Wakilii

Tumushabe v Attorney General (Civil Reference 3 of 2009)

Supreme Court · [2009] UGSC 36 · 2009 Reference Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Reference to the full Court under Rule 109(7) and (8) from a single judge's ruling on a taxation reference, seeking to restore the taxing officer's instruction fee award
Decision
Reference dismissed; single judge's award of Shs.15,000,000 instruction fee upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

On a reference from a single judge's reduction of a taxed instruction fee from Shs.50,000,000 to Shs.15,000,000, the Court held that an appellate court will not interfere with the assessment of instruction fees unless the award is wrong in principle or manifestly inadequate or excessive. There is no formula for assessing a reasonable instruction fee; paragraph 9(2) of the Third Schedule lists factors, including the nature, importance and difficulty of the appeal and all other relevant circumstances (which may include the fall in the value of money). The single judge was not shown to have erred in principle, and Shs.15,000,000 was not manifestly inadequate. The reference was dismissed.

Outcome

Reference dismissed; single judge's award of Shs.15,000,000 instruction fee upheld

Facts

The applicant, Joseph Tumushabe, successfully petitioned the Constitutional Court under Article 50 of the Constitution; that court ordered each party to bear its own costs given the public interest nature of the litigation. The Attorney General appealed to the Supreme Court, which dismissed the appeal and awarded the appeal costs to the applicant as the successful respondent. The taxing officer allowed the applicant's instruction fee at Shs.50,000,000. On the Attorney General's reference, a single judge reduced that fee to Shs.15,000,000. The applicant referred the matter to the full Court seeking restoration of the Shs.50,000,000, arguing the reduced sum was manifestly inadequate and that the single judge had failed to consider all relevant factors, including the fall in the value of money. The State Attorney had earlier conceded Shs.20,000,000 as reasonable, a concession she sought to disown.

Issues

  1. Whether the single judge's assessment of Shs.15,000,000 as instruction fees was manifestly inadequate, warranting restoration of the taxing officer's award of Shs.50,000,000.
  2. Whether the single judge failed to take into account all the factors set out in paragraph 9(2) of the Third Schedule to the Rules of the Court that the taxing officer had properly construed.

Orders

  • The reference is dismissed.
  • The decision of the single judge reducing the instruction fee to Shs.15,000,000 is upheld.
  • Each party to bear its own costs.

Rules and key headnotes

Costs — Taxation — Instruction Fees — Reasonable fee and the hypothetical counsel test
There is no formula for calculating a reasonable instruction fee; paragraph 9(2) of the Third Schedule to the Rules of the Supreme Court sets out factors to be weighed, and the reasonable fee is what a hypothetical counsel, capable of conducting the case effectively but unwilling to insist on the high fee of preeminent counsel, would be content to take on the brief.
Costs — Taxation — Interference on reference — Wrong in principle or manifestly inadequate or excessive
A court on reference will not interfere with an assessment of instruction fees unless the assessment is wrong in principle or the amount is manifestly inadequate or excessive.
Costs — Taxation — Relevant circumstances — Fall in the value of money
The phrase 'all other relevant circumstances' in paragraph 9(2) of the Third Schedule permits a taxing officer to take into account the fall in the value of money when assessing a reasonable instruction fee.
Costs — Taxation — Record of proceedings — Concession by counsel
A concession recorded in the taxing officer's record of proceedings is binding and cannot be recanted without evidence that the record was falsified; absent such evidence the record will be accepted as accurate.

Legislation cited (6)

  • Rules of the Supreme Court r.109(7)
  • Rules of the Supreme Court r.109(8)
  • Rules of the Supreme Court r.106(1)
  • Rules of the Supreme Court r.106(3)
  • Rules of the Supreme Court Third Schedule paragraph 9(2)
  • Constitution of Uganda Article 50

Cases cited (6)

  • Paul Ssemogerere & Zachary Olum v Attorney General (Civil Application No. 5 of 2001)
  • Charles Onyango Obbo v Attorney General (Civil Application No. 6 of 2002)
  • Premchand and Raichand v Quarry Services (1972) EA 162
  • Simpsons Sales (London Ltd Vs Herndon Corporation (1964) ALL ER 833
  • Attorney General v James Kamoga & James Kimala (Civil Application No. 2 of 2008)
  • Uganda Law Society Vs Attorney General

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Tumushabe v Attorney General (Civil Reference 3 of 2009) [2009] UGSC 36 (29 July 2009)
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.