[1999] UGCA 40

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA

AT KAMPALA

CORAM:

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$\mathbf{I}$

HON. MR. JUSTICE S. T. MANYINDO, DCJ. HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, JA. HON. MR. JUSTICE A. TWINOMUJUNI, JA.

## CIVIL APPEAL NO. 29 OF 1998

#### PUNJAB MOTORS LTD. ::::::::::::::::::::::::::::::::: APPELLANT

### -VERSUS-

RESPONDENT <table>

SAM NJUBA ::::::::::::::::::::::::::::::: (An appeal from the judgment on appeal of<br>the High Court of Uganda at Kampala (Malinga, Ag. J.) dated 14th April 1998

in Misc. Appeal No. 1144 of 1997).

## JUDGMENT OF A. TWINOMUJUNI, J. A.

This is an appeal against the judgment of the High Court on appeal against the decision of the Taxing Master whereby he had $i$ . O taxed the respondent's costs at shs.11,700,000/=.

The brief facts are that the respondent, an advocate, $\mathbf{L}$ rendered some legal services to the appellant. The advocate demanded to be paid shs.1,872,000/=. Though the appellant appears to have accepted to pay this money, he consistently failed to pay it. The respondent then applied to the High Court by Notice of Motion that a bill (which was attached "to the Notice of Motion) for shs.11,700,000/ $\equiv$ be taxed. While that application was still pending, the appellant decided to pay by cheque shs.1,872,000/= which the respondent had earlier demanded. The respondent treated the cheque as part-payment. The Taxing Master eventually held

that the respondent was entitled to be paid in accordance with the Advocates [Remuneration and Taxation of Costs] Rules and approved the bill of shs.11,700,000/ $=$ . The appellant appealed against this order to a High Court judge. During that appeal, the appellant raised a matter he had not raised before namely that the respondent was not entitled to any costs at all as he had no practicing certificate at the time he rendered legal services to the appellant. This was a subject of ground one of appeal. He also put forward seven other grounds of appeal as follows:-

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- $i$ ) - ii) There was no proper and extracted order; - iii) There was no bill of costs lodged subsequent to obtaining and extracting an order; - iv) The Taxing Master erred in law when he held that the respondent was entitled to abandon his earlier bills; - The Taxing Master erred in law when he seemed to make $v)$ on the respondent's affidavit in support of an application for an order, but which had not been specifically made part of the taxation proceedings; - vi) The Taxation Master erred in Law and fact when he held that the payment made by the Applicant was partpayment;

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- vii) The Taxation Master was in error when he held that the item charged fall under the 5th Schedule; - viii) The Taxing Master erred in law when he allowed a claim for unpaid VAT.

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The learned judge found merit in grounds (ii) and (iii) but found no merit in the rest of the grounds of appeal, hence this second appeal.

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There are two grounds of appeal namely that:-

- The learned Ag. Judge erred in law and misdirected $1.$ himself when he held that the respondent had a valid Practicing Certificate at all times when he acted for the appellant and therefore entitled to costs. - The learned Ag. Judge on appeal erred in law and 2. 15 misdirected himself when he held that the respondent $\mathbf{I}$ had succeeded on grounds (iv) to (vii) in view of his findings on grounds (ii) and (iii) of appeal. - 20 On the first ground of appeal Mr. Babigumira, learned counsel for the appellant argued that the learned Ag. Judge misdirected himself when he held that the respondent had a valid Practicing Certificate at all times when he acted for the appellant and therefore was entitled to costs. He attacked this finding on two $25$ fronts; First, he argued that the Ag. Judge had in arriving at this finding relied on the affidavits sworn by the respondent which in counsel's opinion did not adduce evidence at all and that since the hearing before him was ex parte, the affidavit could not substitute for the appearance of the respondent to $\mathsf{O}$ defend the appeal. He therefore submitted that as there was no opposition to the appeal, the learned Ag. Judge should have accepted the affidavits of the appellant and his counsel's arguments and held that the respondent had received instructions and acted on them in January and February 1997 when he had no $\mathsf{S}$ Practicing Certificate and was therefore not entitled to costs.

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For this submission learned counsel relied on the case of: UDB vs- M/s Kasirye, Byaruhanga and Co. Advocates Civil Appeal No. $35/94$ (S. C.).

The second front of attack was that the learned Acting Judge failed to consider the fact that during March and April 1997 when the respondent did not have a Practicing Certificate anything he did by way of legal practice was not only illegal but also criminal. He therefore could not claim any costs for whatever he purported to do. Counsel cited the case of: Prof. Sayed Huq Civil Appeal No. $47/1995$ (S. C.).

