Byamugisha & Another v National Social Security Fund (Civil Reference 2 of 2012) [2012] UGSC 21 (21 September 2012)

I 1'lIti lttit,tJtlt,,tc otf UGANDA tN't'ilti sut'It ttM It coUll'l' ol,' UGANI)A AT I(41\IPALA I C O ltAM : I{ITU MBA, J. S.C.] ctvtL RET.EfiENCE NO 02 0lt 2012 a IO l5 tiiii;i;i;iiitii::iii:i;i;i;:::::i:i;::::::::: APPLICANT V I.]RS t]S tArising from Ciail Application No.25 of 2011 and Ciuil Appeal ]Vo.l5 of 2009l B-ULING OF C.N.B. KITU This is a reference to a single judge from taxation ruling dated ?9tn 1u1u..n 20-l2by tl're Registrar who is the taxing officer of this Court. 30 The ground of the reference as contained in the applicant's letter dated 30t, March 2012is as follows: That the learned Registlar (lrred in law when he upheld the respondent's preliminary objection that he had no porver to tax the Advocate/Client bill of 35 costs. That in reaching the said decision the Registrar did not take into account the provisions of Articles 126 (2) 274,28 (1) 44 and 45 of thc Constitution. JOSLJT'II U. I}YAI}IUGISIIA I J.II. II}'A IIUGISITA ADYOC,TTEY 20 NTITIONAL SOCIAL SECUITITY IrUNI)::::::::::::::::::::::::i:i:::::::r::::: RIISI'ONDI'INT 25 I l0 20 25 30 (ia) i 'tourt, his Arlvocate/Clieut bill of cosl.s to bc taxccl by the Rcgistrar. I-{e filcd his bill by way of Noticc of Motio^ u.rrcr scctiorrs 55, 57 a.d 60 of trrc Arlvocatcs Act and scction 65(3) of varuc Acrcrccl rrrx Act, Rule l0 (l) of the Advocates (Renrurreral.ion and raxatior-r of Costs) Rules and order 52 Rule 1 and 3 of the Civil Procedure Rules. The following were grounds of the application as set out in the notice of motion. The respondent instructed the applicant to act on its betratf in Supreme Court Ciail Appeal No.7S of 2009 (National Social Seatrity Fund and W.H Sentooga t/a Ssetoogo afld partuers Vs- Alcon Intentational Ltd), (ii) Tlrc respotrdent paid to the applicant the sum of IIGX 233, 333fi3q/= on accorurt for hrstructiott fees ancl elisbrrsenrents pending the disposal of tlrc appeal. Tlrc applicant acted /or the resportdent, whiclr appeal is lrighly charged and contplex wlrcre the responrlent seeks to sct qside tlrc disnissal by the Court of Appeal of its appcal against the High Court's refirsal to set a side au arbitral awartl in the sum of USD 8,858,469.97 against it; The rcspottdent requested tlrc appricant to srtbnrit rris biil of costs in the said arbitratiort for its cortsitreratio, whicrr the appricant did in accordance with tlrc Ailaocates Act Cap. 267 orr 2,td lturc 2011. (i) l5 (iii) 3 (u) (ui) By its. lcttcr dntcr! 4th lrrly 20.1-1, tltc rcspottderttlailcd to giuc atty reasotnble considcratiotr antl itt tlrc applicartt,s le ttcr o/ luly 72, 2071 tlte applicaut /orwnrdtd ttrc bill rclatittg to tlte arbitratiotr zoith otlrcrs for paytilc,tt. Tlre respondett lms to date not paitl the biil oJ costs or any pctrt thereof. l0 l5 20 25 30 secondly, that the bilr of costs which was filed offended section s7e) @) of the Advocates Act in that it was signed by a raw firm inskucted to represent the applicant whereas the law requires that advocate who seeks costs. the bill be signed by the Thirdly, that the Registrar of the supreme Court has no powers to tax the Advocate/Client bilr of costs as such power is vested in the Regishar of the High Court under section g0 of the Advocates Act. In his ruling the Iearned Regishar overruled the first and second preriminary objections. Regarding the third preliminary objection the rearned Regiskar hetd that there was a lacuna in the supreme Court rures and in the law generary regarding the taxation of Advocate/Client bill of costs arising from supreme when the application came up for hearing before the Registrar, Counser for the respondent raised three preliminary objections. Firstly, that counsel of the appricant had quoted provisions of the Iaw which do not vest the Registrar with jurisdiction to tax the Advocate/Client bil of costs in this court. Consequentry the apprication based on such preadings was a nullity. Court appedls arrcl applicirlious. Hc helcl lhat thc rcmec{y wl-rich is availablc to an advocate to rccovcr rris Acrvocate/Cricnt biil of costs is to fire a suit for the recovery of costs. t0 The applica.t a.d the responcre.t were c-rissatisfied with tl.re ruling of the Regiskar. Hence this reference and cross reference to a singre judge of trris Court under Rule 106 (1) of trre Judicature (supreme Court Rules) Directions s113-11. During the hearing of this