[1998] UGCA 53

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL AT KAMPALA

# CIVIL APPEAL NO. 5I OF ¹⁹⁹⁶

## CORAM: THE HON. S. T. MANYINDO, DCJ.. THE HON. J. P. BERKO. .t. A. & THE HON. S. G. ENGWAI. I.. I. A.

### UGANDA BANKERS (EMPLOYERS ASSOCIATION) APPELLANT

#### VERSI]S

### NATIONAL UNION OF CLER]CAL COMM ERCIAL PROFESSIONALS & TECI. INICAL EMPLOYEES

{

o

RESPONDENT

(Arising from the Ruling and Order of High Courl ai Kampala dated 22'd August 1996 in Misc Appeal No, 183/96.)

# . ITIDGMENT OF HON. ruSTICE J. P. BERKO, J. A.

This is an appeal againstthe Ruling and Orders of Ouma J. (as he then was)made on22"d August, 1996 in Misc. Appeal No. 183 of 1996 arising from the ruling and Orders of the Taxing officer, in a Taxation proceedings.

The case arose in the following circumstances. The National Union of Clerical, Commercial, Professional and Technical Employees (the Respondents) brought an action against the Uganda Bankers (Employers) Association (The appellants) in the Industrial Court. That was Industrial Cause No. 2 of 1993. The Industrial Court made an award in favour of the Respondents. The appellants filed an exparte Chamber Summons under S. 34 of The Judicature Act for leave to file an application for prerogative urits of certiorari and prohibition to quash the award made by the Industrial Court. After the grant of the leave an application by way of Notice of Motion for writ of certiorari and prohibition was filed on the 9th May 1995. The application was heard by Egonda - Ntende, J. who dismissed it and awarded costs to the appellants.

The appellants then filed their Bill of Costs in the High Court. The Bill of Costs contained an item of Shs. $240,000,000/=$ as instruction fees. The Bill of Costs also contained another Item 2 of Shs. $50,000/$ = as Costs for "studying pleadings, research, and study of Labour Law." The Taxing Officer taxed off the Shs.200,000,000/= and allowed Shs. 40.000,000/= as instruction fees. He taxed off the whole of Item 2. The appellants thought that the instruction fees was on the higher side and so appealed to a Judge of the High Court for reassessment. Ouma J. who heard the appeal upheld the assessment made by the Taxing Officer and dismissed the Appeal. Hence the appeal.

There are six grounds of appeal:

- 1. The learned Judge erred in law in holding that ground (a) of appeal fails for reasons that: - (1) "principles stated in ground (a) were not stated in the Chamber Summons, not in the affidavit in support of this appeal and not by Counsel for the appellant in his submission" and, - (11) because it was "not possible to decide that the taxing officer applied wrong principles or not without knowing the principles, he failed to apply". - 2. The learned Judge erred in law in holding that the Taxing officer did not apply wrong principles. - 3. The learned Judge erred in law when he held that The **Advocates (Remuneration and Taxation of Costs)** (Amendment) Rules, 1996 applied to the Taxation; - 4. The learned Judge erred in holding that the Sixth' Schedule to the 1982 Rules was inapplicable. - 5. The learned Judge erred in law in holding that "instruction fees is based on 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." - 6. The learned Judge erred in law in not holding that the instruction fees as allowed by the taxing officer at **Shs.40,000,000/= were excessive."**

To appreciate the grounds of the appeal and the arguments of counsel, perhaps, it would be appropriate to set out in full the

grounds contained in the chamber summons taken out under Section $61(1)$ of the Advocates Act and Rule 3 of the Taxation of Costs(Appeals and Reference Rules. The grounds were:-

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

The Chamber Summons was supported by two affidavits. The first one was sworn to by Counsel for the appellant. The relevant paragraphs are:

- "(2) That on the 21^st day of March, 1996 His Worship Onega taxed respondents bill of costs and allowed it at Shs. $40,052,500/=$ . - (3) That at the hearing of the taxation on the 13^th March, 1996 I objected to all the terms as not complying The Advocates (Remuneration and Taxation with of Costs) Rules 1982, with the exception of items 2 and 16 of the respondents bill of costs. - (4) That inspite of any objections the taxing officer proceeded and taxed and allowed the bill of costs contrary to the said rules and at excessive sum of Shs. $40,052,500/="$

The only point relevant in the second affidavit deponed by Ammanuel Kikoyi is that the costs of Shs. $40,052,500/$ = which were awarded by the taxing officer were excessive and punitive.