In reply Mr. Kasule learned counsel for the respondent 15 stated that all the affidavits relied on by both parties before the Taxing Master and before the Ag. Judge were affidavits which adduced evidence and conformed to the requirements of 0.17 of the Civil Procedure Rules. He distinguished this case from that of: UDB -vs- M/s Kasirye, Byaruhanga & Co. Advocates (supra) where $20$ the affidavit in the case did not adduce any evidence. He found it strange that learned counsel could argue that the affidavit of the respondent should be rejected as being evidence and yet that of the appellant be relied on as evidence.

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On the case of Prof Sayed Hug Mr. Kasule submitted that the appellate Ag. Judge accepted that the respondent received instructions in December 1996 when he had a Practicing Certificate. He also accepted that the respondent completed the assignment in four days after receiving the Practicing Certificate for 1997. He held that the appellant failed to prove that the respondent could not have completed the assignment

during the period he had a Practicing Certificate. The period between March and April 1997 was not material because the respondent never claimed, nor did the appellant establish that the assignment was carried out before April 11th when he obtained the Practicing Certificate. Mr. Kasule submitted therefore that the HUO case was not applicable to the facts of this case.

I now consider the merits of this ground of appeal. It shall be recalled that when the respondent applied for his bill of 10 costs to be taxed, the application was accompanied by the respondents affidavit dated 12th June 1997 in which he deponed $\mathcal{L}$ in paragraph two that:-

> "At the request of Mr. Muhammad Punjab the Managing Director of Punjab Motors Limited, rendered various services to the. I respondent (now appellant) between 10th December 1996 and 14th April 1997 which services are particularly described in the hereto attached as arnexture." bill. (emphasis mine)

25 In his affidavit in reply the appellant did not challenge the $\mathbf{r}$ assertion by the respondent that he started acting for the appellant on 10th December 199 $\acute{b}$ . In fact the appellant claimed that he had only failed to pay the respondent because of a misunderstanding and stated in paragraph eight that:-30

> "I have never had any intention of not paying the applicant's bill and the delay being because of the conflicting bills and my sojourn out of the country for sometime."

> > $\mathsf{S}$

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The appellant raised the matter that he instructed the respondent in January and February 1997 only when preparing his appeal from the decision of the Taxing Master after learning that the respondent did not possess a Practicing Certificate during those months. Again, in his affidavit in reply to the appellant's affidavit supporting his appeal in the High Court, the respondent deponed that he acted on the instructions of his client (the appellant) only during the periods when he had a valid Practicing Certificate.

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When considering this issue the learned Ag. Judge held:-

"The appellant does not deny that Mr. Njuba had a Practicing Certificate during 1996. The question for determination is just when the instructions were given to Mr. Njuba or his firm of Advocates? The appellant says that the instructions were given in early 1997 but Mr. Njuba has deponed that he received instructions in December 1996. The appellant has the onus to prove that the instructions were given early 1997, but it has not discharged that burden on a balance of probabilities. I have therefore no option but to accept the version of the respondent that the instructions were given in December 1996."

It is of course true that in arriving at this conclusion, the learned judge relied on two affidavits of the respondent. The first affidavit complied with the requirements of Order 17 of the Civil Procedure Rules. It adduced evidence unlike an affidavit drawn up under S.3 of the Taxation of Costs (Appeals and

References) Rules S. I. - 258-6 which must contain "particulars of the matters in regard to which the taxed officer whose decision or order is the subject of appeal is allege to have erred."

This affidavit was not filed during the appeal in the High Court but as part of an application to the Taxing Master to tax the bill of costs. Therefore rule 3 of the Taxation of Costs Rules (supra) does not apply to it. This is however not to say $10$ that an affidavit filed under these rules becomes invalid when it adduces evidence. As long as it complies with the requirements of S.3, it is valid in any view. In fact the affidavit of the respondent in reply to the appeal to "the High Court on which the. judge also heavily relied is perfectly valid because S.3 of the 15 Taxation of Costs Rules refers to affidavits accompanying an appeal and not to an affidavit in reply. The affidavit in reply cannot be expected not to adduce evidence where the affidavit supporting the appeal goes beyond what is required in S.3 above and adduces evidence. I do not therefore accept the argument based on the UDB -vs- Kasirye Byaruhanga case (supra) that the affidavits which the learned judge took into account, did not adduce evidence. <u>Kasirye</u>, <u>Byaruhanga case</u> is totally inapplicable to those affidavits.

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I would say that since the respondent's first affidavit was already part of the record from the proceedings of the Taxing Master, it could not have been ignored by the Ag. Judge during the ex parte proceeding before him on appeal. I would equally hold that it was the duty of the appellant to prove that the

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respondent could not have carried out his assignment during December 1996 and between April 11th and 14th 1997 when he had a valid Practicing Certificate. I agree with the learned Aq. Judge's finding that the respondent did not discharge this burden on a balance of probabilities. The respondent never claimed that he acted for the appellant during March and up to 10th April 1997. The case of: Prof. Sayed HUQ is therefore not applicable here. Ground one of this appeal must therefore fail.

