[2023] UGHC 373

#### **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT MASAKA**

## **TAXATION REFERENCE NO. 15 OF 2022**

## **(ARISING FROM TAXATION APPLICATION NO. 25 OF 2022)**

### **(ARISING FROM CIVIL SUIT NO. 18 OF 2021)**

## **MWESIGYE EMMANUEL & 5 ORS …………………………….…………… APPLICANT**

#### **VERSUS**

**DAVID RWAKAMPALA ………………………………...………………….. RESPONDENT**

#### **RULING**

*Hon. Lady Justice Victoria N. N. Katamba*

#### **BACKGROUND**

The Plaintiffs / Applicant's claim against the Defendant / Respondent is that the Plaintiffs / Applicants are the legal owners of part of the land comprised in LRV 2404, Folio 13, Mawogola Block 83, Plot 58 at Kisoko, Mijwala, Sembabule Town Council, Sembabule district having purchased part of the land from the Defendant through his appointed attorney Ssekimpi Emmanuel. The Plaintiffs further claim was that despite having paid the full purchase price, the Defendant / Respondent willfully refused to furnish them with the certificate of title, transfer forms, mutation form and other attendant documents for purposes of enabling them transfer their respective shares in the land into their names.

The Plaintiffs sought declarations that the 1st plaintiff is the legal owner of 115 acres, that the 2nd, 3rd and 4th Plaintiffs are the legal owners of 40 acres, that the 5th Plaintiff is the legal owner of 30 acres and that the 6th Plaintiff is the legal owner of 60 acres in the suit land. The Plaintiffs also sought an order compelling the Defendant to furnish them with the certificate of title to the suit land and other documents relevant to the transfer of the land to enable them register their shares in the land into their names. The Plaintiffs also sought general damages and costs of the suit.


The Defendant omitted to file a defence within the statutory period and the matter proceeded ex parte. The Plaintiff's Counsel applied for interlocutory judgment and the same was entered on 2nd November 2021 and the matter was set down for formal proof. Court entered judgment for the Plaintiff with the following orders,

- 1. The 1st Plaintiff Mwesigye Emmanuel is the legal owner of 115 acres, the 2nd Plaintiff Rufumika Wilson, 3rd Plaintiff Edward Mugisha and the 4th Plaintiff Patrick Kanana are the legal owners of 40 acres, the 5th Plaintiff Muhoozi Moses is the legal owner of 30 acres, the 6th Plaintiff Kyenkora Enock is the legal owner of 60 acres in the suit land described and known and described as LRV 2404 Folio 13, Mawogola Block 83, Plot 58 land at Kisonko, Sembabule Town council. - 2. The Defendant is hereby ordered to furnish the Plaintiffs with the certificate of title of the above described land, transfer forms, mutation forms and all documents necessary to enable the Plaintiffs transfer their various parcels into their names. - 3. The Defendant is also hereby ordered to appear beforethe Commissioner Lands Registration when required to do so for purposes of effecting the above mentioned transfers. - 4. In the alternative, the Commissioner is ordered to effect the said transfers on the suit land if the Defendant fails and or refuses to do so within 30 days from the date hereof. - 5. The Defendant is ordered to pay 10,000,000/= in general damages. - 6. Costs of the suit are awarded to the Plaintiffs.

The Applicants filed a Bill of costs. Both Counsel had a pre taxation meeting and by consent agreed on most items except 1-4 on instruction fees which were left to the taxing master to determine.

The issue of contention at the pre taxation meeting and before the taxing master was in regard to what instruction fees should court base on to award the same and to whether instruction fees should be charged differently or lumped all together for the Applicants;

The following were the figures for consideration by the taxing master.

1. **Shs 60,000,000/=** the Applicants indicated in the plaint as the value of the land at the time of filing the main suit and on which value they were accessed and paid filling fees


- 2. **Shs 487,200,000/=** consideration paid and received by the vendor as per the sale agreements that were attached to the pleadings and - 3. **Shs 2,900,000,000/=** being the current value of the land as per the valuation report made after the conclusion of the case

After listening to submission of both counsel on the matter, the Taxing Master made a ruling on the same and decided to go by the **Shs 487,200,000/=** paid and received by the vendor as per the sale agreements that were attached to the pleadings.

Being dissatisfied with the above decision the Applicants lodged this application.

#### **Taxation Reference Grounds;**

- *1. The learned taxing master erred in law and fact when he chose to rely on values that are more than 10 years old while accessing the value of the subject matter,* - *2. The learned taxing master erred in law and fact when he failed to rely on the valuation report prepared by Stanfield property Partners to access the current value of the subject matter of the suit property.* - *3. In the alternative, having held that the valuation report by Stanfield property Partners was one sided, the learned taxing master erred in law and fact when he failed to order for a joint valuation report to access the current value of the subject matter* - *4. The learned taxing master erred in law and fact when he rejected to access instruction fees for each of the plaintiffs according to each plaintiff's individual claim.*

## **Representation**

The Applicant was represented by **M/s Mayanja & Arinaitwe Advocates and Solicitors**.