reference, the appricant was represented by the Iearned counsel Messrs Masembe-Ka nyerczi and Albert Byamugisha. Learned counser Mr. Andrew Kasirye represented the respondent. Counser agreed that the grounds of the reference wourd be argued first and the grounds of the cross-reference wourd be argued by counser for the respondent together with his reply to the submissions on the reference. In this ruling I sha, too handle the gtounds of the reference and the cross reference in a similar manner. Mr' Masembe-Kanyerezi for the appricant contended that the Ieamed Registrar of this court erred in law when he herd that he had no jurisdiction to tax the Advocate/crient bi[ of costs rerating to an appear in whicr-r the advocate acted in this court. s I5 20 25 30 5 Counsel argued that Articre lgz (2) of the Constitution provides that the appeals rie to the supreme Court from the decisions of the Court of Appeal as may be prescribed by Iaw. He contencled that the appear from which the current bi' of costs arises is such an appear. Additiona,y according to section 7 0f the Judicature Act, the supreme Court has powers of the High s Court and thai scctior.r 43 of thc'Jurlicature Act specifies who tlre officcrs of the Courts of Juclicaturc arc. TI.re Registrars arc incluclcr'l arnong such officers. He argued tliat by Rule 105(1) of the Supreme Court Rules, tl're Registrar of l0 this Court is designated as the taxing officer of this court and is empowered to tax party to party bill of costs. According to counsel the reading of this rule that it does not give the registrar powers to tax Advocate/Client bill of costs is wrong. In his view, if that was the intention, the rule would have included the word " only" . He contended that the provisions of Rule 109 (3) of 15 the Court of Appeal Rules should have been included in the rules of this court. Rule 109(3) of the Court of Appeal Rules state as follows: " The remutrcration of an adaocate by ll:,s or her client in respect of the oppeal or application shall be sabject to taxation in the High Court anil 20 shall be gooerned by the fliles a,td scales applicable to proceeilings in that court." He submitted that sub rule (3) of rule 109 of the Court of Appeal Rules was deliberately not included in rule 105 of the Rules of this court because there 25 was no intention to limit the jurisdiction of the Registrar of this court in taxation matters. Applicant's counsel relied on Article 126 of the Constitution which lays down the principles which courts must observe when exercising judicial 30 powers. He quoted Articles 21. and 28 of the Constitution on equal treatment and fair kial and urged that requiring the appellant to file a suit in order to 6 .5 'rccover his Aclvocatc,/CIicnt bill of costs arnouuts to cl iscrirnination ancl denial of fair trial and tlris would bc contrary l.o naturaljustice. In support of his submission he quoter{ the following passage wl.ricl.r was made by L<lrd Reid on natural justice ancl was also referrecl to irr Thc Constitution Law of India. l0 A Critical Commentary 4tt'Ed by H.M. Seeraai at p.7524. Lord Reirl made the following ilnportant obseroatiott as ot natural justice wltich has been quoted with approaal: 7 15 (a) Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all tlrc circumstances, ard I zoould be sorry to see this fwrdamental general principle ilegenerate into a series of haril anil fast rules. Eor a long time tlrc courts lmae, witlrori objection front Parliament, sttpplententeil 20 proceilure laid down in legislation where they haae found that to be necessary for tlis purpose, But before this unusual kind of power is exercised it must be clear that stafirtory procedure is inafficient to achiwe justice and to require adilitional steps would not lrustrate tlrc apparent purpose of the legislation,". 25 Applicant's counsel criticized the Registrar for holding in his ruling that the advocate,/ applicant's remedy was to file a suit to recover his costs. Counsel argued that according to section 60 (2) of the Advocates Act the taxed costs are final. Before the advocate files a suit for recovery of his costs he must get 30 a certificate of the taxed costs and then file a summary suit in court. 5 in support of his, subrnissiorrs hc rcfcrrcc{ to l(ibuka Musoke & Co. Advocates Vs Liquidator of African Textile Mill Ltd and Sharnra Vs Uhuru High Way Development Ltd [2001.