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The second ground of appeal is that the learned Ag. Judge erred in law and misdirected himself when he held that the respondent had succeeded on grounds (iv) to (vii) in view of his findings on grounds (ii) and (iii) of the appeal. My understanding of this ground is that learned counsel for the 15 appellant does not challenge the Ag. Judge's findings on grounds (ii) and (iii) of the appeal. His submission is that having held as he did on counts (ii) and (iii) the Ag. Judge should not have found for the respondent on grounds (iv) to (vii). This $20$ submission to me seems to be very strange because grounds of appeal (iv) to (vii) were not alternative grounds to grounds (ii) and (iii). It is the appellant himself who raised those grounds on appeal. I do not see exactly why the appellant finds it offensive that the Ag. Judge expressed his views and made findings on them. To compound the situation, learned counsel for 25 the appellant argues in the same written submission that,

> "With due respect it was superfluous for the learned trial judge to consider and make findings on grounds (iv) to (vii) or even (viii)." $\overline{11}$ In the first submission, the argument is that the Ag. Judge should not have found the respondents on grounds (iv) to (vii) of the appeal. I understand this to mean that if the learned Ag. Judge had-decided-those-grounds in favour of the appellant, then the appellant would not have complained. In the latter argument however, the Ag. Judge is attacked for having considered the grounds at all. These conflicting submissions have tended to obscure the exact meaning of the second ground in this appeal.

Nevertheless I will briefly examine first, what was the prayer of the appellant in grounds (ii) and (iii), secondly whether the learned Ag. Judge did pronounce in favoir of the appellant and thirdly whether the judge's decision disposed of the remaining grounds of appeal.

It is important to note that Mr. Babigumira for the appellant argued grounds (ii) and (iii) together before the Ag. Judge who also considered them together in his judgment. The 20 grounds were that:-

> $(i i)$ There was no proper and extracted order; and (iii) There was no bill of costs lodged subsequent to obtaining and extracting an order.

Mr. Babigumira says in the written submission in this court that:

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"As I did in the lower court, I submit that the Taxing Master had no Bill of Costs in law to tax and the Taxing Master's Certificate thereof was invalid. The <pre>learned Ag. trial Judge after considering grounds (ii)</pre> and (iii), he found merit in them."

When considering the two grounds of appeal, the learned Aq. Judge stated that:-

> "In this case the advocate sent a hill of costs to his client on 29th April 1997. On 12th June 1997 the advocate filed a Notice of Motion seeking the bill of costs to be taxed. This was done by the Taxing Master on 8th December 1997. The pellant argues that it still remains for the advocate to file a suit for recovery of the costs. (Emphasis mire). I do think that this applies to advocate/client bill of costs. Subsection (2) of S.59 (Advocates Act) provides:-

$"(2)$ The certificate of the taxing officer by whom any bill has been taxed shall, unless it is set aside or altered by the court, be final and to the amount of costs covered thereby, and the court may make such order in relation thereto as it thinks fit. including, in a case where retainer is not disputed, an order that judgment be entered to the sum certified to be done in the costs."

With respect to the learned Ag. Judge, although he held that there was merit in grounds (ii) and (iii) of the appeal, he never considered at all any issue relating to those grounds. He totally misunderstood what the prayer on those grounds was. He understood them to mean that the appellant was insisting that the respondent cannot recover the taxed costs unless he filed a suit for recovery. This can clearly be seen from the concluding paragraph of his judgment where he said:

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"The result is therefore that the appeal succeeds (sic) to the extent that the sum of shs.782,000/= allowed for VAT is set aside and it is ordered that the respondent cannot execute the Taxing Certificate unless he first files a suit for recovery of costs as determined by the Taxing Officer. (Emphasis mine)

Counsel for the appellant had argued in grounds (ii) and (iii) that there was no bill of costs before the taxing officer to tax and therefore a Taxing Master's Certificate was invalid. The learned Ag. Judge never considered or upheld that submission. On the contrary he appears to have only indirectly rejected it when 15 he held that the respondent should not execute the Taxing Certificate unless he first files a suit.

It follows therefore that he was correct in dealing with grounds (iv) to (vii) of the appeal on their respective merits. Ground two of this appeal therefore should fail.

