Court name
Supreme Court of Uganda
Judgment date
14 November 2004

Yesero Mugenyi v 1 Philemon Wandera and Ors (Civil Application-2004/20) [2004] UGSC 30 (14 November 2004);

Cite this case
[2004] UGSC 30

IN THE SUPREME COURT OF UGANDA

HOLDEN AT MENGO


CORUM: J. N. MULENGA, JSC.

CIVIL APPLICATION NO.20 OF 2004

BETWEEN


YESERO MUGENYI APPLICANT

AND

1. PHILEMON
WANDERA
2. HOIMA S.S.S. PARENTS'
ASSOCIATION
3. BOARD OF GOVERNORS
HOIMA S.S.S.
4. HOIMA S.S.S,
RESPONDENTS

(A reference to a single Judge from a Taxation Ruling by the Registrar of
the Supreme Court (W.N. Musene Esq.) dated 18.5.2003 in Civil Appl.
13/03)


RULING.

This is a reference under rule 105 of the Rules of this Court, from a
taxation ruling by the Registrar of this court as Taxing Officer,
in the above
mentioned application, allowing the respondents' Bill of Costs at Shs. 4, 085,
000/=.

At the out set, I should observe that the record before me comprises of only

• The Bill of Costs

• The Taxing Officer's notes of the proceedings at the taxation hearing;
and

The
Taxing Officer's ruling.

The record does not include
the Court order awarding the costs, let alone the proceedings leading to it.
However, I have gathered
from the Bill of Costs and the Taxing Officer's notes
of submissions to him by counsel, that this Court awarded the costs in issue
upon allowing the respondent's application for an order to strike out the
applicant's Notice of Appeal. It is common ground that
the said application was
uncontested. Although the applicant was duly served, he did not make a reply to
the affidavit in support
of the application, nor did he appear at the hearing of
the application.


The respondents' Bill of Costs was for a total sum
of shs. 10,096,000/=. At the taxation hearing, shs. 11,000/= was taxed off by
consent.
The only contentious item was the instruction fee, in respect of which
the respondents claimed shs. 10,000,000/= and the applicant
conceded shs.
1,000,000/= only.

In his brief ruling, the Taxing Officer, after reviewing submissions by
counsel, had this to say -

"It is my humble view that indeed as stated by Mr. Kunya, instruction fees
for applications are different from substantive appeals.
Nevertheless, I find
the sum of shs.1,000,000/= proposed by Mr. Kunya too low for an application in
the Supreme Court of Uganda.






In the case of Patrick Makumbi and Another vs. Sole Electrics (U)
already quoted, the Hon. Justice Manyindo D.C.J, as he then
was,

observed that since the matter in that case was conceded to in a matter of
minutes and did not take long, an award of shs.2,000,000/=
was reasonable. So
even if I was to go by Mr. Kunya arguments that this application was not
contested and did not last long, all
the same if in a similar short matter,
shs.2,000,000/= was awarded in 1994, then the present application deserves more.
One has to
take into account inflation. Shs.2,000,000/= in 1994 was a lot of
money compared to its value today.




Having stated as above and on the other hand the sum of shs.l0m/= proposed
by Ms Grace Babihuga is definitely too high. In the circumstances,
and in view
of what I have outlined, and taking into account the principle of consistency of
awards increment (sic) applications
before the Supreme Court, I find and hold
that a sum of shs.4,000,000/= is reasonable instruction
fees."

This reference is on the following two grounds -

"1. The amount of shs. 4,000, 000/= allowed as ... instruction fee ... is
manifestly excessive in all circumstances of this
application.

2. The Taxing Officer erred in law when he failed to exercise his
discretion judiciously and thereby awarded as costs, instruction
fees which were
excessive."

Mr. Kunya, counsel for the applicant contended that having regard to the
nature and simplicity of the application, an instruction
fee of shs.4,000,000/=
was manifestly excessive. Secondly, he submitted that the Taxing Officer had
based the assessment of the instruction
fee on the wrong premise, namely that
costs in the Supreme Court must necessarily be higher than in lower courts.
Learned counsel
also criticized the Taxing Officer for taking inflation into
consideration when there was no evidence of any inflation before him.
In his
view a reasonable instruction fee would have been between shs.1, 000,000/= and
shs.1, 500,000/=.


In reply, Mr. Mwebembezi, counsel for the
respondents, submitted that the application was not as simple as contended by
counsel for
the applicant. Though it was heard ex-parte, there had been
no prior indication that it would be uncontested, and consequently counsel had
to prepare for the hearing to satisfy
the Court with grounds to strike out the
Notice of Appeal. Secondly, he submitted that unless it is shown that the sum
allowed by
the Taxing Officer is manifestly excessive, it is not justified, on a
reference to interfere merely because of a difference of opinion
on what is an
appropriate fee. He maintained that in the instant case the amount allowed for
instruction fee was not manifestly excessive.
He also contended that the Taxing
Officer's allusion to costs in the Supreme Court was not the basis of his
assessment of the instruction
fee. According to him, the Taxing Officer relied
on, and followed Patrick Makumbi and Another vs. Sole Electrics (U)
Civil Application No.11/94 (unreported) and allowed a factor of
inflation, which he was entitled to do.