The Respondent was on the other hand represented by **M/s Veritas Advocates.**

## **APPLICANT'S SUBMISSIONS**

In resolving this reference, the Applicant argued grounds 1,2 and 3 together.

Ground1- **The learned taxing master erred in law and fact when he chose to rely on values that are more than 10 years old while accessing the value of the subject matter.**


Ground 2**- The learned taxing master erred in law and fact when he failed to rely on the valuation report prepared by Stanfield property partners to access the current value of the subject matter**.

Ground 3- **In the alternative, having held that the valuation report by Stanfield Property partners was one sided, the learned taxing master erred in law and fact when he failed to order for a joint valuation report to access the current value of the subject matter.**

The Applicant submitted that according to the **6 th schedule, R1(1), Advocates (Remuneration and taxation of costs) (Amendment) Regulations, 2018**, the fees for instructions to sue, claim, defend or oppose are set as follows;

*1)* To sue or defend any case, whether commenced by plaint, statement of claim, petition, originating summons or originating motion or to present or oppose an appeal, where the claim or value of the subject matter can be determined from the pleadings, settlement, **a valuation** or the judgment, the instruction fee shall be in accordance with the scale below*. (emphasis ours)*

That from the above provision of the law, it means the value of the subject matter for taxation purposes can be discerned from the pleadings, settlement, a valuation or the judgment.

The Applicants further submitted that in the instant case, since the value of the subject matter could not be adequately discerned from the pleadings or judgment, they commissioned registered valuers to wit Stanfield Property Partners who valued the respective pieces of land i.e. 115 acres, 40 acres, 30 acres and 60 acres and they returned current values of UGX 1,300,000,000 (Uganda shillings one million three hundred million only), UGX550,000,000 (Uganda shillings five hundred fifty million), UGX300,000,000 (Uganda shillings three hundred million) and UGX 750,000,000 (Uganda shillings seven hundred fifty million) respectively. That it is those amounts that they subjected to the scale as per **6 th schedule R1(1).** That the taxing master disagreed with that approach and based the value of the subject matter on the sale agreements attached on the plaint/pleadings.

The Applicants contend that the Taxing master approach is problematic because the values expressed in the sale agreements are outdated and cannot represent the current value of the subject matter. For instance, **PE7** which is a sale agreement for Mwesigye Emmanuel (1st


Plaintiff) was made on **2 nd August 2012, PE 2**, the sale agreement for 2nd,3rd and 4th plaintiffs was made on **26th July 2012**, and **PE3**, sale agreement for the 4th plaintiff was made on the **26th July 2013** and **PE1** sale agreement for the 6th plaintiff was made on **20th June 2012***. (see paragraph V of PE1)*

The Applicants buttressed their submissions with the authority of **Nalubaale Ssali V J. W. B Kiwanuka and 3 ors Taxation Appeal No. 003 of 2013** wherein court held;

*"whereas it is highly likely that the suit land has since increased in value since 1999 when the lease was awarded, there is no proof as to the margin by which it has increased. I agree with Counsel for the appellants that during taxation, counsel for the respondent ought to have produced a current valuation of the suit land as of 2013 to justify its current value and hence justify the figure that was awarded in the taxation as instruction fees."*

The Applicants submitted that the facts of their case are similar to those of the cited case and that since the suit properties were acquired in 2012, it was in order and indeed necessary for the plaintiffs to produce a current valuation report to ascertain the current value of the suit land.

In respect to ground 3; the Applicants submitted that at no time did the defendant object to the report as being exaggerated or containing unrealistic values. That the fact that it was commissioned by the plaintiffs does not make it one sided and ripe for rejection. That furthermore, had the defendant so wished, he would have produced a valuation report to counter the one produced by the plaintiffs which he did not do.

In conclusion they prayed that this court be pleased to return Ground 1, 2 and 3 in the affirmative.

## Ground 4.-**The learned taxing master erred in law and fact when he rejected to assess instruction fees for each of the plaintiffs according to each plaintiff's individual claim.**

The Applicants submitted that **CS 18 0f 2021** consisted of 6 plaintiffs. That the first plaintiff Mwesigye Emmanuel was seeking recovery of 115 acres, Rufumika Wilson, Edward Mugisha and Patrick Kanana were seeking recovery of 40 acres, Muhoozi Moses was seeking recovery of 30 acres and Kyenkora Enock was seeking recovery of 60 acres of land.