The first and second grounds of appeal were argued together under a broad proposition that the learned Judge on appeal erred in law in dismissing the appeal on the ground that the principles the taxing officer was alleged to have wrongly applied were not stated in the chamber Summons and in the affidavits in support of the appeal and were not even alluded to by learned Counsel when arguing the appeal and therefore it was not possible for the judge to

decide that the taxing officer applied wrong principles when those principles were not known.

Dr. Byamugisha's complaint was that his submissions before learned Judge were based upon the relevant rules applicable to In particular he referred to the Advocates taxation of costs. (Remuneration & Taxation of costs) Rules, 1982, No. 123 part 3 rule 34 and 35, which I shall hereafter, for brevity call the Remuneration Rules).

There is no dispute that the matter in issue was a contentious matter. Contentious matters are provided for under Part 111 of the Remuneration Rules. The first two rules in that part provide as follows:

> "34 This part of these Rules shall apply to contentious matters and the taxation of costs as between advocate and client and between party and party in contentious proceedings.

35 A bill of costs incurred in contentious proceedings in The High Court and in the Magistrate's courts shall, subject to any order pronounced by the court in regard to any particular case, be taxable according to the rates prescribed in the Sixth Schedule to these **Rules**".

According to Dr. Byamugisha, as the matter in dispute was contentious, the remuneration for the work done in respect of them had to be charged in accordance with the scales prescribed in the Sixth Schedule.

The matter in dispute was a chamber Summons for the issuance of the writs of certiorari and prohibition. Accordingly the applicable rule is (VII) of the Sixth Schedule which provides:

for applications, notices of motion, or Chamber $"(VII)$ applications:

## (a) where the application is unopposed not less than $Shs.1,000$

(b) where the application is opposed not less than Shs. 1,500."

Dr. Byamugisha contended that in assessing the instructions fee, the taxing officer had ignored the above provisions of the Sixth Schedule to the Remuneration Rules and that on appeal the learned Judge had ignored the irregularity. He maintained that the exercise of the discretion rested in the taxing officer by the Remuneration rules he must be guided by the basic fee prescribed under the Sixth Schedule. He also alluded to the proviso to the Sixth Schedule which provides:

"(1) Where, due to the complexity of a case, a higher fee is considered appropriate, the advocate for either party may apply to the presiding Judge or Magistrate, as the case may be, for a certificate allowing him to claim a higher fee; the Judge or Magistrate shall then specify the fraction or percentage by which the instruction fee should be increased."

In this case no such certificate was obtained. It was therefore contended by Dr. Byamugisha that the taxing officer was wrong in moving from the low figure of Shs. 1500 to Shs. 40,000,000/ $=$ . That was said to be a misapplication of his discretion, more so, when the trial Judge had not given a certificate of complexity in the case. The learned Judge was therefore wrong in holding that the Taxing Officer did not apply wrong principles when those principles he was said to have wrongly applied were not indicated.

I think there is substance in the two grounds. The Remuneration rules and the mode of assessing the instruction fee as elaborated in the case of Makula International Ltd v His Eminence Cardinal Nsubuga & Anor. (1982) H. C. B. 11. were brought to the attention of the learned Judge. He referred to those Rules and principles in greater detail in his judgement. These were matters of law which the learned Judge was presumed to know. He therefore failed to exercise his judicial function when he held that "it was not possible to decide that the Taxing officer applied wrong principles when those principles were not indicated". In fact it was conceded by learned counsel for the respondent that the learned Judge misdirected himself when he held as he did. The two grounds therefore succeed.

Grounds 3 and 4 were argued together under a proposition that the learned Judge erred in largely upholding the Taxing officers view that The Advocates (Remuneration and Taxation of Costs (Amendment) Rules, 1996 applied to the taxation and also in holding that the Sixth

