[1996] UGHC 67


# THE REPUBLIC OF UGANDA

. A'

# IN THE HIGH COURT OF UGANDA AT KAMPALA

# MISCELLANEOUS CAUSE NO. 183 OF 1996.

*(Arising from original Miscellaneous Cause No. 171/1995)*

UGANDA BANKERS (EMPLOYERS) ; ; ; *;;;;*APPELLANT/APPLICANT

versus

RESPONDENTS. NATIONAL UNION OF CLERICAL COMMERCIAL, PROFESSIONAL AND ;;; TECHNICAL EMPLOYEES

BEFORE: The Honourable Mr. Justice A. O. Ouma 10

### JUDGMENT

This is an appeal by way of Chamber Summons taken under section 61 (1) of the Advocates Act and under Rule 3 of the Taxation of Costs (Appeals and References) Rules, on the ground,

- (a) officer applied wrong That the taxing principles. - (b) That the taxing officer erred in law when he relied on and applied the Advocates (Remuneration and Taxation of costs) (Amendment), Rules, 1996. - (c) That the taxing officer erred in law in not applying the sixth schedule to the Advocates (Remuneration and Taxation of costs) Rules, 1982. - (d) That the taxing officer failed to exercise his discretion judicially when he awarded costs that were excessive.

The appeal is supported by an affidavit dated 26.3.1996, deponed to by Dr. Byamugisha, counsel for the appellant and the second affidavit dated 2.4.1996, deponed to by Emmanuel Kikoni. An 3C affidavit in reply dated 19.4.1996 and an additional affidavit dated 23.4.1996 both deponed to by Mr. Augustine Semakula,

**III**

(

counsel for the respondents, were filed on the court record, in support of cross appeal against taxation and disallowance of item ² of the bill of costs and against disallowance of commercial transaction levy claimed. The bill of exhibited as an exhibit "A" to the counsel's affidavit in support of the appeal. costs was

By way, apparently of background to this appeal, counsel for the appellant proceeded to tell court that on item 1, to wit, instructions to defend case involving intricate points of law and where, value of the subject matter was shs. ⁸ billion, the taxing 10 (two hundred million) and allowed shs. 40,000,000/= (forty million); and that on the taxing date, it was agreed by counsel and the taxing officer that it was as if the bill of costs had been filed in court on 5.12.1995, in which case the Advocates (Remuneration and Taxation of Costs) Rules, wherefore, taxation proceeded on the basis of the court record. officer taxed off Shs. 200,000,000/= 1982, were applicable to the bill of costs,

According to the record, Miscellaneous Cause No. 171 of 1995 was filed by Chamber Summons ex parte under section 34 of the Judicature Act for orders of Certiorari and Prohibition. Leave 20 for the orders was granted, whereupon, a notice of motion dated 9.5.1995 was filed for the orders of certiorari and Prohibition to issue to quash and prohibit the award of the Industrial court dated 18.4.1995, in Industrial Cause No. ² of 1993 . The Court heard the notice of motion and dismissed it.

The Court did not go into the merit of the award for the reason that the Trade Disputes (Arbitration and Settlement) Act does not apply, inter alia, to any award made by the industrial court (see Miscellaneous Cause No. 99 of 1972 and Amalgamated Transport and General Workers Union vs. Uganda Transport Company Limited [1972] 2 ULR 171 at 172).

The applicant seeks orders; -

- 1. That the items objected to against the taxation of His Worship Onega, the taxing officer, on 21st March, 1996, in the affidavit of Joseph Byambara Byamugisha with re-taxed $in$ accordance the Advocates he (Remuneration and Taxation of Costs) Rules, 1982. - That the costs of this appeal be provided for. $2.$

There are four grounds of appeal; -

- That the taxing officer applied wrong principles. $(a)$ - $(b)$ That the taxing officer erred in law when he relied on and applied the Advocates (Remuneration and Taxation of Costs) (Amendment) Rules, 1996. - That the taxing officer erred in law in not applying $(c)$ the sixth schedule of the Advocates (Remuneration and Taxing of Costs) Rules, 1982, and - That the taxing officer failed to exercise $(b)$ his discretion judicially when he awarded costs that were excessive.

