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Concorp International Ltd v Eastern & Southern Trade & Development Bank [2013] UGSC 18

Supreme Court · 2013 Reference Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference to the full bench of the Supreme Court from the ruling of a single Justice on a taxation reference, under rule 106(7) and (8) of the Rules of the Supreme Court
Decision
Reference allowed; instruction fee increased from Shs 6,000,000 to Shs 30,000,000

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Supreme Court, on a reference from a single Justice, held that an appellate court will interfere with a taxing officer's instruction-fee award only where it is so high or low as to amount to an injustice. The single Justice correctly applied the taxation principles in rule 9(2) of the Third Schedule but failed to take into account that the applicant had been compelled to litigate the respondent's preliminary objection up to the Supreme Court. On that basis Shs 6,000,000 was manifestly too low. The reference was allowed and the instruction fee substituted at Shs 30,000,000. The applicant's claim for Shs 100,000,000, premised on the Court of Appeal award and the respondent's ability to pay, was rejected.

Outcome

Reference allowed; instruction fee increased from Shs 6,000,000 to Shs 30,000,000

Facts

The applicant sued the respondent bank in HCCS No. 48 of 2001 arising out of a loan agreement. The respondent raised a preliminary objection that under Cap 53 no suit could be maintained against it without a waiver from its President. The High Court upheld the objection and dismissed the suit, and the Court of Appeal dismissed the applicant's appeal. On further appeal the Supreme Court allowed the appeal, holding that a waiver was not necessary, ordered the respondent to pay the applicant's costs in the Supreme Court and Court of Appeal, remitted the case to the High Court for hearing on the merits, and ordered the High Court costs to abide the outcome. On taxation, the Deputy Registrar allowed the applicant's bill of costs at Shs 7,624,070, including Shs 6,000,000 as instruction fee. A reference to a single Justice upheld that award. The applicant then referred the matter to the full bench, contending that the instruction fee was manifestly low and should reflect the interpretation of Cap 53, consistency of awards, and the research undertaken, and seeking Shs 100,000,000.

Issues

  1. Whether the single Justice erred in upholding the taxing officer's award of Shs 6,000,000 as instruction fee.
  2. Whether the instruction fee ought to have been based on the interpretation of Cap 53 Laws of Uganda and the consistency of past awards.
  3. Whether the award of Shs 6,000,000 was manifestly too low so as to warrant interference.
  4. Whether the single Justice properly re-evaluated the evidence regarding the principles of taxation of costs.

Orders

  • Reference allowed.
  • Ruling of the single Justice set aside.
  • Instruction fee allowed at Shs 30,000,000.
  • Other costs to remain as awarded by the taxing officer and confirmed by the single Justice.
  • Applicant to get half of the costs of this reference and of the reference before the single Justice.

Rules and key headnotes

Civil Procedure — Taxation of Costs — Appellate Interference with a Taxing Officer's Award
A court will not interfere with the award of a taxing officer, particularly one of great experience, merely because it considers the award too high or too low; it will interfere only where the award is so high or so low as to amount to an injustice to one party.
Civil Procedure — Taxation of Costs — Instruction Fee — Relevant Considerations
Under rule 9(2) of the Third Schedule to the Rules of the Supreme Court, the instruction fee is a sum the taxing officer considers reasonable, having regard to the amount involved in the appeal, its nature, importance and difficulty, the interest of the parties, the other costs to be allowed, the general conduct of the proceedings, the fund or person to bear the costs, and all other relevant circumstances.
Civil Procedure — Taxation of Costs — Ability of a Party to Pay
Costs should be fair, and a court should avoid awarding an exorbitant instruction fee simply because a party has the ability to pay; the ability to pay is only one of the relevant circumstances to be weighed.
Civil Procedure — Taxation of Costs — Consistency of Awards
The principle of consistency requires that cases having similar facts attract similar awards; an award made in an interlocutory matter is not inconsistent with awards made in cases that were finally determined on materially different facts.
Civil Procedure — Taxation of Costs — Court of Appeal Award Not Determinative
The amount of an instruction fee in the Supreme Court should not be fixed by reference to the instruction fee awarded in the Court of Appeal.

Legislation cited (3)

Cases cited (5)

  • Ebrahim A. Kassim & Others v Habre International (Taxation Reference No. 16 of 1999)
  • Premchand Raichand Ltd & Anor v Quarry Services of East Africa Ltd & Others (No. 3) [1972] E.A. 162
  • Patrick Makumbi v Sole Electrics Ltd [1990-1994] E.A. 306 (Application No. 11 of 1994)
  • Registered Trustees of Kampala Institute v DAPCB (Civil Application No. 3 of 1995)
  • Bank of Uganda v Banco Arabe Espanol [1999] E.A. 45

Full judgment

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Concorp International Ltd v Eastern & Southern Trade & Development Bank [2013] UGSC 18 (6 December 2013)
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.