[2024] UGHCCD 113

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### CIVIL DIVISION

# **MISCELLANEOUS CAUSE NO. 0108 OF 2024**

GP ADVOCATES::::::::::::::::::::::::::::::::::::

## **VERSUS**

ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

#### BEFORE: HON. JUSTICE SSEKAANA MUSA

## **RULING**

This is an application brought under Section 98 of the Civil Procedure Act and Section 33 of the Judicature Act and Order 52 Rules 1 and 3 of the Civil Procedure Rules seeking the following orders of court;

- a) The Ministry of Information Communication Technology and National Guidance or any other Ministry of Government pays the applicant, as their legal fees, 20% of the pension arrears due to the former employees of Uganda Posts and Telecommunications Corporation UPTC in HCCS No. 392 of 2002 Alima Santos & Another vs Attorney General, as computed by Auditor General and stated in the report of May 2022 on the verification of terminal benefits/pension of the former employees of UPTC; - b) Costs of the application be provided for

The background to this application is set out in the notice of motion and affidavits of Alima Santos and George Omunyokol which briefly is as follows;

GP Advocates, the Applicants herein, successfully represented 677 former 1. employees of UPTC who retired before 1" January, 1996 in HCCS No. 392 of 2002 Alima Santos & Another -vs- Attorney General and obtained a consent judgment for, among others, payment of terminal benefits and pension arrears by Government to the said pensioners.

- The Applicants have been rendering legal services to former employees of 2. UPTC in HCCS No. 392 of 2002 Alima Santos & Another -vs- Attorney General for over twenty years now. - The said UPTC Pensioners have: -3. - agreed and resolved to pay M/s GP Advocates, the Applicants $(a)$ herein, 20% (twenty percent) of the total pension arrears payable to them by Government following the successful conclusion of their matters in the Courts of law; - requested the Ministry of Finance, Planning and Economic $(b)$ Development and the Ministry of Information Communication Technology (ICT) and National Guidance to deduct, at source, 20% (twenty percent) of their pension arrears as computed by the Auditor General and pay the same to the Applicants, as their legal fees, and also pay 80% thereof, being the remainder, to the UPTC Pensioners in their individual bank Accounts which are already with the Ministry of ICT and National Guidance. - The Ministry of ICT and National Guidance, being the Ministry that 4. Government has mandated to pay pension to the former employees of UPTC, has, in writing, declined to pay the said 20% pension arrears to the Applicants inspite of their written request for it to do so. - The UPTC Pensioners have issued individual Letters of Instruction to the 5. Permanent Secretary ICT and National Guidance authorizing her to deduct, at source, the said 20% of the pension arrears due to the pensioners and pay the same to the Applicant but the said Ministry has on advise from the Respondent failed or refused to do so. - Unless directed by this Court to pay the Applicants their legal fees, as stated 6. above, the Permanent Secretary, Ministry of ICT and National Guidance will not pay the said 20% pension arrears to the Applicants who stand to lose

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their legal fees especially given the following unique circumstances of this case:-

- the said UPTC Pensioners, do not have money or known source of $(a)$ income for paying legal fees to the Applicants, save from the pension arrears due to be paid to them by Government; - it is impracticable for the Applicants to collect their legal fees from $(b)$ the said Pensioners individually as they are now scattered and are living in different parts of Uganda; - the Ministry of Finance, Planning and Economic Development has $(c)$ written to the Ministry of ICT and National Guidance indicating that Government will pay the pension arrears to the UPTC Pensioners in the Financial Year, 2024/2025, which commences in July, 2024; - there is, therefore, a grave possibility of the Applicants not getting $(d)$ their legal fees from the said pension arrears due to be paid by Government to the UPTC pensioners in the above case.

The respondent in their affidavit in reply deposed by Charity Nabasa contended mainly that;

- 1. That the respondent is obligated under the law to pay terminal benefits and entitlements to the pensioners. - 2. That the respondent is not privy to any specific instructions to deduct 20% of the pensioner's benefits and entitlements and the same have to be paid to the applicants. - 3. That the pension under the law is not assignable and the agreements/consent executed by the pensioners is prohibited by law.