The grounds upon which the
Judge in a reference under rule 105, such as this, may interfere with the Taxing
Officer's assessment of
costs, are clearly set out in the rule. He may do so on
the ground either that, in all the circumstances of the case, the costs allowed
are manifestly excessive or inadequate, or that the assessment was erroneous on
a matter of law or principle. The circumstances that
the Judge should consider
in determining if the costs allowed are "manifestly excessive" or "manifestly
inadequate", are basically
the same factors, which the remuneration rules permit
the Taxing Officer to consider in assessing the reasonable costs, but the Judge
must avoid merely substituting his opinion as to what is reasonable. In other
words, the Judge has to consider, not what he/she would
have allowed on
taxation, but whether what the Taxing Officer allowed is clearly in excess of or
below what is reasonable. There
is no hard and fast formula to apply. However, I
agree with the view expressed by the East African Court of Appeal in
Pramchand Raichand Ltd vs. Quarry Serviced Ltd, (1972) E.A.
162, that in assessing instruction fee, the correct approach is what was
suggested by Pennycuick J. in Simpsons Motor Sales (London) Ltd vs.
Hendon Corporation
.
(1964) 3 All ER 833, when he said -

"..one must envisage a hypothetical counsel capable of
conducting the particular case effectively but unable or unwilling to insist
on
the particularly high fee sometimes demanded by counsel of prominent reputation.
Then one must know the fee this hypothetical
character would be content to take
on the brief."
In Nicholas Roussos vs. Gulam Hussein Viran and
Another
Civil Appeal No.6/95 (SC) (unreported), Manyindo D.C.J.,
after citing the same passage with approval observed -

"Clearly, it is important that Advocates should be well motivated but
it is also in public interest that costs be kept to a reasonable
level so that
justice is not put beyond the reach of the poor"
In the instant case,
the Taxing Officer allowed the instruction fee in question for the Advocate's
work in preparing and prosecuting
an application that was not contested.
Although counsel for the respondents submitted to me that the application was
not simple,
he did not indicate any complexity or other difficulty encountered
in handling the application. I am unable to envisage any simpler
work than is
apparent in the instant case. Indeed, it is clear from the record available to
me, that in assessing the fee, the Taxing
Officer was not asked to, and did not
consider any complexity in the application. In my view, this is a clear example
of a case where
I can say with a reasonable degree of certainty that the
hypothetical competent counsel would not insist on as high an instruction
fee as
shs. 4,000,000/=. I therefore find that in all the circumstances, the
instruction fee, as taxed, is manifestly excessive.
Ground 1 of this reference
succeeds.


The three considerations, which weighed on the Taxing
Officer's mind in assessing the instruction fee, are -

That shs. 1,000,000/= is
too low as instruction fee for an application in the Supreme
Court;
consistency of awards in Supreme
Court applications, using the award in Patrick Makumbi's case
(supra) as guide;
and
inflation.

In
my view, the learned Taxing Officer misdirected himself in respect of all three
considerations. Instruction fees for work in the
Supreme Court are not
necessarily higher than for work in other superior courts as is implied in his
ruling. Although different scales
of fees are applicable to work in different
courts, there is no basis for the proposition that the scale for work in the
Supreme
Court is higher. Interestingly, it is noteworthy that the relevant rules
give the opposite impression, in that the minimum fee prescribed
for
applications in the Supreme Court is lower than that for applications in the

High Court. The Third Schedule to the Supreme Court Rules 1996, provides in
paragraph 9(1), as does a similar schedule to the Court
of Appeal Rules in
identical terms, that -
"The fee to be allowed for instructions to
make, support or oppose any application shall be a sum that the taxing officer
considers
reasonable but shall not be less than shs.1,000".
On the other
hand, the Sixth Schedule to the Advocates (Remuneration and Taxation of Costs)
(Amendment) Rules 1996 provides in paragraph
1 (a)(vii) that the fee for
instructions -
"for applications, notices of motion or chamber
applications where the application is unopposed not less than shs. 100,000/=
where
the application is opposed not less than shs. 150,000."
In my
view, the quantum of instruction fee relates to the value attached to the work
done, not to the hierarchy of the court in or
for which the work is
done.

With regard to the Taxing Officer's second consideration, it is plain that
the circumstances in Patrick Makumbi's case (supra) are
distinguishable. The instruction fee in issue in that case was for prosecuting
an appeal. Although it was an interlocutory
appeal, which did not proceed to
full hearing because on the hearing date the respondent conceded, counsel for
the appellant was
entitled to a full instruction fee for the appeal. It is
indisputable that the responsibility for advising a client to appeal, and
the
work involved in compiling the memorandum and record of appeal and in preparing
for the hearing of an appeal, are not comparable
to, and far out weigh what is
involved in an application to strike out a Notice of Appeal. Invariably the
latter is cleaning exercise
where the intending appellant has lapsed into
inactivity, through either inadvertence or realization that there is no merit on
which
to proceed. The fact that in both cases the hearing did not proceed does
not make them similar for purposes of assessing the instruction
fee. Lastly, the
consideration of inflation was without sound basis. Even if the decision to
allow the sum of shs.2,000 000/= in
Patrick Makumbi's case,
is taken as a reasonable guide, which I reiterate it is not, no evidence
or even argument was before the taxing officer, indicating
reduction in money
value since that decision, let alone that the value had reduced to the extent of
about 100 per cent. I agree that
in maintaining consistency of costs, regard
must be had to inflation, but this must be done rationally and not arbitrarily.
I find
that overall, the learned Taxing Officer applied wrong principles in
assessing the instruction fee, and I hold that ground 2 also
succeeds.


In conclusion, it is my considered opinion that the sum
taxed and allowed by the taxing officer ought to be reduced. In addition to
what
I have already said, I should mention two other matters I have considered. One
is that there is nothing on record or in counsel's
submission to justify a high
instruction fee. The second, much as I was inclined to ignore it, is the
concession by counsel for the
applicant. In the result, I allow this reference
and set aside the sum of instruction fee taxed and allowed by the taxing
officer,
and substitute the sun of shs.1, 000,000/=. I award the costs of the
reference to the applicant.

Dated at Mengo this 15th day of November
2004
.

J.N. Mulenga

Justice of the Supreme Court