With regard to ground (a) in reply, Dr. Byamugisha learned counsel for the appellant said that he argued the grounds of the appeal fully with references to the cases he cited with rules to every item in the bill of costs, adding that if a matter is stated that it shall, then there is no discretion by the taxing officer and that if the rules are mandatory and give no room to the taxing officer to exercise his discretion. He submitted that of he fails to do so then he has failed to exercise his

discretion judicially.

Mr Ssemakula learned counsel for the respondent had earlier in his response to the submission by counsel for the appellant argued that the Chamber Summons did not state the wrong principles the taxing officer had applied. They were not stated in the affidavit in support of the chambers summons. Nor did the counsel for the appellant state the wrong Principle applied by the taxing officer. Counsel submitted that failure to state them rendered the appeal useless.

Counsel proceeded to cite the case of Makula International Ltd. vs. Cardinal Nsubuga and Another [1982] H. C. B 11 (see also P. Rachand ltd. and Another Vs. Quarry Services of East Africa Ltd. and others (No. 3) [1973] E. A 162 where the principles were set out as follows; -

- that costs should not be allowed to rise to such level $(a)$ as to confine access to courts to the wealthy. - litigant ought to be fairly ${\tt successful}$ $(b)$ that $\mathbf{a}$ reimbursed for the costs he had to incur in the case; - that the general level of remuneration of Advocates $(c)$ must be such as to attract recruits to the profession, and - that so far as practicable there should be consistency $(d)$ in the awards made."

I do not fully understand by what was intended by the word "principles" in the context of ground (a) of this appeal. Was it intended to mean rules used as a guide in taxation of costs analogous to the principles set out in the case of Makula International Ltd. vs. Cardinal Nsubuga and Another (supra) and 20

in other authorities*,* but which the taxing officer wrongly applied?

Learned counsel argued that he argued the grounds of appeal, to wit, with references to the cases he cited, rules and to every item in the bill of costs. ^I have carefully perused and considered the two cases cited namely, Amalgamated Transport and General Workers union vs. Uganda Transport Company (supra). I have found thing in both cases with regard to principles which the taxing officer wrongly applied in this present appeal. 10 and Kabaka Vs. Muwanqa (a) to (d) fully, Limited (supra)

have however, found in the submission by the learned counsel for the appellant are the complaints that the taxing officer allowed items in the bill of costs except items 2 and 16 thereof, not in accordance with the rules, and excessively, more particularly the sum of shs. 40,052,500/=. In my view, this can only be if any non- compliance with the rules and not wrongful application of principles by the taxing officer, as is stated in ground (a) of this appeal. What ^I

In the premises, ^I agree with the argument by learned counsel for the respondent that the principles stated in ground (a) were not 20 stated in the chamber summons, not in the affidavit in support of this appeal and not by the counsel for the appellant in his . submission. For this reason, this ground of appeal fails, as it is not possible to decide that the taxing officer applied wrong principles or not without knowing the principles, he failed to

apply.

^I will consider grounds (b) and (c) together Collateral to these grounds are paragraphs 3 and 5 of the affidavit in support of this appeal. They are:-

"3. That at the hearing of the taxation on 13.3.1996, ^I objected to all the items of costs as not complying with the Advocates (Remuneration and Taxation of costs) 1982, Rules with the exception of items 2 and 16 of the respondent's bill of costs.

⁴ 10

5. That this affidavit is sworn in support of an appeal against the taxation and allowance of the items, 1,3 to 15 and 17 of the respondents' said bill of costs."

Counsel for the appellant told court that on the taxation date it was agreed by counsel, ^I would take it that by both counsels and the taxing officer that as it was as if the bill of costs had been filled on 5.12.1995, accordingly the Advocates (Remuneration and Taxation of Costs) Rules, 1982, applied to the bill of costs in this present case. It would seem to me that that agreement was not recorded in the taxation proceedings. ^I have not been 20 able to find it in the taxation proceedings and, as we shall shortly see, counsel for the respondent made a contrary submission.

Counsel for the appellant proceeded to argue that rule 34 of the Advocates (Remuneration and Taxation of Costs) Rules 1982 applied to contentious matters while rule 35 therefore, provides that a bill of costs incurred in the High Court shall subject to any order pronounced by court in regard to any particular case be taxable according to the rates prescribed in the sixth schedule

to these Rules that it so say, the 1982 Rules. Counsel then submitted that in this present case, the application of the sixth schedule to the 1982, Rules was mandatory, however, adding that this present case was neither a suit nor an appeal since there was no amount claimed and no amount appears in the judgment of the court and that the value of the subject matter could not be relied on.

