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

Supreme Court · [2003] UGSC 8 · 2003 Application Partly Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Reference to the full Court under rule 105(7) and (8) seeking to vary a single Justice's decision on a taxation reference, which had reduced the applicants' instruction fee.
Decision
Single Justice's instruction-fee award of Shs. 30,000,000 set aside and substituted with Shs. 60,000,000.

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Holding

On a reference under rule 105 of the Court's Rules, the Supreme Court held that the single Justice rightly interfered with the taxing officer's award of Shs. 350,000,000 as instruction fee, since that sum was manifestly excessive and thus revealed a wrong principle (third ground failed). However, the single Justice misdirected himself by underrating the importance and difficulty of the constitutional appeal, by treating modern electronic research as negating hard work, and by disregarding guideline (vii) on 'all other relevant circumstances'. His award of Shs. 30,000,000 was accordingly too low. The Court set it aside and substituted Shs. 60,000,000, awarding the applicants half their costs.

Facts

In 1999 Parliament passed the Referendum and Other Provisions Act, 1999. The applicants, leaders of the Democratic Party, petitioned the Constitutional Court for a declaration that the Act was null and void. The Attorney General raised four preliminary objections, which were upheld, and the petition was struck out. The applicants appealed successfully to the Supreme Court and were awarded costs. They filed a joint bill of costs claiming 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 respondent referred the instruction-fee award to a single Justice (Tsekooko, JSC) as excessive, and the single Justice reduced it to Shs. 30,000,000. Dissatisfied with the reduction, the applicants referred the matter to the full Court seeking to restore the taxing officer's figure.

Issues

  1. Whether the single Justice's assessment of Shs. 30,000,000 as instruction fee was manifestly inadequate.
  2. Whether the single Justice misapplied the guidelines under rule 9(2) of the Third Schedule, in particular by underrating the importance and difficulty of the constitutional appeal and by disregarding guideline (vii) ('all other relevant circumstances').
  3. Whether the single Justice was entitled to interfere with the taxing officer's award of Shs. 350,000,000.
  4. What sum represents a reasonable instruction fee in the circumstances of the case.

Orders

  • Application partially succeeds.
  • The single Justice's award of Shs. 30,000,000 as instruction fee 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 this Court, before the single Justice, and before the taxing officer.

Key headnotes

Civil Procedure — Costs — Taxation — Interference with taxing officer's award
Save in exceptional cases a judge will not interfere with a taxing officer's assessment of a reasonable fee; interference is justified only where the award is manifestly excessive or manifestly inadequate, where there has been a misdirection, or where the assessment proceeded on a wrong principle.
Civil Procedure — Costs — Wrong principle inferred from quantum
Application of a wrong principle by a taxing officer may be inferred from an award that is manifestly excessive or manifestly low, and even where error is shown a judge should interfere only if the error substantially affected the quantum and upholding it would cause injustice.
Civil Procedure — Costs — Instruction fee — Relevant circumstances under rule 9(2)
In assessing instruction fee under paragraph 9(2) of the Third Schedule the taxing officer or judge must weigh all relevant circumstances, including the nature, importance and difficulty of the appeal and 'all other relevant circumstances' under guideline (vii); to treat that guideline as inapplicable is a misdirection.
Civil Procedure — Costs — Difficulty of appeal — Legal research
The availability of modern electronic legal research does not by itself negate evidence of hard work and industry; the skill required to use such resources and the citation of numerous foreign authorities on novel issues may indicate the difficulty and complexity of an appeal.
Civil Procedure — Costs — Instruction fee — Balancing exercise
There is no formula for calculating instruction fee; its assessment is an intricate balancing exercise reconciling reimbursement of the successful party's reasonable expenses, the need to attract recruits to the profession, and the duty to keep the courts accessible to those who are not wealthy.
Civil Procedure — Costs — Test for assessing a brief or instruction fee
The correct approach to assessing a brief or instruction fee is to envisage a hypothetical counsel competent to conduct the case effectively but not commanding pre-eminent fees, and to estimate the fee such counsel would be content to accept.

Legislation cited (7)

  • Rules of the Supreme Court r.105(1)
  • Rules of the Supreme Court r.105(3)
  • Rules of the Supreme Court r.105(7)
  • Rules of the Supreme Court r.105(8)
  • Rules of the Supreme Court Third Schedule para 9(2)
  • Referendum and Other Provisions Act 1999
  • Expropriated Properties Act 1982 s.1(1)(c)

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 and Another v Sole Electric (U) Ltd (Civil Application No. 11 of 1994)
  • Mukula International v Cardinal Nsubuga (1982) HCB 311
  • 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)
  • Simpson's Sales (London) Ltd v Herndon Corporation [1964] All ER 833
  • Steel & Petrol v Uganda Sugar Factory (1970) EA 141
  • A. L. Kayira and P. K. Ssemogerere -vs- Rugumayo and Others
  • Prof. E. F. Ssempebwa v Attorney General (Constitutional Case No. 1 of 1986)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.