# **ISSUES**

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Whether the Ministry of ICT and National Guidance or any other Ministry or agency of Government should deduct 20% of the pension arrears due to the former employees of UPTC in HCCS No. 392 of 2002 Alima Santos & Another -vs-Attorney General and pay the same to the Applicants, as their legal fees, for representing the former employees of UPTC in their Court matters.

#### **Legal Representation**

The applicant was represented by George Omunyokol the Managing Partner of the applicant and Anguaria Edward while the respondent was represented by Allan Mukama (State Attorney)

## Determination of the Issue

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The applicant's counsel submitted that the court has wide discretionary and inherent powers under section 98 of the civil Procedure Act and Section 33 of the Judicature Act to grant such remedies sought.

The refusal by Government to deduct the 20% (twenty percent) legal fees from the pension arrears of the UPTC Pensioners and pay the same to the Applicants is without any legal justification. There is an advocate client relationship that has existed between the Applicants and their clients for over twenty years. It started in 2004 and there is no evidence that it has been terminated. Under Regulation 6 of The Advocates (professional Conduct) Regulations,

# "...an advocate shall be personally responsible for work undertaken on behalf of a client and shall supervise ..."

Under Regulation 8 of The Advocates (professional Conduct) Regulations, an advocate has a duty to account for money of a client. Under Regulation 8(2) the advocate has a duty to make full disclosure to his client of the amounts and nature of all payments made to the advocate on behalf of the client and to make payments to a client. The advocate is required to set out in writing the sums received on behalf of their client and any deductions made by the advocate from those receipts. Ordinarily, the Government should have paid the entire pension arrears to the Applicants for onward transmission to their clients in accordance with the principles laid down in the above provisions. Government interfered with this process without any legal justification. As a fall back, the Applicants' clients requested for a deduction of 20% of their pension arrears to be paid to their lawyers as their legal fees. This was reasonable in the circumstances because the deduction would have been carried out by the Applicants at the time of making payments as they had done before in accordance with the Consent Order signed

in 2020. The Applicants' clients are now scattered all over the country and is very difficult to collect all the legal fees from each of them.

The applicant's counsel relied upon the case of Matovu & Matovu Advocates -vs-Attorney General Court of Appeal Civil Application No. 560 of 2022. In that case, the Applicants, a Law Firm, Matovu & Matovu Advocates, represented 1600 former employees of Uganda Telecom Limited (UTL), Uganda Posts Limited (UPL), Uganda Communications Commission (UCC) and Post Bank Limited (PBL) in the High Court in a representative suit for recovery of pension, interest general damages and costs vide HCCS NO. 135 of 2003 Benard Mweteise & others -vs-UTL, UPL, UCC, & Others. The High Court entered judgment in favour of the Plaintiffs in that case. UPL and UTL separately appealed to the Court of Appeal. The appeals were consolidated and heard. Judgment was entered in favour of the former employees of UTL and UPL. Government committed itself to pay the former workers their pension. As the Ministry of ICT and National Guidance was processing payments of the pension arrears a controversy arose as to whom the payment should be paid. The debate was whether the payments of the ascertained unpaid decretal sum should be paid directly to the bank accounts of each one of the individual decree holders or whether the payment should be paid by Government to the Applicant as counsel for decree holders.

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Counsel for the applicant believes this case is on all fours with present application since the court ordered the Attorney General to pay 80% directly to the bank accounts of the beneficiaries and 20% to the applicants/advocates.

The respondent's counsel vehemently opposed the application and contended that the demand to be paid 20% by the applicant is illegal and contrary to the

Section 16 of the Pensions Act. Counsel submitted that the pensioners/beneficiaries are not permitted to assign their terminal benefits to the applicants for the settlement of the applicant's fees in consideration for the legal fees they rendered save for circumstances permissible by the law.

It was further contended by the respondent's counsel that the applicant is at liberty to demand their payment from pensioners they represented once the respondent has discharged its obligation to the pensioner as required by law. The prayer sought by the applicant if granted would amount to an illegality as the same is expressly barred by law.