$\mathsf{S}$

Schedule to the 1982 rules were not applicable. The argument of Dr. Byamugisha was that the chamber Summons was dismissed with costs on the $17/8/95$ . The bill of costs was drawn on the $17/11/95$ and filed on the 5/12/95. This was before The Advocates (Remuneration & Taxation of Costs (Amendment) Rules, 1996 and the amendment to the Sixth Schedule was published on the $2/2/96$ . According to Counsel the costs were incurred on the $17/8/95$ when the trial Judge dismissed the chamber summons with costs. Taxation was only a process of computing how much had been awarded. It was the contention of Dr. Byamugisha that the scales that should have been used should have been those under the 1982 Rules and the Sixth Schedule to those Rules and not the amended Schedules. Reliance was placed on S.13 (2) of the Interpretation Decree, 1976, Decree 18. If the Taxing officer had used the 1982 Sixth Schedule. the instruction fee for the chamber application would have been a minimum of Shs. 1500. The Taxing officer had discretion to increase that figure. The Taxing officer used the scale under (1) in the Sixth Schedule to the Remuneration rules of 1996 and used the fee of not less than Shs. 75,000/=.

Learned Counsel for the respondent does not dispute the fact that the chamber application was dismissed on $17/8/95$ with costs and that the bill of costs was filed on $5/12/95$ . In fact the Bill of costs was filed under the 1982 Remuneration Rules. The taxation was done on the 31/3/96. when the amended Rules had come into effect. According to Counsel costs are completed when they are taxed. In his view Section $13(2)(b)$ of the Interpretation Decree was not applicable as the sub-section protects a right that was completed before the repeal. Here the taxation was completed on the 31/3/96 when the amended Schedule was already in force. It was his submission that the amended Schedule was applicable and consequently both the Taxing officer and the learned Judge were right when they applied the amended Schedule.

S. $13(2)$ of the Interpretation Decree, 1976 (Decree 18) contains the following provision:-

# "13(2) where any Act or Decree repeals any other Instrument then unless the contrary intention appears, the repeal shall not,

- (a) revive anything not in force or existing at the time at which the repeal, or - (b) affect the previous operation of any enactment so repealed or anything duly done or suffered under any enactment so repealed; or

- (c) affect any right, privilege, obligation or liability acquired, accrued under any enactment so repealed; or - (d) affect any penalty, forfeiture, or punishment incurred in respect of any offence committed against any enactment so repealed; or - (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or **Decree had not been passed".**

The effect of subsection $2(c)$ of the Decree is to protect and preserve "any right,...obligation or liability acquired, accrued or incurred under an enactment" that has been repealed by another enactment. To determine whether or not the subsection is applicable in the matter before us, it is necessary to find out when liability to pay cost arises or accrues.

In my view liability to pay costs accrues when the court makes an order for costs to be paid. The process of Taxation is only to determine the quantum of the cost to be paid. Since the order for costs in the instant case was made by the learned trial Judge on $17/8/95$ , the taxation ought to have been based on the 1982 Remuneration Rules and the Sixth Schedule to those rules.

The learned Judge therefore erred in law when he held that Advocates (Remuneration and Taxation of $Costs$ ) the (Amendment) Rules 1996 applied to the taxation. He also erred in law when he held that the Sixth Schedule to the 1982 Remuneration rules was not applicable. As a result grounds 3 and 4 succeed.

Grounds 5 and 6 complain that the instruction fees of Shs.40,000,000/= allowed by the taxing officer and upheld by the learned Judge were excessive. Dr. Byamugisha contended that in assessing the instruction fees, the Taxing officer had ignored the provisions of the Sixth Schedule to the Remuneration Rules of 1982 and that on appeal the learned Judge had ignored that irregularity. He maintained that in the exercise of the discretion vested in the taxing officer by the Remuneration rules, he must be guided by the basic fee prescribed under the Sixth Schedule. If he

had done that he would have found that for the chamber application that was opposed the basic fee was not less than Shs. 1.500/ $=$ . That was the minimum. The Taxing officer had discretion to increase it. If the advocate for the respondent thought that because of the complexity of the case, a higher fee was considered appropriate, he ought to have applied to the presiding Judge for a certificate allowing the Advocate to claim a higher fee than had been obtained as envisaged in the proviso to the Sixth Schedule. As no such certificate was obtained the proviso was not applicable and consequently the respondent could not rely on the proviso as justification for the instruction fee awarded.

The other complaints of Dr. Byamugisha were the disparity between the basic fee and the instruction fee actually awarded and the justification for the wide gap between the Shs.1500 minimum and Shs. $40,000,000/$ =. This was because the award could not be based on the value of the subject matter as that was not known. Therefore the Taxing officer was wrong to allude to an award involving billions of shillings. It could also not be based on intricate and complex points of law, as the Taxing officer never relied on them. On those premises he argued that the instruction fee of Shs. $40,000,000/$ = was manifestly excessive.