There are however two matters which I should dispose of before leaving this appeal. $:5$

The first is that while submitting on grounds (ii) and (iii) in the lower court learned counsel also argued that $\textsf{S.56}$ and $\textsf{S.57}$ of the Advocates Act provided that for an advocate to recover costs against his client, he had first to apply to court by Notice of Motion so that an order is extracted. Armed with that order an advocate can then proceed to file an action to recover his costs as taxed by the Taxing Master. He concluded this argument by saying, "In short the Taxing Master's Certificate

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only empowers the advocate to file a suit. I would refer to Lukeera an Advocate Misc. Cause No. 76 of 1973." With respect to learned counsel for the appellant, this argument could not have been in support of grounds (ii) and (iii) which alleged that there was no proper bill of costs before the Taxing Master and therefore his Certificate was invalid. This is why the learned Ag. Judge was misled into dealing with an issue that was notraised by the Memorandum of Appeal. Even the Lukeera case (supra) which was cited had no relevance whatsoever to the issue learned counsel was arguing.

Be that as it may, I have considered whether there is any merit in the submission that the respondent failed to comply with the requirements of S.56 and 57 of the Advocates Act and any 15 rules made thereunder. Mr. Babigumira failed to convince me that those provisions required that there had to be a "proper and extracted order" and a "bill of costs lodged subsequent to obtaining an extracted order". On the contrary the facts are that when the appellant failed to pay his advocate, the advocate drew 20 up a bill of costs and sent it to the appellant. When the $\left( \begin{array}{c} \cdot \\ \cdot \end{array} \right)$ appellant failed to take any action the advocate applied that the bill be taxed. The bill was subsequently taxed in presence of the appellant.

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In my judgment the respondent substantially complied with the requirements of the Advocates Act.

The second matter arises from the decision of the learned Ag. Judge that because of the provisions of $S.59$ of the Advocates Act (supra),

"It would therefore be necessary for the obtaining taxing $\mathbf{a}$ after advocate Certificate to file a suit for recovery of the costs from his client."

S.49 of the Act provides that the Certificate of the Taxing Master, unless altered by court, shall be final and the court

> "may make such order in relation thereto as it thinks fit, including, in a case where retainer is not disputed, and order that judgment be entered for the sum certified to be done in the costs." (Emphasis mine)

In the instant case retainer has never been disputed and it is not necessary to file a suit before the respondent can recover. The holding of the learned Ag. Judge was with respect therefore 20 not correct.

In the result, I would hold that there is no merit in this appeal which I would dismiss with costs. Since the appellant's 25 appeal in the High Court should have been dismissed with costs, $\mathscr{J}$ $\left( \begin{array}{c} 1 \\ 1 \end{array} \right)$ weald set paids the order for cash made by the High terril and<br>I would award to the respondent the costs of that appeal too.

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Dated at Kampala this $\frac{1}{\sqrt{2}}$ day of February, 1999. 30 $ll$ cc $l$ d HON. JUS FICE AMOS NOMUJUNI 35 PICE OF APPEAL

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### THE REPUBLIC OF UGANDA

$\mathbf{11}$

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM:

HON. MR. JUSTICE S. T. MANYINDO, DCJ. HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, J. A. HON. MR. JUSTICE A. TWINOMUJUNI, J. A.

### CIVIL APPEAL NO.29 OF 1998

........ APPELLANT PUNJANI MOTORS LTD. .......

**VERSUS**

$\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cd$ SAM NJUBA ..........

> (An Appeal from the judgment on appeal<br>of the High Court of Uganda at Kampala (Malinga, Ag. J.) dated $14/04/1998$ in Misc. Appeal No.1144 of 1997).

### JUDGMENT OF A. E. MPAGI-BAHIGEINE, J. A.

I agree with the judgment of Twinomujuni, J. A., and I do not think I need add anything.

.16.th .day of February, 1999. Dated at Kampala this ..

Bahigeine $\sim$ Mpagi JUSTICE OF APPEAL

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# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CORAM: HON. MR. JUSTICE S. T. MANYINDO, DCJ. HON. LADY JUSTICE A. E. MPAGI-BAHIGEINE, JA. HON. MR. JUSTICE A. TWINOMUJUNI, JA.

### CIVIL APPEAL NO. 29 OF 1998

<table>

PUNJANI MOTORS LTD.................................... **VERSUS** ........................... RESPONDENT SAM NJUBA...

> (An Appeal from the judgment on appeal of the High Court of Uganda at Kampala (Malinga, Ag. J.) dated 14^th April 1998 in Misc. Appeal No. 1144 of 1997).

#### JUDGMENT OF MANYINDO, DCJ

I agree with the judgment of Twinomujuni, JA, just delivered and as Mpagi-Bahigeine, JA, also agrees, this appeal is dismissed with costs to the respondent, here and in the High Court.

DATED at Kampala this ... *l. G.*. day of February, 1999.

Ceymo

S. T. MANYINDO DEPUTY CHIEF JUSTICE