Secondly, the respondent further challenged the application on the basis that the Advocates Act Section 26 prohibits advocates from entering into agreements for sharing a proportion of the proceeds of a judgement like in this present case. In counsel's view the applicant's resolution executed by the Chairperson and secretary on behalf of pensioners are a contravention of the law. In support of this argument, counsel cited the case of Shell (U) Ltd & 9 Others v Muwema & Mugerwa Advocates and Solicitors Supreme Court Civil Appeal No. 02 of 2013. Counsel.

The respondent expressed further reservations that would result should the court allow the applicant to be paid 20% of the pension which in their view will be illegal and that the applicant is likely to renege on their agreements/consent and payment from Government demand $\sf{full}$ as required by law. The consent/resolution relied upon by the applicant which were prepared by the applicant was done by the chairperson and secretary and the role of the respondent was mere advisory and the AG was never consulted on the legality of

the consent. The court should not grant the orders sought in absence of the clients of the applicant.

## **Analysis**

It would appear it is not in dispute that the applicant represented the group pensioners in civil suit no. 392 of 2002 and indeed the respondent made a part payment to this group of pensioners through the same applicants- Omunyokol & Co Advocates (GP Advocates) before the respondent stopped the payment and it resulted in a suit to recover the pension arrears.

The applicant was retained as a law firm to help in the recovery process of the pension arrears outstanding or unpaid by the respondent's Ministry of Information that is responsible for the former workers of UPTC.

There is an existing advocate-client relationship which has existed for over 20 years as the pensioners have struggled to enforce their rights to pension or gratuity which was withheld or denied by the respondent until the court make orders or declarations that they should be paid their pension and all the arrears. The pensioners lead applicant/plaintiff has testified to this in his affidavit as follows:

"THAT we later noted that Government had stopped paying us our pension increments contrary to the terms of the consent judgment and we again went back to our said lawyers with a request that they help us recover the pension increments which Government had without any justification stopped to pay us our pension increments.

THAT I know that our said lawyers tirelessly followed up the matter of payment of our pension increments from the time Government stopped paying the same to us from 2003. Government, however, completely failed or refused to pay us our pension increments.

THAT in 2010, following the failure by Government to pay our pension increments for about seven years, we again, on advice of our said lawyers, went back to Court and through our said lawyers, filed an application in the High Court, vide HCMA No. 122 of 2010 Alima Santos & Anor -vs- Attorney **General** for the payment of our pension arrears and pension increments."

The respondent's counsel is opposed to payment of 20% to the applicant contending that it is against the Pensions Act. The facts of the present case are peculiar and indeed were never envisaged under the Pensions Act. The respondent refused to honour its statutory obligation to pay pension to the persons affected and was dragged to court through the efforts of the applicant. The person/pensioners have become entitled to pension by the civil suit filed which resulted in a declaration of court and later a consent to pay them.

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The persons who took full benefit of the legal services are willing to pay the 20% and have expressed their willingness through a consent but their only source from which they could pay is the pension arrears due to them. They have indeed expressed their will in signed documents during their meeting and the same ought to be given effect. The respondent who had appealed the decision of the court decided to have the appeal withdrawn and clearly agreed that each party shall bear their own costs of this appeal.

The withdraw of the appeal by consent clearly shows that the pensioners have to meet the costs of litigation which is the 20% and it is not in dispute as per the record of documents. It would be unfair and unjust for the respondent who has at all material times dealt with the applicant in the matters to turn around and question the applicant's entitlement. In addition, the respondent should not term the claim unfair to the pensioners and or to insist that the pensioners ought to be involved before the court gives these orders.

The position of the law as regards pension as envisaged under the Pensions Act under section 16 is that the "pension, gratuity and other allowance granted under the Act shall not be assignable or transferrable except for purpose of satisfying....." This position of the law has some constitutional issues and must be applied with necessary modifications to the different circumstances like in the present case.