Mr. Ssemakula, on the other hand, has submitted that the Taxing officer exercised his discretion properly when he reduced the bill of costs of Shs. 240,000,000/= to Shs. 40,000,000/=. In fact the award should have been more than what was awarded. He also argued that there was no need for him to have gone to the presiding Judge for a certificate of complexity. He did not. however say why that was not necessary. He said he relied on the case of Nicholas Roussos vrs. Gulamhussein Habib Virder and anor. - Civil Appeal No. 6 of 1995 Supreme Court (unreported). He however, did not refer to any particular statement in the judgement that he relied upon.

The complaint of Dr. Byamugisha can be grouped into two segments. The first segment is that the taxing officer did not follow the correct mode of taxation. The second segment was that the instruction fee awarded was excessive.

The first complaint was argued under a broad proposition that the learned Judge erred in law in largely upholding the award by the taxing officer when the award had not been based on, and was not supported by, the Advocates (Remuneration and Taxation of Costs)Rules, S.1 – 1982, S.1.123. Dr. Byamugisha's first complain was that the basic figure of Shs.75,000/= used was the minimum figure allowed under the amended schedule and not what was allowed under 1982 schedule. The second was that the taxing officer impliedly relied on the value of the subject matter when he had earlier on directed himself that the award was silent on the subject matter. He also criticized the learned Judge in up holding the award on the ground that

"instruction fee is based on the amount of work involved in for hearing, complication of the case, the preparation importance of the case and to some degree the amount **involved,**" when the Taxing officer did not base his assessment on those matters.

Before arriving at the figure of Shs. $40,000,000/$ = the taxing officer observed as follows:

"I have followed arguments by both counsel. I have perused the bill of costs item by item. The most controversial item in the bill is item 1 which is instruction fees Here counsel Creditor is claiming Shs. 240,000,000/= which he says he for based on the value of the subject matter which is 8 billion shillings. This matter originated from an award made by the Industrial Court. Indeed under rule (VIII) in the sixth schedule to the Advocates (Remuneration and Taxation of Costs) (Amendment) Rules 1996 which replaced the provisions in the 1982 Rules to file objections to arbitrators or commissioner's report the fee shall be as in $(1V)$ or $(v)$ depending on whether it can be valued or not. However the award is silent on the value of the subject matter. This means that we cannot apply the scales set out in (iv) and so we would apply sub-rule (v). This talks of a fee of not less than Shs.75,000/ $=$ . However one thing is certain and that is that although the value of the subject matter is no where to be seen on record the award involved billions of shillings. The application was one opposing the award and seeking to quash it. Though the claim of Shs.240,000,000/ $=$ for instruction fees seems excessive considering all the circumstances of the case, I feel instruction fees of Shs.40,000,000/ $=$ would be reasonable".

It is plain from the above that the taxing officer applied the scales in the Amended Rules. This was upheld by the learned

Judge as correct. As I have held earlier on that was wrong. The applicable rule should have been the Remuneration Rules of 1982. It is also clear that in arriving at the figure of Shs. $40,000,000/=$ both the Taxing officer and the learned Judge had at the back of their minds the value of the award made by the Industrial Court when that was not known.

The learned Judge therefore erred when he held that the Taxing officer did not set out in his ruling or statement which shows evidence that he applied wrong principles.

With regard to the second segment, the target of the attack of Dr. Byamugisha was the quantum of the instruction fee.

The learned Judge addressed the issue of quantum of the instruction fee. After noting the reasons given by the taxing officer in awarding Shs. $40,000,000/=$ he directed himself on the principle applicable upon a judicial review of such award, as deduced from several decided cases which he cited. This was that, on appeal, such award may only be interfered with $(1)$ if it was arrived at by error of law or express application of wrong principle; or (ll) if there are exceptional circumstances such as when the fee is so manifestly excessive or manifestly low as to indicate that it must have been arrived at unjudicially or on erroneous principle. The learned Judge found that the taxing officer exercised his discretion judicially and that he would have no reason to interfere with his decision. Before arriving at the above decision, he referred to the case of In the Estate of Orgilvie Orgilvie $v$ Massey [1910] 103 **LT. R** $154$ 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" Accordingly he declined to reduce the instruction fee.