|2 E.A 530. He further criticized thc. Registrar for holding that the relationship beLweerr l0 the advocate and client in the Supreme Court is contractual, therefore, the court has no powers to tax Advocate/Client bill of costs. Learned counscl submitted that by Rule 2(2) the court may use its inherent powers to prevent abuse of process. It was his view that inherent powers should be used by tl'ris court in the instant situation. l5 On that point counsel relied on Alcon Irternational Ltd Vs New Vision Printing and Publishing Co Ltil qnil the Editor in Chief New Vision and Sunilay Vision Ciail Application No. 4 of 201.0, where this court gave an interim order against a skanger to a suit. 20 It was counsel's contention tl-rat in view of his submission this court has jurisdiction, express, constitutional and inherent to tax party to party and Advocate/Client bill of costs. He prayed court to make an order directing Registrar to tax the applicant's Advocate/Client bill of costs. ,i In reply, counsel for the respondent supported the learned Registrar's holding that he had no jurisdiction to tax the Advocate/Client bill of costs. He submitted that jurisdiction has to be conferred on a court by law and can not just be inferred from the general provisions of the Constitution in Articles 30 28,44,45 and 1,26. He quoted the authority of Baku Raphael Obudra and another Vs A G. S.C. Constitutional Appeal No 15 of 2005. I ) He submittetl that thc inclusion of the wortl "only" irr rulc 105 (l) was not nc'cessary as that woulr.l Lrrir.rg trbsurclity irr tlrc rulcs. Rcgarding scctions 7 and 43 of thc Juclicaturc Act he arguccl that thosc provisions were consiclcrccl in Beatrice Kobusingye Vs Fiona Nyakana and another S.C. Civil Appcal l0 No 5 of 2004. He contented that the jurisdiction which the appellate court may exercise vide those sections is limited to the orders that can be made by the trial judge or magiskate and not the Registrar as a taxing officer. 9 Regarding the cross-reference counsel disagreed with the Registrar's holding 15 that there was a lacuna in the Iaw on the taxation of Advocate/Client bill of costs. He submitted that according to section 80 of the Advocates Act the Regiskar of the High Court has the jurisdiction to tax Advocate/Client bill of costs. It was his submission that section 80 of the Advocates Act must be read together with section 14 of the Judicature Act which gives unlimitcd 20 jurisdiction to the High Court. He argued that, however, the Registrar made an error of law to hold that there was a lacuna in the law with regard to taxation of the Advocate/Client bill of costs. In conclusion he contended that the reference had no merit and should be dismissed, but the cross-reference should be allowed. 25 In reply, Mr. Masembe Kanyerezi distinguished the authority Baku Raphael Obudra and Another Vs AG (supra) on the basis that there was no statutory provision allowing second appeals to the Supreme Court in election petitions. In the instant reference there is express legal provision by Rule 105 30 (1) of the Rules of this court which provides that the Registrar is the taxing officer. What the advocate gets as costs is laid down in the 3.d schedule item -r.9(4) of thc Rulcs of l.lris cotrrt. Courrscl subr.nittcd that thc aul.hority of - lleatrice Kobusingye Vs Fiona Nyakana (supra) is irrelevarrt to thc rlirtters in this rcfcrcnce. On the c ross-refcrcrrce hc disagrcetl with counscl's submissiorl tlrat thc bill of costs betvveen party and party should be taxcd by the Registrar of the l0 Supreme Court but the Advocate/Client Bill of Costs should be taxed by the Registrar of the High Court. He argued that in taxation matters the taxing officer uses a lot of discretion. In his view, it would be difficult for two different officers to reach identical decisions in taxation matters in the same case. This would lead to the undesirable result of the client benefiting from I5 costs. I have carefully listened to the submissions of counsel and perused the legal provisions and the authorities quoted. It is obvious to me that the main issue for determination in this reference is, whether the regiskar of this court has 20 powers to tax the Advocate/Client bill of costs. Rule 105 of the Rules of this court prooides: 25 30 Relying on that provision counsel for the applicant has strongly argued that though sub rule (1) of the rule refers to parry and party bill of costs that does (1) "The Registrar slmll be a taxhrg officer with powers to tax costs befiiteen party and party of or arisirtg out of any application