampala to be served personally. He was
duly served.

On 27/7/2004, he appeared in person and unsuccessfully sought adjournment. I
was not satisfied with the reasons upon which adjournment
was sought. My reasons
for refusing the adjournment appear on the record.

I should set out the background. The applicant, as plaintiff, won a civil
suit against the respondent in the High Court. The respondent
unsuccessfully
appealed to this Court in Civil Appeal No.38 of 1995. The present
applicant, as respondent in that appeal, had filed a cross-appeal. He was
unsuccessful in that cross-appeal. In the appeal
the present applicant was
awarded the cost of the appeal and costs of the trial court. At the same time
the present respondent as
respondent to the cross-apeal was awarded costs.
Thereafter, Mr. Muwayire-Nakana, counsel who had been representing the appellant
in the appeal, died apparently before lodging his bill of costs in respect of
the unsuccessful cross appeal. In December, 2003, Musoke
& Co, Advocates,
took over and only drew up and lodged in the registry of this Court a bill of
costs for taxation in respect
of the unsuccessful cross-appeal. However in
drawing that bill, Musoke & Co. Advocates, included therein costs which
should have
been claimed by Mr. Muwayire-Nakana, the original advocate who
had, as stated earlier, represented the respondent as
a defendant in
the suit and the appellant on the subsequent appeal to this Court.

When the bill came before the taxing officer for taxation on 12/1/2004, Mr.
Tibaijuka, counsel for the present applicant, raised a
preliminary objection to
the effect that by virtue of paragraph 16 (1) of the provisions set out
in the 3rd schedule to the Rules of this Court, Musoke &
Co. Advocates, who appeared on the record from 15/12/2003 and only for purposes
of processing taxation
should not have lumped together in the same bill their
costs and those costs due to Muwayire-Nakana, the erstwhile advocates. Learned
counsel contended that the bill of costs as presented contravened the said
paragraph 16(1) and (2) (supra) and for her to claim the costs was wrong
in principle.

Ms. Musoke, for the respondent, before the taxing officer, opposed Mr.
Tibaijuka's objection contending that under para 16 (2) (supra), the bill
should be taxed in the ordinary way and that the bill as presented was in proper
form in as much as paragraph 16 (2) does not provide a format in which
the erstwhile advocates' separate items of costs should look like.

The taxing officer overruled Mr. Tibaijuka and upheld Ms. Musoke's
contentions. It is from that holding of the taxing officer that
the applicant
made this reference under Rule 105(1) of the Rules of this
Court.

The reference is based on three grounds: -Mr. Tibaijuka first argued ground
three separately before he argued the first and the second
grounds together.
The 3rd ground reads: -



The learned Registrar misdirected himself about the extent of the
applicant's objection, and wrongly assumed that what was objected
to were only
items 2, 3 and 4 of the respondent's bill of
costs."



It is the contention of counsel, that the
learned taxing officer misunderstood counsel's objection because, whereas he, as
the applicant's
counsel, contended that only items 5,6 and 10 of the bill were
properly included on the same bill of costs, and that the rest of
the items
should not have been included on the same bill of costs, the taxing officer in
his ruling implied that Mr. Tibaijuka had
objected to only items 2,3 and 4,
whereas in fact the objection went beyond these three items. Learned counsel
also criticised the
taxing officer for his failure to appreciate that Ms. Musoke
had virtually conceded to the objection.

Regarding this last contention, the record of the proceedings before the
taxing officer supports Mr. Tibaijuka's contention. For at
page 11 of the
record, Ms. Musoke is recorded to have submitted that: -

"Rule 16 (1) provides that if there is a change of advocates, the bill
of the first advocate may-be annexed to that of the current
Advocate and the
total be showed as disbursements. Items (2) (3) and (4) are under disbursements.
Those are items referred to first
advocate. But it (annexture) has to be shown
as disbursements with regard to item 1, the fee provided is money paid by the
appellant
to the advocate."