The applicant is claiming from the pension arrears which have accumulated over the years the respondent reneged on the consent or refused to pay the pensioners and in turn this brought the applicant on board to assist the pensioners to recover their unpaid pension for over a period of time. In my humble view the applicant is not seeking to recover from the monthly pension payable in accordance with the Pensions Act.

The respondent contended that the applicant should recover from the 677 pensioners after they have been paid by the respondent. The applicant has equally informed the court that the said pensioners are scattered all over the country and it would be extra burden on them to get the payment of their 20%. The court is mindful of the challenges associated with recovery of costs from litigants who have received payment and this would trigger several suits for recovery of costs by the applicant. The circumstances of this case are very peculiar and should be considered and I hasten to add that they should not be used as a precedent for recovery of costs from respondent.

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This court is well guided and bound by decision of court in the case of Matovu & Matovu Advocates -vs- Attorney General Court of Appeal Civil Application No. 560 of 2022 where Justice Hon. Mr. Justice Muzamiru Mutangula Kibeedi, held as follows:

> ".... I have taken into account the fact that the dispute which is the subject matter in Civil Application number 562 of 2020, revolves around mode of payment: Should government pay the applicant's clients directly or it should pay counsel and counsel, in turn, pays his clients? Or, should government pay 80% to the clients directly and pay 20% to counsel?. That's what the dispute is all aboutpayment...."

At page 10, paragraph 37 of his ruling the Hon. Mr. Justice Muzamiru Mutangula Kibeedi, JA, further held,

> "I have also considered the stake holders in the whole subject. Ordinarily, once counsel is instructed by a client, then he is the one who is legally mandated to represent the clients at all phases, including at the payment stage. Further, that once payment is made to one's advocates, it is in law as good as payment to the client himself with the consequence that the judgment debtor becomes discharged upon effecting the payment to the advocate.

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I have also considered the number of litigants who were represented by the applicant for over 20 years. 1600 clients spread all over the country is not a small number. The intricacies of managing that relationship up to the time of getting a judgment in their favour are best known only by the applicant and not us who were not part of their struggle. But what is for certain is that it is definitely not any easy experience managing such a number of clients.

And from the record, several of the applicant's clients were indigent clients; they could not afford to pay upfront for the legal services which led to the victory they are proud of. Nonetheless, their

economic situation should never, and did not, make them any less entitled to be represented because they had a genuine legal claim. So how does court ensure that legal representation for such people is not compromised from the type of decisions we make as judicial officers? To me this has been one of the critical balance I have to make.

I have also had to balance with the realities of human behavior characteristic of most ordinary clients after they have already won their case..."

At page 11 paragraph 41, the Hon. Mr. Justice Muzamiru Mutangula Kibeedi, JA, also held,

> "... after a lawyer has assisted a client score legal success through a judgment, the value of a lawyer in the perception of the client diminishes. At that stage, the readiness of the client to pay the lawyer likewise goes down. The consequences is that it becomes extremely difficult for a lawyer to start billing and recovering from his or her client at the stage when the lawyer's perceived value to has the client

> diminished.................................... ......................................

> perception of the value of the advocate starts going down. when the client's perception of the advocate's value is on the downward trend, ............ it becomes extremely difficult for the advocate to be

paid by each of the 1600 or so clients spread all over the country. if I am not a live to the behavior of clients when it comes to settlement of their advocates fees and refunding the disbursements incurred in the litigation journey, I would be unwittingly frustrating legal practice in general and, in particular frustrating the commendable work done by the advocates who go out of their way to assist such needy litigants...."

This court orders that; The Ministry of Information Communication Technology and National Guidance or any other Ministry of Government pays the applicant, as their legal fees, 20% of the pension arrears due to the former employees of Uganda Posts and Telecommunications Corporation UPTC in HCCS No. 392 of 2002 Alima Santos & Another vs Attorney General, as computed by Auditor General and stated in the report of May 2022 on the verification of terminal *benefits/pension of the former employees of UPTC;*

The 80% of the pension arrears should be paid directly to the respective pensioners or beneficiaries on their bank accounts.

Each party should bear their own costs in this matter.

It is so ordered.

ans m

**ŠSEKAANA MUSA JUDGE** 19"/07/2024

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