or appeal to tlrc court, (2) Tlrc costs shell be taxed in according uith tlrc niles and scale set in the third scltedule to these Rules." l0 5. not excludc Advocatc/ Clierrt bill o[ cosl.s. His argumcrrt that if that was tlre intention tlre word " oriy" should lrave bccrr inclutlccl in tl.rc sub rulc (1 ). In rePly to that argunrcnt counsel for the respondent submittecl that including the word "only" in sub rule one would be absurd. However, he l0 did not elaborate on that point, I am of the considered view that if the word "only" was included it would not have made the provision absurd in any way. t5 20 I am inclined to accept the submission by the respondent's counsel that sub- rule (1) of rule 1"05 is exhaustive of the Registrar's powers regarding taxation. The Registrar has powers to tax party and palty bill of costs. The third schedule to the Rules provide guidance on how the Taxing Officer would tax the bill of costs. Item 16 of the schedule provides for costs where there has been change of advocates in the following terms. 1.) lf there has been a clunge of adaocate, the bill of costs o.f the first adztocate tua v be annexed to tlnt o f tlrc cr rrcut adaocate and tlrc total sltowrt as a disbtrsenrcnt. 2) The bilt shall be taxed in the ordinary zoa!fu tlrc amrent adaocate being heard on it, but the taxing olficer may reEire tlrc fitst adoocate to 2s attend. (Underlining mine) This provision gives powers to the taxing officer to tax the first advocate's bill of costs at the conclusion of the appeal together with that of the second advocate. The words used in item 16(1) state " the bill of costs of the first 30 adaocate anil the total sltowtt as disbursetnent'" This according to my understanding means disbursement to the party and not to the advocate. It ll 5 'r'locs trot, tl.rdrcforc; llleall applic.rnt has argued 15 )('l Arlvoctrtc/Clicnt bilt of costs as courrsel for thc Counsel for the applicant has relied on sections 7 and 43 of the Judicature Act for his argument that regiskars are officers of courts of judicature and are therefore, the Regiskar of this court has Powers to tax Advocate/client bill of costs since the supreme Court has Powers for the court of original jurisdiction. Section 43 of the ]udicature Act provides: (1)Tlrcreslmllbestrchofficersoftlrccourtsofjuilicatureasmaybe necessary for ttrc perfomnnce of any special duties in corurection witltthebusinessofthecourtsofjudicatwe,andxtclto|ficersslmll includethectiefregistrar,registrarsandassistantregistrars, (2)SubjecttoarticleT33oftlrcCottstittttio,Ltheofficersoftlrccolffi of iudicature s lmll per forut srclr drt ties as nrat lte ossl ed to thent wtder tlrc ntle s of court arul shall be stb iect to the 1e reral directiotr and stt oeratslor, o f the Chicf lustice. (llnderlining nine) 30 I apprcciate thc subnrission by thc respolrtlcut's counscl that jurisdiction of the court must be specifically provided by law and not inferrcd. In thc l0 reference before court there is legal provision which provides for the jurisdiction of the Registrar of this court as a taxing officer namely Rule 105 (1). This rule specifically provides for party to party bilt of costs and not Advocate/Client bill of costs. 25 t2 -',.' : .Subsection (2)clcarly statcs that tlrc officcrs pcrforrlr tlutics assigncd to tlrcm under tire rules o? this court. Currcntly Rulc'105(l) o.ly empowers the Registrar of this court to ttrx p'rarty to party bill of costs and the advocate/client bill of costs is not providccl for' l0 Section 7 of the Judicature Act provides: For the purpose of hearing attil detenniting an appeaL the St prenre Cotrt shall lmae all ttrc powerst authority atd iurisdiction aested uniler arry utritten lazp in the coutt [rom the exercise o/ the original iurisiliction of which the appeal originally emanqteiL t5 This refers to determination of an appeal and taxation of the bill of costs which is not determination of an appeal. It is a step taken after the appeal has been determined. I appreciate the submission by the respondent's counsel that Rule 105(1) of zo the Rules of this court stipulates that the Registrar is the taxing officer of this court with powers to tax party to parry bill of costs. By this very provision advocates/client bill of costs is excluded and if that was not the intention of the legislature the rule should have provided that the Registrar is the taxing officer of this court and stopped there. 