Wakilii

Shumuk Springs Development Ltd & 3 Ors v Mwebesa Katatumba & 6 Ors (Taxation Appeal No. 21 of 2012)

High Court · [2013] UGCOMMC 22 · 2013 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Taxation appeal from High Court Commercial Division arising from taxation of costs awarded in Civil Suit No. 375 of 2009
Decision
Instruction fees awards to respondents 1-5 set aside and remitted to the Registrar for reassessment on correct principles

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the Registrar erred in principle in assessing instruction fees against the first respondent and respondents 2-5 by ascribing values to the subject matter that could not be reliably established from the pleadings or judgment. Instruction fees must be based on the value of the subject matter as claimed in the pleadings or stated in the judgment under Sixth Schedule rule 1(a)(iv), or on the basic fee under rule 1(a)(v) where value cannot be ascertained. The awards of instruction fees to respondents 1-5 were set aside and remitted to the Registrar for reassessment.

Outcome

Instruction fees awards to respondents 1-5 set aside and remitted to the Registrar for reassessment on correct principles

Facts

The appellants filed Civil Suit No. 375 of 2009 in the Commercial Division seeking a permanent injunction prohibiting dealings with property, a declaration that a purchase agreement was null and void, general damages and costs. The suit concerned 27 condominium units out of approximately 100 units at Plot 2 Colville Street, valued in the pleadings at US$5 million for the entire property. After about two years, the respondents raised a preliminary objection. The court dismissed the suit: the claim against the first respondent was dismissed under Order 6 rule 30 as frivolous and vexatious because it arose from alleged breach of a court order in another pending suit (HCCS 126/2009); the claims against respondents 2-6 were dismissed under Order 7 rule 11 as disclosing no cause of action. The Registrar awarded instruction fees totaling UGX 376,549,100 based on valuations of the condominium units. The appellants appealed on grounds that the awards were excessive, the Registrar failed to apply the correct scale, and failed to consider that the dismissal was interlocutory and the claim was for an injunction without ascertainable value.

Issues

  1. Whether the Registrar erred in law when she awarded instruction fees based on the value of the subject matter which could not be ascertained from the judgment or the pleadings.
  2. Whether the correct basis for instruction fees was Sixth Schedule rule 1(a)(iv) (where value of subject matter is ascertainable) or rule 1(a)(v) (where value cannot be ascertained).
  3. Whether the dismissal of the plaint was interlocutory or final for purposes of assessing instruction fees.
  4. Whether instruction fees awarded to respondents represented by the same firm should be combined rather than assessed separately.

Orders

  • The appeal succeeds in part.
  • The award of instruction fees to the first respondent is set aside.
  • The award of instruction fees to the second, third, fourth and fifth respondents is set aside and remitted to the Registrar for reassessment.
  • Grounds 1, 3, 4, 5, 6, 7, 8 and 9 of the appeal are dismissed.
  • No order as to costs.

Rules and key headnotes

Taxation of Costs — Instruction Fees — Ascertainment of Value of Subject Matter
Under Sixth Schedule rule 1(a)(iv) of the Advocates (Remuneration and Taxation of Costs) Regulations, instruction fees based on the value of the subject matter can only be applied where that value can be determined from the amount claimed in the pleadings or from the judgment; where the value cannot be ascertained from either source, the basic fee under rule 1(a)(v) applies.
Taxation of Costs — Instruction Fees — Injunction Claims
Where a plaintiff claims only a permanent injunction without pleading or proving a monetary value attached to the property or right protected by the injunction, the value of the subject matter for taxation purposes cannot be ascertained from the pleadings under rule 1(a)(iv); the taxing officer must instead apply rule 1(a)(v) providing a basic fee of not less than UGX 75,000.
Taxation of Costs — Appeals from Taxation — Errors of Principle
On appeal from a taxing officer's decision, the appellate court will only interfere where the taxing officer applied a wrong principle of law; the court will not substitute its own assessment of reasonable fees merely because it would have allowed a different amount, absent an error in principle.
Taxation of Costs — Interlocutory vs Final Orders — Subject Matter for Taxation
For purposes of assessing instruction fees, the court must determine whether the dismissal finally disposed of the substance of the dispute between the parties; if the dismissal does not determine the real dispute on the merits but relates only to procedural or preliminary matters, it may be interlocutory; where the dismissal finally determines the parties' proprietary or substantive rights, the subject matter is the property or rights in dispute.
Taxation of Costs — Counsel from Same Firm Representing Multiple Parties
Where the same law firm represents multiple respondents, each represented party is entitled to separate instruction fees based on the value of the subject matter affecting that party's individual rights, unless a certificate for second counsel is required under rule 1(ix) or rule 1(xi) of the Sixth Schedule; the mere fact of common representation does not automatically require combining or reducing instruction fees where the parties' interests and property rights are separate.
Taxation Appeals — Grounds of Appeal — Matters Not Raised Before Taxing Officer
Under regulation 3 of the Advocates (Taxation of Costs) (Appeals and References) Regulations, an appeal must set forth in numbered paragraphs the specific matters in which the taxing officer is alleged to have erred; a taxing officer cannot err on a matter that was not raised before her and was not in controversy for resolution, and the appellate court will ordinarily not entertain new grounds raised for the first time on appeal.

Legislation cited (17)

  • Advocates Act s.62(1)
  • Advocates (Taxation of Costs) (Appeal and References) Regulations r.3
  • Advocates (Remuneration and Taxation of Costs) Regulations, Sixth Schedule r.1(a)(iv)
  • Advocates (Remuneration and Taxation of Costs) Regulations, Sixth Schedule r.1(a)(v)
  • Advocates (Remuneration and Taxation of Costs) Regulations, Sixth Schedule r.1(ix)
  • Advocates (Remuneration and Taxation of Costs) Regulations, Sixth Schedule r.1(xi)
  • Advocates (Remuneration and Taxation of Costs) Regulations r.37
  • Civil Procedure Rules O.6 r.30
  • Civil Procedure Rules O.7 r.11
  • Civil Procedure Rules O.7 r.13
  • Civil Procedure Rules O.43
  • Civil Procedure Rules O.43 r.2
  • Civil Procedure Rules O.43 r.27
  • Civil Procedure Rules O.44 r.2
  • Civil Procedure Act s.80
  • Civil Procedure Act s.80(1)
  • Civil Procedure Act s.80(2)

Cases cited (8)

  • Makula International Ltd v Cardinal Nsubuga [1982] HCB 11
  • Bank of Uganda v Banco Arabe Espanol [2000] 2 EA 297
  • Nagwoko v Tutahaba [1969] EA 442
  • Development Finance Company Ltd and others versus Uganda Poly Bags civil appeal number 58/1999
  • Bank of Uganda versus Trans road civil appeal 03/1997
  • Nicholas Roussos vs. Gulam Hussein Habib Virani Supreme Court civil appeal number 6 of 1995
  • Salaman v Warner [1891] 1 QB 734
  • Boson v Altringham Urban District Council [1903] 1 KB 547

Full judgment

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Shumuk Springs Development Ltd & 3 Ors v Mwebesa Katatumba & 6 Ors (Taxation Appeal No. 21 of 2012) [2013] UGCommC 22 (8 February 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.