Counsel for the Applicants further argued that, save for the 2nd, 3rd and 4th plaintiffs who had a joint claim, the rest of the plaintiffs had separate and distinct causes of action and each of the plaintiffs was entitled to recovery of individual instruction fees for instructing the advocate.

The Applicants supported their submission with the case of Uganda **National Examinations Board vs. The Management Committee of Kibiito Primary School and ORS CA 34 and 35 of 2015**, a case where the advocate represented several plaintiffs, it was held that there is no law that bars counsel from either charging individually or charging as a group.

It was submitted for the Applicants that likewise in the instant case, since the 1st, 5th and 6th plaintiffs had individual and distinct claims, they were charged instruction fees individually depending on their individual claims and that since the 2nd, 3rd and 4th plaintiffs had a joint claim, they charged them collectively.

On the basis of the above arguments, the Applicants concluded that the learned taxing master erred when he treated the claim as one joint claim and allowed taxation of instruction fees for only one plaintiff. They prayed that the ground be resolved in the affirmative.

## **RESPONDENT'S SUBMISSIONS**

The Respondent argued all the four grounds jointly and opened up his submissions with **Section 62 (3) of the Advocates Act Cap 267 which** provides that;

# (3*) With the consent of both parties, the taxing officer may refer any matter in dispute arising out of a taxation of a bill of costs for the opinion of a judge of the High Court*

He buttressed his submissions with the authority of *Peter Mulira & Another versus Walakira George Taxation Appeal No 08 and 09 of 2020, wherein this court while quoting the case of Bank of Uganda versus Banco Arabe Espanol SC Civil Application No 23 of 1999 and Thomas James Arthur versus Nyeri Electricity [1961] EA 492 stated that;*

*'It is trite that save in exceptional cases, a judge should not interfere with the assessment of what the taxing master considers to be a reasonable fee. Questions which are solely of quantum of costs are matters with which the taxing officer is particularly fitted to deal and in which he has more experience than the judge' (emphasis mine)*

 The Respondent cited **Regulation 13 of the Advocates (Remuneration and Taxation of Costs) Regulations SI 267-4 which** gives the taxation master power to exercise discretion in the process of taxing costs by allowing costs as authorized which appear to him or her to have been necessary for defending the rights of any party.

That the exception to the discretionary rule is where it is shown expressly or by inference that in accessing and arriving at the quantum of the fee allowed, the taxing officer exercised or applied a wrong principle. Application of a wrong principle is capable of being inferred from an award of an amount which is manifestly excessive or manifestly low.

In respect to grounds 1, 2 and 3, the Respondent referred this court to its own decision in **Peter Mulira & Another versus Walakira George Taxation Appeal No 08 and 09 of 2020, wherein this** court considered the value of the land as per the sale agreement annexed to the Defendant's Written Statement of Defence for purposes of determining instruction fees.

That whereas it is likely that the suit land has since increased in value, the Applicants bought at different times e.g Mwesigye Emmanuel bought in 2012, Rufumika Wilson, Edward Mugisha and Patrick Kanana bought in 2012, Muhoozi Moses bought in 2013 and Kyenkora Enock bought in 2019, for a combined fee of Shs 487,200,000/=

During taxation court may be guided by the current valuation of the suit land to justify the current value and hence justify the figure to be awarded as instruction fees. Their argument is that the valuation ought to have been done at the time of filing and not after the conclusion of the case and during taxation proceedings.

The Respondent also submitted that it would have been preferred that the valuation report be a joint work of both parties as contrasted to the instant case where it was generated by the Applicants alone which created a possibility of exaggeration.

The Respondent submitted that the general principles of taxation were spelt out by Justice Manyindo DCJ (As then was) in the case of *Makumbi & another versus Sole Electrics (U) Ltd [1990-1994] 1 EA 306, at page 310-311 where he stated that;*

*'The principles governing taxation of costs by a taxing master are well settled. First, the instruction fee should cover the advocates work, including taking instructions as well as other*


*work necessary for presenting the case for trial or appeal, as the case may be. Second there is no legal requirement for awarding the Appellant a higher brief fee than the respondent but it would be proper to award the Appellant's counsel a slightly higher fee since he or she has the responsibility to advisee his or her client to challenge the decision. Third there is no mathematical or magic formula to be used by the Taxing master to arrive at a precise figure. Each case has to be decided on its own merit and circumstances for example a lengthy or complicated case involving lengthy preparations and research will attract high fees. In a fourth, variable decree, the amount of the subject matter involved may have a bearing. Fifth, the taxing master has discretion in the matter of taxation but he must exercise the discretion judicially and not whimsically. Sixth while a successful litigant should be fairy reimbursed the costs he has incurred; the taxing master owes it to the public to ensure that costs do not rise above a reasonable level so as to deny the poor access to court. However, the level of remuneration must be such as to attract recruits to the profession. Seventh so far as practicable, there should be consistency in the awards made (see Raichand V Quarry Services of East Africa Limited and others [1972] EA162, Nalumansi V Lule Supreme Court of Uganda Civil Application No 12 of 1992, Hashjam V Zanab [1957] EA 255 and Kabanda V Kananura Melvin Consulting Engineers Supreme Court Civil Application No 24 of 1993)'*

