Paul .K. Ssemogerere & Anor v Attorney General (Civil Application 5 of 2001)

Supreme Court · [2003] UGSC 43 · 2003 Application Partly Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Reference to the full Court under rule 105(7) and (8) to vary a single Justice's decision on a taxation reference concerning instruction fee.

Decision

Application partly succeeded; instruction fee varied from Shs 30,000,000 to Shs 60,000,000.

The full judgment

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Holding

On a reference to the full Court, the Supreme Court considered whether a single Justice erred in reducing the applicants' taxed instruction fee from Shs 350M to Shs 30M in a successful constitutional appeal. The Court held the single Justice rightly interfered with the taxing officer's award because Shs 350M was manifestly excessive (third ground failed), but misdirected himself by underrating the importance and difficulty of the constitutional appeal and by treating guideline (vii) ('all other relevant circumstances') as inapplicable. The application partly succeeded: the Shs 30M award was set aside and substituted with Shs 60M, with the applicants awarded half their costs.

Facts

The applicants, leaders of the Democratic Party, petitioned the Constitutional Court challenging the validity of the Referendum and Other Provisions Act 1999. The petition was struck out on preliminary objections, but the applicants appealed successfully to the Supreme Court, which awarded them costs. Their bill of costs claimed Shs 1,550,000,000 as instruction fee. The taxing officer allowed Shs 350,000,000 as instruction fee and Shs 1,959,000 for other items. The Attorney General, dissatisfied with the instruction fee as excessive, referred it to a single Justice (Tsekooko JSC), who reduced it to Shs 30,000,000, reasoning that the appeal was not especially difficult given modern electronic legal research and that it was distinguishable from comparable taxation cases. Dissatisfied with the reduction, the applicants brought this reference to the full Court to vary the single Justice's decision.

Issues

Whether the single Justice of the Supreme Court erred in assessing the instruction fee at Shs 30,000,000 as manifestly inadequate, having underrated the importance, difficulty and complexity of the constitutional appeal.
Whether the single Justice misdirected himself by treating guideline (vii) ('all other relevant circumstances') as inapplicable to the reference.
Whether the single Justice erred in interfering with the taxing officer's discretionary award of instruction fee.
What is a reasonable instruction fee in all the circumstances of the case.

Orders

Application partially succeeds.
The award of Shs 30,000,000 as the applicants' instruction fee made by the single Justice is set aside and substituted with an award of Shs 60,000,000.
The applicants shall have half of the costs of the application before the full Court, before the single Justice, and before the taxing officer.

Key headnotes

Civil Procedure — Taxation of Costs — Interference with Taxing Officer's Assessment

Save in exceptional cases a judge will not interfere with a taxing officer's assessment of a reasonable fee; interference is warranted only where the award is manifestly excessive or manifestly inadequate, or where a wrong principle was applied, and a wrong principle may be inferred from a manifestly excessive or low award.

Civil Procedure — Taxation of Costs — Conditions for Reference under Rule 105

To justify a judge's interference under rule 105(1) and (3) of the Rules of the Supreme Court the applicant must show that a matter of law or principle is involved in the taxing officer's decision, or that the bill as taxed is in all the circumstances manifestly excessive or manifestly inadequate, and the judge then decides the matter as the justice of the case requires.

Civil Procedure — Taxation of Costs — Instruction Fee — Relevant Circumstances (Guideline (vii))

In assessing an instruction fee under paragraph 9(2) of the 3rd Schedule, it is a misdirection to treat the residual guideline of 'all other relevant circumstances' as inapplicable; circumstances arising before, during and after the appeal, including its national importance and impact, must be taken into account.

Civil Procedure — Taxation of Costs — Instruction Fee — Importance and Difficulty of Constitutional Litigation

An appeal raising novel constitutional questions of public importance, on which local authority is scarce, calls for extensive research and places greater responsibility on counsel than an ordinary statutory-interpretation appeal, and accordingly warrants a higher instruction fee; the availability of modern electronic legal research does not by itself negate the difficulty of such research.

Civil Procedure — Taxation of Costs — Test for a Reasonable Brief / Instruction Fee

A reasonable brief or instruction fee is what a hypothetical counsel, competent to conduct the case effectively but not commanding the premium of a counsel of pre-eminent reputation, would be content to accept; there is no fixed formula, and the assessment is an intricate balancing of the parties' and the public's interests.

Legislation cited (4)

Rules of the Supreme Court r.105(1), (3), (7) and (8)
Rules of the Supreme Court 3rd Schedule para 9(2)
Referendum and Other Provisions Act 1999
Constitution of Uganda 1995

Cases cited (13)

Premchand Raichand Ltd v Quarry Services of East Africa Ltd (1972) EA 162
Attorney General v Uganda Blanket Manufacturers (1973) Ltd (Civil Application No. 17 of 1993)
Nanyuki Esso Service v Touring Cars Ltd (1972) EA 500
Patrick Makumbi & Another v Sole Electric (U) Ltd (Civil Application No. 11 of 1994)
Mukula International v Cardinal Nsubuga (1982) HCB 311
The Registered Trustees of Kampala Institute v Departed Asians Property Custodian Board (Civil Application No. 3 of 1995)
General Parts (U) Ltd v Non-Performing Assets Recovery Trust (Civil Application No. 21 of 2000)
Bank of Uganda v Banco Arabe Espanol (Civil Application No. 23 of 1999)
Jaffer Brothers v Departed Asians Property Custodian Board (Civil Application No. 24 of 1999)
Steel & Petrol v Uganda Sugar Factory (1970) EA 141
Simpson's Sales (London) Ltd. -vs- Herndon Corporation (1964), A.E.R.833
A. L. Kayira and P. K. Ssemogerere -us- Rugumayo and Others
Prof. E. F. Ssempebwa v Attorney General (Constitutional Case No. 2 of 1986)

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