For the sake of clarity I reproduce the bill which was presented this way:
APPLICANT'S BILL OF COSTS

ITEM
DATE
PARTICULARS
AMOUNT
AMOUNT
TAXED
OFF
1.
1995
Instruction fees to oppose a
cross-appeal involving a
complicated contract of sale of land, demand for specific performance and
compensation.
Shs.10,000,000

2 .
23.5.1996
Disbursements:
Transport costs for Advocate from Kampala to
Mengo in Personal car for hearing and arguing the cross-appeal.
Shs.20,000

3 .
-do-
Transport costs for advocate From Mengo Court to Kampala In personal
car.
Shs 20,000

4 .
31.10.96
Transport costs for Advocate to and from Kampala to
Mengo in
personal car to receive judgment
Shs 30,000

5 .
10.12.2003
Transport costs for Advocate to and from Kampala to Mengo to file Bill
of Costs.
Shs.50,000

6 .
10.12.2003
Court fees for filing Bills of costs.
Shs 9,000

7 .
-
Commissioner's fees for Swearing affidavit of service
Shs. 2,000

8 .
-
Court fees for filing the same
Shs.1,500

9.
-
Transport costs for Advocate in personal car to file same
Shs.50,000

10.
19/12/2003
Transport costs for Advocate in personal car for taxation
hearing
Shs.50,000

11.
-
Court fees for certificate of taxation
Shs. 6,000



TOTAL
SHS.10,238,500

It is trite that a bill of costs is a factual statement of services rendered
and disbursements made and, if any of the facts alleged
in the bill are shown to
be untrue, e.g., if it is shown that a particular service charged for has not
been rendered or that a particular
disbursement has not in fact been made, the
relevant item in the bill must be taxed off: See Bhatt Vs Singh (1962) EA 103
at 104.


When sub paragraphs (1) and (3) of paragraph 2 of the 3rd
Schedule to our rules are read together, they in effect prohibit an
advocate who has not done any work from lodging a bill of costs
in which he or
she claims costs for work not done by him or her. For clarity I will quote the
relevant provisions. The provisions
state: -"2 (1) Where costs are to
be taxed, the advocate for the party to whom costs were awarded shall lodge his
or her bill with the
taxing officer.

(3) A bill of costs may not be lodged by an advocate who is
not on record"

The question pertinent to the matter before me is whether an advocate should
appear on the record merely to lodge bill of costs claiming
costs for service
that he or she never rendered?

In this regard it is instructive to reflect on what
paragraph 16 of the 3rd schedule to our Rules states. It
states:



"16(1) If there has been a change of advocates, the bill of costs of the
first advocate may be annexed to that of the current advocate
and the total
shown as disbursement.


(2) The bill shall be taxed in the ordinary way, the current advocate being
heard on it, but the taxing officer may require the first
advocate to
attend".

I have perused the record of the substantive appeal (in which I participated)
and civil application No.38/95 which I heard and settled
the order of the
judgment of the Court in the appeal. I have studied the record of this
application. It is clear from the said records
that Ms. Musoke did not
appear on the record as an advocate for the respondent until 15/12/2003 when she
only lodged the bill of costs now in dispute.
Indeed Ms. Musoke does not
appear to, nor could she, contest this. Yet her bill of costs which she lodged
and which appear above includes claims for
services rendered in 1995.





For instance, the first item claimed on the bill states: -"Instruction
fees to oppose a cross-appeal involving a complicated contract
of sale of land, demand
for specific performance and
compensation".


Clearly that item along with the claims for the year 1996 under items
2,3,4(supra) which relate to disbursements were due to the erstwhile
advocate
and are definitely caught by the provisions of paragraph 16 of the 3 rd
schedule.

The objection raised by Mr. Tibaijuka is similar to an objection raised forty
years ago against a similar bill of costs drawn in the
same fashion in the case
of Bhatt Vs Singh (Supra) where the taxing officer had upheld an
objection similar to that raised here. In that case, the taxing officer accepted
the objection
and disallowed the bill in toto, because, as in this case, the
only work done by the current advocates there was to draw up an order
and lodge
the bill of costs. A reference was made to a single judge of the East African
Court of Appeal. Sir Alastair Forbes, V.P, heard the reference and
affirmed the decision of the taxing officer. Because of the relevance of
that decision I reproduce it
in extensio. In his ruling the learned Vice
President referred to an earlier ruling in another reference by a different
Judge of
Appeal Sir Newnham of the same Court who had state that:

"A bill of costs is a factual statement of services rendered and
disbursements made and, if any of the facts alleged in the bill are
shown to be
untrue, e.g,. if it is shown that a particular service charged for has not been
rendered or that a particular disbursement
has not in fact been made, the
relevant item in the bill will be taxed off. The commonest example of this in
England is probably
the inclusion in the bill of counsel's fees which had not
been paid when the bill was presented: e.g. In re Taxation of costs:
In re
a Solicitor, [1943] 1 All E.R. 592 and Polak v. Marchioness of
Winchester, [1956] 1 W.L.R. 818. Now, if
the bill before me is judged by that
standard it should probably be taxed at Sh. nil for it is not a true
representation of the facts.
It purports to be an account of services rendered
to the appellants and disbursements made on their account by Messrs. Shah and
Gautama
and makes no mention of Mr. Nazareth. I have no doubt that it was a
genuine and well-meant attempt to meet the peculiar circumstances

resulting from Mr. Nazareth's having taken silk: it
is nevertheless, an inaccurate bill."


Thereafter Sir Alastair Forbes agreed with these
principles and stated: -

“On the principles applied by SIR NEWNHAM it seems to me that the
bill in the instant case is no more an accurate bill than
that which SIR NEWNHAM
was considering. It purports, on the fact (sic) of it, to be an account of
services rendered to the appellants,
of disbursements made on their account, and
of instructions given to counsel on their account, by Mandla & Co. It is not
a true
factual statement; and on the principles stated by SIR NEWNHAM, by which
as I have said, I am bound, I think that the taxing officer
was right to tax the
bill at Shs.nil, no application to amend having been made to him. The question
in issue is purely a matter of
form. The respondents were awarded their costs
and should, I think, be given the opportunity of recovering them by being
allowed
to file a bill in proper form. The form appropriate appears to be
adequately prescribed by Practice Note No.7 of
1956."

The note referred to by Sir Alastair Forbes, VP, spelt out at least
two important points:

First no one but the advocate on the record for the time being can lodge or
tax a bill.

Second if the advocates have been changed during the proceedings, the bill of
the first advocate may be annexed to that of the current
advocate and its total
shown as a disbursement. It may be shown as 'by anticipation', if unpaid. It
will be taxed in the ordinary
way, the current advocate being heard on
it.

Although the taxing Officer described this procedure as mere technicality,
those two points constitute the present paragraph 16 of
the 3rd schedule to our
Rules and I personally think that they are based on the need to prevent a
successor advocate from reaping
where he or she never sowed, a practice which
Mr. Tibaijuka says is rampant in High Court.

I think that Mr. Tibaijuka was justified in his objection to the bill. The
learned taxing officer overruled Mr. Tibaijuka's objection
on the basis that
para 16 does not set out the form of how the bills should look. With respect, I
think that the provision is clear.
The items which should have been claimed by
the previous advocate must be listed separately on a separate bill and be made
an annex
to the bill of the current advocate. The current advocate should
explain to the taxing officer what costs are due to him or her and
those due to
previous advocate.

In that way the bill presented for taxation would be stating the true
position. It is not just a question of form curable under Article
126(2)(e) of
the constitution as stated by the learned taxing officer. The bill as presented
indeed purports to show that Ms. Musoke
had been herself instructed in 1995 to
oppose the cross-appeal and was therefore entitled to claim shs 10,000,000/= as
instruction
fees. Of course that is fundamentally and absolutely false and it
must not be encouraged.

Further Mr. Tibaijuka justifiably criticised the taxing officer when the
latter appeared to imply that counsel did not object to the
first item in the
bill.

Therefore ground three must succeed. This really disposes of
this reference. I find no need to discuss the remaining
two grounds.

Consequently I allow this application. I set aside the order of the taxing
officer. I uphold the objections raised before the Taxing
officer by Mr.
Tibaijuka. I order that the respondent may lodge his own bill of costs claiming
any costs due to him or if he wishes
to engage an advocate that advocate may
amend the bill now filed or file two separate bills of costs namely one for the
current
advocate and the other for messrs Muwayire-Nakana, the previous
advocate. The latter is to be annexed to the former
as stipulated
by para 16 (2) of the 3rd schedule. The applicant in this reference will have
the costs of this reference in any event.






J. W.N. Tsekooko
JUSTICE OF THE SUPREME COURT.