As I have indicated earlier on, the main complaint of Dr. Byamugisha is the wide gap between the scale fee and the award that was made. It must, however, be borne in mind that the scale fee is not the only factor to take into consideration. An instruction fee exceeding that scale fee by four times has been upheld on appeal because of other factors taken into account: See Arthur $v$ Nyeri Electricity Under taking [1961] E. A. 492. While the scale

fee must be taken into account, it is not the only consideration. Every consideration permitted by the Remuneration Rules, and applicable to a given case, affects in one way or the other, the assessment of the instruction fee. It follows therefore that when determining whether or not such a fee is manifestly excessive or low, regard must be had to all those considerations, giving each its due weight. Also to be taken into consideration are the well known principles outlined by the former court of Appeal for East Africa in the case of Premchad Richard v Quarry Services of East Africa Ltd & Others (1972) E. A. 162, which the learned Judge referred to.

An instruction fee is said to be manifestly excessive if it is out of proportion with the value and importance of the suit and work involved. A few examples of decided cases will suffice to illustrate the point. In Haida Bin Mohamed Elmanchry and others v Khadija Bint Bin Salim (1956) 23 EACA 313, the taxing officer had awarded instruction fee of Shs. 9000 when the value of the subject matter was only Shs. $9,400/=$ . On appeal, it was held that the fee was so excessive as to indicate that it must have been arrived at injudicially or on erroneous principles. The court observed that the taxing officer had "failed entirely to consider relevant factors, such as the small sum involved, the comparatively short time occupied in hearing and the very modest amount of research required to examine the issue of law". The instruction fee was reduced to Shs. 2000/= In Tai Deen vrs. Dobrosklonsky and others (1957) EA. 379, the value of the suit was Shs. 5100. The taxing officer allowed profit costs of Shs 24,000/ $\equiv$ . On appeal the amount was held to be manifestly excessive and was reduced. Briggs J. A, as he then was, made the following observations. At page 380 he said:

# "If the costs of civil litigation are allowed to rise up to a point where the claim itself becomes relatively unimportant, the law is not being properly administered, and public confidence in the court will be destroyed."

And at page 381 he said:-

"I think the amount of the bills indicates that the taxing officer may not have paid sufficient attention to the smallness of the claim. I think the

# instructions fees allowed appear prima facie to have been too large".

On the other hand In the matter of Alexander J. O. Okello and In the matter of M/s. Kayondo & Co. Advocates, Civil Appeal No. 1 of 1997, the Supreme Court refused to interfere with he instruction fee awarded by taxing officer. In that case the suit property was 7,000,000 USD. The property was compulsorily acquired by the Government of Uganda apparently after break down of negotiations for renting or purchasing the property. Mr. Okello instructed the Advocates to oppose the compulsory acquisition and to recover his property. The Advocates carried out instructions through protracted negotiations with the the Government. The Government agreed to revoke the compulsory Mr. Okello agreed to rent the property to the acquisition. Government. A sub-lease agreement between Okello and the Government was executed. Under it, the property was sub-leased to the Government for a term of 20 years at a monthly rental of Uganda Shillings equivalent of 14,000 USD payable five years in advance.

Eventually the Advocates presented their bill of costs. From Item No 1 which was instruction fee, the taxing officer taxed off Shs. 300,000,000/= allowing only Shs. 100,000,000/=. On appeal the Judge upheld the instruction fee of Shs. $100,000,000/=$ .

In addition to the gravity of facing the Government to persuade it to rescind its decision to acquire the property, and the time span, the other matters the taxing officer took into consideration were:

# "the legal skill, exceptional courage, stamina, time and patience the Advocates must have had to employ, the surrounding circumstances under which they had to carry out the exercise and the importance of the property to Okello and its value."

On appeal, the Supreme Court held that both the Taxing officer and the learned Judge treated it as business of exceptional importance and felt satisfied that full considerations were taken into account without loosing sight of the scale fee prescribed under the Sixth Schedule and declined to interfere with the award of the instruction fee.

In the instant case, the instruction fee was for opposing a chamber application for the issuance of prerogative writs of certiorari and Prohibition to quash an award made by the Industrial court. The hearing of the application did not even take a whole day. The application was dismissed without going into the merit. The taxing officer never said it was a difficult case. The award here did not include the proceedings at the Industrial Court which were probably protracted.