25 It is right to give a restrictive interpretation to Rule 105 (1) of the Rules of this court. I accept the submission by applicant's counsel that this court has to observe the provisions of Articles 126 (2) (u), (e) 21 and 28 of the Constitution which provide principles which courts must follow when 30 administering justice, equal treatment and fair kial. This does not give powers to this court to read in into the rules what is not provided for. l3 ' 5 .'Accorc-lirrg to' thc rulcs of construction tlf sttrtutcs wlren tlre wortls otl a statutc arc clcar ottc t'tlust stick to tlrcir pltrilr nrcarnit'rg' IO l5 20 25 30 The passage by Lorrl Reid whichcottnsel for tlrc appellarrt has cluotecl whiclr statesthatforthePurPoseofnaturaljusticethecourtsmaysupplernerrt procedure rules, has the following limitation: ,,Brrt before this runtsual kind of power is exercised it nntst be clear that statutory procedure is instfficient to aclieoe iustice aill to require adilitional steps would not Itustrate the apparent Purpose of the legislation,". Iamoftheconsideredviewthatcounselisimploringthiscourttodoso because he is aware that there is no clear rule vesting the Registrar of this court with Powers to tax Advocate/Client bill of costs' Counsel for the applicant has urged this court to use inherent powers under Rule 2(2) and order the Registrar to tax the Advocate/Client' In the instant reference there are specific provisions of the law which give the Regiskar of the High Court power to tax Advocate/Client bill of costs and we do not have to resort to inherent Powers. Section 80 of the Advocates Act provides: ,,The taxing officer for tlrc taxatiott of bil]s uniter this Act slqll be tlrc rcgistrar ol a ciistrici or depttty regifralof -ttrc Higlt Court ot'.itr tlrc absence o7'o regirtrar, strch other oiJi"ri ot tn, Ct'it| Tustice nmy appoint; except that iir resfect of the taxation if costs between party and party-arisi.ng out of any corrtet4,iorri business broigltt in a court sitbordinate to the High Court, tlte lo*iirg officer slmll be a ctief ntagistrate of fi umgistrate grade 7 zoitlt iurisiiciiort hr the area wlrcre the suit was lrcatd"' (Underlining mine) 35 14 .',s..I would like to obscrve Lhirt thc Aclvocatc /Cliclrt bill o[ costs arc utrc{cr thc' Aclvocate's Act th'e lorrg titlc wl.rich reads: ,,,Attt,cttoattrcndattdcottsolitlatctltclaulrclalingtondzlocatcsttttdto tnake getteral prouisiotts |or P'UPoscs conttecte d zoitlt tltc lcgal profcssiott.,, l5 25 With due resPect I disagree. The Advocate Act and Rules made there under and the Rules of tl'ris court provide for the conduct of advocates who are 30 l5 The same Act provides in part (vi) how advocates costs may be taxed' According to Article 1,39 of the Constitution' the High Court has unlimited original Civil and Criminal jurisdiction' Taxation of costs is in my view original jurisdiction of the High Court' Counselfortherespondent,shascorrectlysubmittedthatjurisdictionofthe courtmustbespecificallyprovidedforbylawandnotinferred.Thiscourt exactly said that in Baku Raphael Obudra and another Vs Attorney General (Supra). There was no law allowing a second appeal from election petition from the Court of Appeal to the Supreme Court and it could not be inJerred' In this reference it is specifically provided that the Registrar is a taxing officer. He taxes the party to Party bill of costs' Regarding the cross reference, there is no lacuna in the law as who taxes the advocate's bill of costs in this court' It is my considered view that the learned Registrar erred in holding that in theSupremeCourtitherelationshipbetweenanadvocateandaclientis purely contractual. He held that, therefore' the advocate/client bill of costs should not come for taxation but should be agreed upon between them' 10 20 s :.,ificia[s o[ thc courts. 'fhey arc piricl lcntuttcratiolr for thcir work acr-'orc{ ilrg - to laid c{owrr scalcs. Whcn they wish to corrtrtrct ouI oI tl.r<lsc scalcs Lhcy lravc to follow ccrtain proccclures in nrakir.rg such colttrttcl.s othclwisc such agreernellts arc illegal, null anc{ voic1. Scc l(ituma Magala & Co Advocatcs Vs Celtel (U) Ltd S.C. Civil Appeal No 9 of 2010. l0 I, therefore, hold that the Registrar of this court has no Powers to tax tlre Advocate/Client bill of costs. That power is vested in the Registrar of the High Court. 15 In the result the reference fails and the cross reference succeeds with costs to the respondent. Datcd at l(anrpala this glsf day of 20L2 20 c.Nl#tir?frm!* JUSTICE OF THE SUPREME COURT l6