Counsel for the respondent on the other hand argued that the Advocates (Remuneration and Taxation of Costs) (Amendment) Rules 1996, commenced on 2.2.1996 and submitted that as the Advocates (Remuneration and Taxation of Costs) Rules 1982, were amended by the Advocates (Remuneration and Taxation of Costs) (Amendment) Rules, 1996, it would have been wrong if the taxing officer would have applied the 1982 Rules, on 5.3.1996. I would observe that according to the taxation proceedings before the taxation officer in this present case, it would appear that the taxation was held on 18.3.1996 and not on 5.3.1996 as was stated by counsel for the respondent and as it was avered by counsel for the appellant in paragraph 3 of his affidavit in support of this appeal. May be the date as appears in the taxation proceedings is wrong or inaccurate.

Be that as it may, rule 1 of the Advocates (Remuneration and Taxation of Costs) (Amendment) Rules, 1996, provides,

These Rules may be cited as the Advocate (Remuneration $"1.$ and Taxation of Costs) (Amendment)Rules, 1996 and shall be read as one with the Advocates (Remuneration and Taxation of Costs) Rules, 1982 (in these Rules

referred to as the principal Rules)".

Rule 3 Provides;

"3. The Schedules to the Principal Rules are replaced as is provided under the Schedules to these Rules."

. Section 17 (1) of the Interpretation Decree provides,

- "17 . (1) Subject to the provisions of this section, - the the 1C (a) the commencement of a statutory instrument shall be such date as is provided in or under instrument or where no date is so provided the date of its publication as notified in Gazette. - (b) every statutory instrument shall be deemed to come into force immediately on the expiration of the day next preceding its commencement."

According to the counsel for the respondent in his submission, he told court that the 1996 amended Rules commenced on 2.2.1996. In the absence of ^I hold that the Rules commenced on 2.2.1996, in which case ^I would agree with the submission by counsel for the respondent to the effect that as the schedules to the Advocates (Remuneration and Taxation of 20 Costs) Rules, 1982, were amended, more materially by being replaced by the provisions provided under the schedules to the Advocates (Remuneration and Taxation of Costs) (Amendment) Rules, 1996, the taxing officer would have erred or misdirected himself, if he had applied the scale of costs or fees as prescribed in the 1982, Rules, on 18.3.1996, after the 1996 amended Rules had come into force, even though the bill of apparently on 5.12.1995, before the 1982 Rules were amended, more the sixth schedule to the 1996 amended Rules. 30 any evidence to refute it, relevantly, the sixth schedule, thereto, which was replaced by costs was filed in court

By Rule ¹ of the 1996 Rules, the 1982 Rules as amended and the 1996 Rules are read as one, with effect from the date the 1996 Rules came into force. In view of this legal position. ^I would think that it was legally not attainable for the taxing officer to apply the 1982 Rules to the bill of costs in this present case after the 1996 Rules had come into force, as it was argued by counsel for the appellant, that 1982, Rules were the only It would have entailed to separate the two sets of Rules which are read as one. . This leads me to consideration of the collateral ground of this appeal as avered in paragraphs 3, and 5 of the affidavit in support of this appeal. By paragraph ³ the deponent counsel for the 1C appellant objected to all the items in the bill of costs for the reason that they did not comply with the Advocates (Remuneration and Taxation of Costs), Rules 1982, with the exception of items By paragraph 4, despite the objections the taxing officer proceeded and taxed and allowed the bill of costs contrary to the said rules and at the excessive By paragraph 5 the items complained of as having been taxed and allowed contrary to the rules were items 1,3 to 15 (inclusive) and item 17 of the bill of costs. applicable Rules to this present case. sum of shs. 40,052,500/=. 2 and 16 of the bill of costs.

