[2011] UGCA 19

#### THE REPUBLIC OF UGANDA

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

# **CORAM: HON. JUSTICE AMOS TWINOMUJUNI, JA** [SINGLE JUSITCE]

**CIVIL REFERENCE NO.30 OF 2011** (Arising out of Civil Appeal No.55 of 2008)

# **UGANDA ELECTRICITY BOARD** (IN LIQUIDATION)....................................

### **VERSUS**

PAUL NYAMARERE.................................

#### **JUDGMENT:**

This is a reference against the ruling of his Worship Asaph Ruhinda Ntengye, the Registrar of this Court, in which he allowed costs of Uganda shillings $260,000,000/=$ (two hundred and sixty million only) as taxed costs in Civil Appeal No.55 of 2008 Paul Nyamarere vs UEB [In Liquidation].

The briefbackground to the reference is that the respondent was the successful appellant in Civil Appeal No.55 of 2008. He was awarded costs therein. On 27'h January 201l, the Registrar of this Court in a taxation ruling awarded the respondent Ug.shs.260,000,000/:. The applicant was not satisfied with that ruling, hence this reference.

The applicant raised two grounds for the reference:-

- ( I ) The sum of Ug.shs.259,737 ,5001: awarded as instruction fees under item I of the Bill of Costs is in all circumstances inordinately and manifestly excessive. - (2) In awarding the said sum of U9.sha.259,737,5001: as Instruction fee, the learned Registrar acted on the wrong principle and thereby erroneously held that the value of the subject matter in the appeal was Ug.shs.39,000,000/:.

In my judgment, there is really only one issue in this reference, namely, whether the value of the subject matter was quantifiable and if so whether the figure of Ug.shs.39,000,000/: was the correct value. Learned counsel for the applicant submitted written submissions. Learned counsel for the respondent made a comprehensive oral response before me at the hearing of the

reference. Both counsel submitted authorities which are on the file.

I have carefully studied the grounds for this reference together with the arguments that have been made in favour of the reference. The same attention has been paid to the arguments and authorities advanced by counsel for the respondent. What follows is a considered judgment which takes into account all the relevant matters I have referred to above.

In his ruling, the learned Registrar/Taxing Master of this Court considered the issue now before me as follows:-

"I have heard the submissions of both counsel on the question of whether the subject matter of the appeal had a monetary value of 39 billion. It seems to me that both counsel are agreed, as counsel for the Judgment Debtor put it, that;

'This oppeal arose in o ruling in a miscellaneous application whiclt itself arosefrom t suit in which o large sum of money was involved.'

Counsel for the Judgment Creditor put it this way:

'The subject ,notter of the oppeol is properly 39 billion becuuse the High Court order dismissing Application No.290/2007 from which this appeal srose olso dismissed the cloimfor this umounl The consequential order wos sougltt in tlte sum of this omount payoble by the respondent. The judgment of this Court reinstated that claim. If this oppeal hod not been worn hy the appellanls, this claim would ltuve been lost...'

I agree with the submission of counsel for the Judgment Creditor in a Civil Suit which sum was sought to bc recovered in the application that was/is the subject of thc appeal in this Court from which the bill of costs arises. It is therefore my considered opinion that contrary to the submission of counsel for the Judgment Debtor, the subject matter had a specific and certain monetary value which is a guide to how much instruction fees counsel is always entitled to as per item 9(2) third schedule to the rules of this Court(supra).

I have no doubt that the appeal was important to both the appellants and the respondents largely because of the amounts involved. I may not be ablc to determine the complexity of the matter as a relevant factor, but

given that the amount involved is 39 billion, it is my opinion that a substantial amount of instruction fees is called for.

However, 3.9 billion is in my humble view exaggerated and not called for. Taking into account all factors and the effort put in by counsel to argue the appeal, I am of the firm conviction that 259,737,500/: is sufficient for instruction fees and I allow this much."

To strengthen this argument, Mr. Tibesigwa learned counsel for the respondent submitted before me as follows:-

"The History of this dispute is well made out on the background of the application and in the judgment of the Court on record of the reference. Thc High Court gave judgment to the respondent who lvas claiming on behalf of others a substantial sum. The same court nullified its own judgment, hence the appeal to this court. Thc nullification of its judgment in the High Court nullified the award given to the respondent. On appeal, where the High Court judgment was reinstated, automatically the High Court award was re-instated so the matter directly became an issue on appeal. The ruling of the Taxing Officer did not base his ruling

solely on the subject matter of the dispute. Several other factors were considered."

I agree with this reasoning by learned counsel and the findings of the Taxing Master reproduced above. I am not persuaded by the argument of learned counsel for the applicant that the claim in the High Court did not have a value or that the value is being determined by the Auditor General. The applicant's counsel did not give me any proof that this is the case.

In the result, I hold that the assessment of the Taxing Master was not based on any wrong principle and the taxed costs of Ug.shs.259,737,500/ $=$ was a fair award which I hereby uphold. The reference is dismissed with costs of the reference to the respondents.

Dated at Kampala this....................................

Hon. Justice A. Ny JUSTICE OF APPEAL.

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