In my view it was an incorrect exercise of discretion to award Shs. $40,000,000/$ =as instruction fee.

The award was completely out of proportion to the gravity of the case and the work involved. It cannot be justified on any principle.

In the result I would allow the appeal and set aside the award of Shs. $40,000,000/$ = as Instruction fee and order that the Bill of costs be re-taxed in accordance with the Sixth Schedule to 1982 Remuneration Rules by another taxing officer. The appellants are awarded costs of the appeal and in the court below.

Dated at Kampala this ......28th.........day of April, 1998.

J. P. BERKO JUSTICE OF APPEAL.

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

#### (CORAM: S. T. MANYINDO - DCJ, J. P. BERKO - JA, S. G. ENGWAU - JA)

#### CIVIL APPEAL NO. 51 OF 1996

#### **BETWEEN**

Ugarde Banker

IGAMDA BAMLERS (EMPLOYMENT ASSOCIATION): :::::::: APPELLANT

PIA

#### **VERSUS**

#### NATIONAL UNION OF CLERICAL COMMERCIAL PROFESSIONALS & TECHNICAL EMPLOYEES **RESPONDENT** ::::::::

(Arising from the Ruling and Order of High Court at Kampala dated 22^nd August 1996, in Misc. Appeal No. 183/96)

#### **JUDGMENT OF MANYINDO - DCJ:**

I read the judgment of Berko, JA, in draft and I agree with it. As Engwau, JA, also agrees, the appeal is allowed. The taxed costs of Shs. $40,000,000$ are set aside. The respondent's Bill of costs shall be retaxed in accordance with the Sixth Schedule to the Advocates (Renumeration and Taxation of Costs) Rules, 1982. The appellant will have the costs of this appeal and in the High Count

DATED at Kampala this: $28$ Day of: Day of: 1998.

augunde

S. T. MANYINDO DEPUTY CHIEF JUSTICE

# THE REPI,]BLIC OF UGANDA IN THE COURT OF APPEAL AT KAMPALA CIVIL APPEAL NO. 51 OF 1996

# CORAM: THE HON, S,T ANYINDO. DCJ THE HON. J. P BERKO. J. A. & THE HON. S. G. ENGWAU. J. A

# UGANDA BANKERS (EMPLOYERS ASSOCIATION : APPELLANT

#### VERSUS

### NATIONAL UNION OF CLERICAL COMMERCIAL PROFESSIONAL & TECHNICAL EMPLOYEES RESPONDENT

### (Arising from the Ruling and Order of High Court at Kampala dated22nd August 1996 in Misc. Appeal No. 183/96.)

#### JUDGMENT OF ENGWAU. J. A.

a

I have had the benefit of reading the judgment of Berko, J. A. in draft and I agree with it. The matter in dispute was a Chamber Summons for the issuance of the writs of certiorari and prohibition. The application was heard and dismissed with costs by the High Court.

The Bill of Costs contained an item of shs. 240 million as instructions fees. Under that item, the taxing officer allowed shs. 40 million as the instructions fees. But under rule(vii)of the Sixth Schedute to the Advocates (Remuneration & Taxation of Costs) Rules, 1982, which was applicable in the present matter, all the applications by Notices of Motion, or Chamber Summons, unopposed should attract minimum award of costs of not less than shs. 1,000/=, but when the application is opposed not less than shs. 1,500/:.

The proviso to the Sixth Schedule states:-

"(1) where, due to the complexity of a case, a

higher fee is considered appropriate, the e:rir( advocate for aEhix party may apply to the presiding Judge or Magistrate, as the case may be, for a certificate allowing him to claim ^a higher fee; the Judge or Magistrate shall then specify the fraction or percentage by which the instruction fee should be increased".

In the present case no such certificate was obtained. The crux of the matter was the justification for the wide gap between shs. 1,500/= as the minimum and shs. 40 million actually awarded as the instruction fees, especially as the value of the suit was not known. In addition, the hearing of the application did not even take a whole day as it was dismissed without going into the merit. In the premises, I would agree that the taxing officer incorrectly exercised his discretion to award an astronomical figure of shs. 40 million as instruction fee.

In the result, I would allow the appeal with costs here and in the court below

rf Dated at Kampala this.h'Iday of. A\$\1998

GW U S,G.

o

JUSTICE OF APPEAL.