I

^I have carefully perused the rates of costs as were prescribed 2C in the sixth schedule to the Advocates (Remuneration and Taxation of Costs) Rules, 1982. ^I have also perused carefully the rates of costs provided in the sixth schedule to the Advocates (Remuneration and Taxation of Costs) (Amendment) Rules 1996, which replaced the sixth schedule to the 1982, Rules, upon which the learned counsel for the appellant relied. ^I have compared the rates as were prescribed in the replaced sixth schedule to

the 1982, Rules and the rates as prescribed in the sixth schedule to the Advocates. (Remuneration and Taxation of Costs) (Amendment) Rules 1996. I find that the rates prescribed in the 1996 Rules are higher. I have also compared the claimed rates as per the bill of costs in regard to the items 3 to 15 inclusive and 17 of the bill of costs and the prescribed rates in the schedule to the 1996 Rules, which the taxing officer applied. I agree with the finding of the taxing officer (see Ruling dated 21.3.1996 at page 3) that the scale of costs or rates as claimed in the bill of costs in regard to items 3 and 15 inclusive and to item 17 conformed with the scale of costs or rates or fees prescribed in the sixth schedule to the Advocates (Remuneration and Taxation of Costs) (Amendment) Rules, 1996 which the taxing officer correctly applied in my view, in the absence of any provision of law to the contrary, given the fact that the Advocates (Remuneration and Taxation of Costs) Rules 1982, were amended by replacing the schedules thereto by the provisions as is provided under the schedule to the 1996 Rules, which two sets of Rules are read as one.

In the result, I find that the taxing officer properly in my view, applied the sixth schedule or for that matter the Advocates (Remuneration and Taxation of Costs) (Amendment) Rules, 1996, which amended and replaced the schedule to the Advocates (Remuneration and Taxation of Costs) Rules, 1982, by the provisions as is provided under the 1996 Rules.

I revert to item 1 of the bill of costs, to wit, instructions to


defend case involving intricate points of law and where value of the subject matter, is shs. 8 billion. On objection by counsel for the appellant before the taxing officer, the value of the subject matter, that is to say, shs. 8 million and newspaper cutting annexed to an affidavit were struck out. Under item 1, the taxing officer taxed off shs. 200,000,000/= and allowed shs. $40,000,000/=$ .

Rule 35 of the Advocates (Remuneration and Taxation of Costs) Rules as amended by the 1996 Rules provides,

> $\mathbf{H}^{\prime}$ A bill of costs incurred in contentious 35. proceedings in the High Court and in the Magistrates' courts shall, subject to any order pronounced by the<br>court in regard to any particular case, be taxable according to the rates prescribed in the sixth schedule to these Rules."

Counsel for the appellant submitted that the application of the sixth schedule to the 1982, Rules in this case was mandatory. I have found that the sixth schedule to the 1982 Rules was inapplicable. I have no reasons to belabour this point.

Counsel for the appellant considered that counsel for the respondent sought to apply item 1 (a) (iv) in the sixth schedule to the 1982 Rules that this matter was not a suit. It was not There was no amount claimed. Nor was there amount an appeal. in the judgment of the court. Accordingly the value of the subject matter could not be relied on. Counsel argued that this matter was an application under item 1 (a) (vii) (b), which provides that where the application is not opposed the scale of costs or rates is not less than shs. 150,000/=, subject to a

certificate by the trial judge allowing a higher fee, which was not done in this present case, wherefore, counsel submitted that it was wrong for the counsel for the respondent to have influenced under item ¹ that there were intricate points of law without a certificate of the presiding interlocutory order dismissing the application and which order did not substance of the Industrial court award. Counsel further argued that the taxing officer was wrong to refer to the industrial court award, 10 when there was only an order of the trial judge dismissing the application. He was also wrong to refer to item 1 (a) (viii) which refers to an arbitrator's report. ^I see no injustice in the reference, in view of the fact that the scale (a) (iv) and (v) were adopted in item (a) (viii). judge, when the judge only made an the merits or go to of costs or fees specified in item 1 the taxing officer

Counsel for the respondent, on the other hand argued that under item 1 the subject matter was shs. ⁸ billion, and submitted that the taxing officer was wrong to struck out the newspaper cutting to show that the subject matter was shs. 8 billion. In my view, the taxing officer acted properly in striking out the newspaper 20 cutting to prove the subject matter. Such evidence cannot be acted on unless there is other evidence to confirm or support it, for fear that newspaper reporting may not be accurate.

In assessment of quantum of costs, matter of principle matters which a court considers are prolixity of the terms of its preparation to wit, the amount of involved case in as a

preparation for hearing; the difficulty and importance of the case and any peculiar complication in its presentation in court, and to a variable extent, the amount of the subject matter, though this may not always be the case.