The Respondent submitted that in the instant case, court should consider the fact that;

- *1. This matter proceeded ex-parte so there was no lengthy preparations and research.* - *2. The Respondent has been legally dispossessed of his land measuring approximately 234.90 Hectares with little or no chance to recover from Ssekimpi Emmanuel his agent who dealt with the Applicants.* - *3. Counsel did not prove to court that he was separately instructed by the applicants to warrant splitting up of the instruction fees.*

In conclusion, the Respondent prayed that this court adopts the same formula based on the sale agreements attached to the plaint whose combined total consideration is Shs 487,200,000/= and awards **UGX 16,240,000/=** or in the alternative **UGX 8,700,000/=** based on a claim as per the plaint as instruction fees which fee is reasonable and fair in the circumstances.


## **DETERMINATION BY COURT**.

I have carefully considered the pleadings and submissions of the parties in this matter and below are my findings;

The Respondent has set out the principles of taxation as they were stated by Justice Manyindo DCJ (As then was) in the case of *Makumbi & another versus Sole Electrics (U) Ltd [1990-1994] 1 EA 306, at page 310-311* I need not restate them verbatim but critical among them include;

- *i) Costs should not rise to such levels as to bar some classes of citizens from accessing justice in courts of law, this should be balanced with;* - *ii) Advocates should be well remunerated as to encourage new recruits into the profession among others.*

With the above background on the principles of taxation, I will now proceed to grounds 1, 2 and 3 jointly.

Whereas the Advocates Remuneration Rules, S. I No. 7 of 2018 in the sixth schedule guides court to among others consider a valuation of the subject matter where the value is not clearly ascertainable from the pleadings, the instant case is not one of such cases in which a valuation ought to be followed for the reasons below;

- a) The Applicants as Plaintiffs have not come to court with clean hands in as far as disclosing the value of the subject matter was concerned. The Applicant's/Plaintiffs as purchasers knew very well that the total value of the lands they purchased from the Respondents was **UGX. 487,200,000/=** but concealed it from the court when they under declared the value to be about or merely over **UGX. 60,000,000/=** in their plaint which was filed on 10th March 2021. - b) The Applicants' could only have been able to make up a case of their insistence to rely on the current value of the suit land if they had declared a more honest declaration of the value of the subject matter of the suit at institution. The enactors did not include among others, determination of instruction fees on the value of the subject matter in vain. It was intended to guide counsel to make an honest declaration of the estimated value of the subject matter for proper valuation of court filing fees payable and the court that has jurisdiction to hear the matter.

- c) The Applicant's, cannot in the instant case, claim not to have had an idea as to the exact value of the land yet they were armed with purchase agreements which they also attached to their plaint. - d) The requirement to disclose, a more correct value of the subject matter is also intended to guide the cashier to properly assess the court filing fees payable at institution of the suit by way of ordinary plaint. This omission, on the part of the Applicants' occasioned the Judiciary loss of revenue and as such this court finds no reason to accommodate them in as so far as ensuring that the taxation should be made on the current value of the suit land. - e) Lastly, I find that the taxation master properly guided himself when he followed the value of the agreements on the plaint. This is the same as following the value of the subject matter disclosed in the pleadings because annexures to the pleadings are part and partial to the pleadings. The rule upon which counsel for the Applicant is seeking to rely on permits the taxation master to consider among others, the value of the subject matter as disclosed in the pleadings.

Ground 4;

The Applicants did not demonstrate to the taxation master nor have they to this court that they instructed counsel separately. Where one Advocate represents all Applicants/Plaintiffs, there is a strong presumption that counsel was instructed by all jointly unless the contrary is proved.

I have considered the authority cited by the Applicant on the matter. This authority is not binding on me and I am disinclined to follow it. The taxation award of UGX. 16,240,000/= is sufficient in the circumstances of this case which proceeded ex parte and hardly spent two years on the record of the trial court.

Owing to the above reasons, I find no merit in the Application and it is hereby dismissed with costs to the Respondent.

I so order.

Orders;

1. The Application is hereby dismissed with costs to the Respondent.

Dated at Masaka and delivered electronically this 6th day of June, 2023



## **HON. LADY JUSTICE VICTORIA NAKINTU NKWANGA KATAMBA**