Wakilii

Alexander Jo Okello v M s Kayondo & Co. Advocates (Civil Appeal 1 of 1997)

Supreme Court · [1998] UGSC 4 · 1998 Appeal Dismissed; Cross-Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from the taxation of an advocate-client bill of costs, heard with the advocates' cross-appeal
Decision
Appeal dismissed; cross-appeal allowed in part; taxed costs varied upward to shs. 135,854,000.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Supreme Court dismissed the client's appeal against the taxation of his advocates' bill of costs. The work of resisting compulsory acquisition and negotiating a settlement was contentious, chargeable under the Sixth Schedule, so no election under rule 16 arose. The taxing officer properly took the US$7 million value the client himself supplied and never disputed at taxation, and the instruction fee of shs. 100,000,000 was not manifestly excessive: the scale fee is only one of several permitted considerations. On the cross-appeal, the one-third uplift under Sixth Schedule para 1(b) applies even where each party bears its own costs, but is computed on the instruction fee alone, not the total bill. Removal of the unlawfully added interest stood.

Outcome

Appeal dismissed; cross-appeal allowed in part; taxed costs varied upward to shs. 135,854,000.

Facts

In 1991 the appellant's developed leasehold property at Nakasero, Kampala, was compulsorily acquired by Government after negotiations to rent or purchase it broke down. The appellant instructed the respondent advocates to oppose the acquisition and recover the property. Through protracted negotiations, a High Court application and a civil suit, the advocates secured a settlement: Government revoked the acquisition and the appellant sub-leased the property to Government for a 20-year term at a monthly rental equivalent to US$14,000, payable five years in advance. The appellant had told the advocates the property was worth US$7 million, a value pleaded in the suit and not disputed at the time. A dispute over fees then arose. The advocates filed a bill of costs claiming an instruction fee of shs. 400,000,000. The taxing officer allowed shs. 100,000,000, based on the US$7 million value, added one-third, and certified interest at 6%. On appeal the High Court (Berko, J) varied the award. Both parties appealed to the Supreme Court.

Issues

  1. Whether the matters the advocates were instructed on were non-contentious such that the client had to be put on election under rule 16 of the Remuneration Rules.
  2. Whether the taxing officer assessed the instruction fee in accordance with the Remuneration Rules, including by taking the correct value of the subject matter.
  3. Whether the instruction fee of shs. 100,000,000 was manifestly excessive so as to warrant appellate interference.
  4. Whether the taxing officer's certification of 6% interest after the taxation order had been signed was lawful.
  5. Whether the one-third uplift under the Sixth Schedule applies where each party bears its own costs, and on what amount it is to be computed.

Orders

  • Appeal dismissed.
  • Cross-appeal allowed in part.
  • The order of Berko, J varied by substituting for the sum of shs. 102,865,500 the sum of shs. 135,854,000.
  • Costs of the appeal and of the court below awarded to the Advocates.
  • One-half of the costs of the cross-appeal awarded to the Advocates.

Rules and key headnotes

Taxation of Costs — Contentious and Non-Contentious Matters — Rule 16 Election
Work done in resisting a compulsory acquisition and negotiating a settlement to recover the property is a contentious matter chargeable under the Sixth Schedule; rule 16 of the Remuneration Rules, which applies only to non-contentious matters, does not require the advocate to put the client on election.
Taxation of Costs — Value of Subject Matter — Estoppel
Where a client himself supplies the value of the subject matter and that value is not disputed by or on his behalf at the taxation stage, the taxing officer may proceed on that value, and the client cannot later be heard to challenge it.
Taxation of Costs — Instruction Fee — Manifestly Excessive — Appellate Interference
An appellate court will interfere with a taxing officer's instruction fee only where it was reached by an error of law or wrong principle, or is so manifestly excessive or low as to indicate it was arrived at unjudicially; the prescribed scale fee is a relevant consideration but not the only one.
Taxation of Costs — One-Third Rule — Application Where Each Party Bears Own Costs
The one-third uplift on the instruction fee provided by paragraph 1(b) of the Sixth Schedule applies as between advocate and client even where each party bears its own costs and no party-and-party fee was taxed; the legislature did not intend such a settlement to forfeit the advocate's entitlement.
Taxation of Costs — One-Third Rule — Computation
The one-third uplift under the Sixth Schedule is calculated on the taxed instruction fee alone and not on the total bill of costs; computing it on the total bill is an error.
Taxation of Costs — Functus Officio — Award of Interest
Once a taxing officer has made and signed the taxation order he is functus officio; the later inclusion of interest in the certificate of taxation, absent lawful review proceedings, is unlawful and falls to be excised.

Legislation cited (8)

  • Advocates (Remuneration and Taxation of Costs) Rules 1982 (S.I. No. 123 of 1982) r.4
  • Advocates (Remuneration and Taxation of Costs) Rules 1982 r.16
  • Advocates (Remuneration and Taxation of Costs) Rules 1982 r.17
  • Advocates (Remuneration and Taxation of Costs) Rules 1982 r.34
  • Advocates (Remuneration and Taxation of Costs) Rules 1982 r.35
  • Advocates (Remuneration and Taxation of Costs) Rules 1982 r.55
  • Advocates (Remuneration and Taxation of Costs) Rules 1982 Sixth Schedule para 1(b)
  • Advocates Act 1970 ss.58, 59

Cases cited (5)

  • Makula International Ltd v His Eminence Cardinal Nsubuga & Another (Civil Appeal No. 4 of 1981)
  • Premchand Raichand Ltd v Quarry Services Ltd (No. 3) [1972] EA 162
  • [case name illegible in OCR] (1961) E.A. 492
  • [case name illegible in OCR] (1957) ... 379 (per Briggs J.A.)
  • [case name illegible in OCR] (1916) 23 ... 131

Full judgment

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Alexander Jo Okello v M s Kayondo & Co. Advocates (Civil Appeal 1 of 1997) [1998] UGSC 4 (2 February 1998)
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.