It seems to me, in this present appeal, it is clear that the taxing officer did not set out in his ruling a statement which shows evidence that he applied wrong principle. Therefore, the real complaint by the counsel for the appellant seems to me to be the actual sum allowed in taxation, particularly on item 1 and not that the taxing officer proceeded upon wrong principles or for that matter the method by which the sum allowed was assessed.

$1C$

In this regard, I would refer to the case of, In the Estate of Orgilvie, Orgilvie vs. Massey [1910] 103 LT 154, where it was held.

> "On questions of quantum the decision of the taxing officer is generally speaking final. It must be a very exceptional case in which the court would even listen to an application to review his decision."

In Pardhan vs. Osman [1969] E. A. 528, On the respondent's bill of costs the taxing officer taxed shs. 4,000/= off the claimed instruction fee of shs. 7,500/=. He did not disallow the costs of drawing and filing the bill, nor did he record any reasons for not doing so. It was held that that case was not the exceptional case in which the quantum awarded by the taxing officer should be interfered with and that he did not have to give his reasons for exercising his discretion not to tax off the costs of drawing and filing the bill.

However, in a latter case, to wit, Premch and Raichand Ltd. and Another vs. Quarry Services of East African Ltd. and others (No. 3 [1972] E. A 162, the Court of Appeal for Eastern Africa, held, inter alia, that the court will only interfere when the award of the taxing officer is so high or so low as to amount to an injustice to one party.

As I have already stated above, perhaps, for emphasis, I would say that instruction fee is based on the amount of work involved in preparation for the hearing, complication of the case, the importance of the case and to some degree the amount involved. The counsel for a respondent, if he is not to be taken by surprise, must, in my view, make just as thorough a study of the case and relevant authorities as the counsel for the appellant even though the hearing may not proceed or the case may be dismissed on a preliminary point of law or procedure. That would not affect the amount of work counsel on either side would have put in his preparation for the hearing. From my perusal of the affidavits in support of this matter and in reply and from the arguments by both counsel, I conclude that both sides admit that the application for order of certiorari and order of prohibition was substantive. Indeed it had to be so, because the orders are substantial and forbidding. It follows that both counsel had to work hard in preparation for the hearing, despite the fact that the application was dismissed. I also bear in mind that the application was of public importance in that it concerned industrial relation between leading Banks and their unionised employees who must be many, and whom, I would suppose counsel for

$1C$

of causing industrial strikes industrial relations in sympathy or solidarity. the respondent was representing, and which had the possibility or effect in other

by counsel and the authorities ^I have referred,above, ^I find that the taxing officer exercised his discretion judicially and ^I would have no reason to interfere with his decision. ^I further find that the taxing officer acted properly in disallowing item 2 of the bill of costs, since it is included in item 1 where the instruction fee of shs. appeal therefore fails. In these circumstances, relying on the authorities cited to me 40Q00,000/= was awarded. The cross

Consequently this appeal fails with costs to the respondent.

*^o'una* JUDGE 22.08.1996

22.8.1996

Court: Judgment read and signed in open chambers in the presence of Dr. Byamugisha, for the applicant and of Mr. Ssemakula for the respondents/plaintiffs and of Mr. Kamyuka, Court Clerk.

JUDGE 22/8/1996


## IN THE HIGH COURT OF UGANDA AT KAMPALA

## MISCELLANEOUS CAUSE NO. 183 OF 1996

(From original Miscellaneous cause No. 171 of 1995)

UGANDA BANKERS' (EMPLOYERS) ASSOCIATION ...... APPELLANT

$versus -$

NATIONAL UNION OF CLERICAL COMMERCIAL PROFESSIONAL AND TECHNICAL EMPLOYEES ........ RESPONDENT

## DECREE

This appeal coming for final disposal this 22nd day of August, 1996 before the Honourable Mr. Justice A. O. Ouma and after hearing Dr. Byamugisha for the appellant<br>and Mr. Ssemakula for the respondent it is ordered and<br>decreed that the appeal be and is hereby dismissed with costs to the respondent.

GIVEN under my hand and the Seal of this Court this , 1996. day of **REGISTRAR**

I APPROVE COUNSEL FOR THE RESPONDENT DRAWN & FILED $bv$ : BYAMUGISHA & RWAHERU ADVOCATES, $P. O. BOX 9400$

KANPALA:

$\mathcal{L} = \mathcal{L}$

$\frac{1}{2}$ $0.1917120$