Kituuma Magala & Co. Advocates v Celtel (U) Ltd [2011] UGSC 21 (17 August 2011)

# Kituuma Magala & Co. 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Advocates v Celtel (U) Ltd [2011] UGSC 21 (17 August 2011) Copy Media Neutral Citation [2011] UGSC 21 Copy Court [Supreme Court of Uganda](/en/judgments/UGSC/) Judges [Katureebe, JSC](/en/judgments/all/?judges=Katureebe%2C%20JSC), [Odoki, CJ](/en/judgments/all/?judges=Odoki%2C%20CJ), [Kitumba, JSC](/en/judgments/all/?judges=Kitumba%2C%20JSC), [Kisaakye, JSC](/en/judgments/all/?judges=Kisaakye%2C%20JSC), [Tsekooko, JSC](/en/judgments/all/?judges=Tsekooko%2C%20JSC) Judgment date 17 August 2011 Language English Summary An appeal from a taxing officer is not a s.6(2) third appeal; an unenforceable advocates’ fee agreement cannot be severed to claim ordinary fees. ###### Flynote * Civil Procedure — Appeals — Appeal from Taxing Officer to High Court — Not a s.6(2) third appeal * Advocates Act — Fee Agreements — Enforceability under sections 48, 50 and 51 * Contract Law — Severance — Whether post‑agreement letters can be severed from unenforceable statutory fee agreement Read full summary __ ##### Ask AI Ask questions and understand this document faster using AI. __Ask AI * * * Skip to document content **HELIC OF UGANDA** **REPBLIC OF UGANDA** **IN THE SUPREME COURT OF UGANDA AT KAMPALA** **(CORAM: ODOKI, CJ., TSEKOOKO, KATUREEBE, TUMWSIGY****E,****AN D KISAAKYE,****JJSC).** **CIVIL APPEAL** NO. 09 **OF 201****0** **KITUUMA MAGALA & CO. ADVOCATES ::::::::::::::::::::::APPELLANT** **AND** **CELTEL (U) LTD :::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT** **C** _[Appeal from the judgment and orders of the Court of Appeal (Mukasa-Kikonyogo, D_ _CJ, T_ _winomujuni, and Kitumba_ _,__)JJA) in Civil Appeal No._ 39 _of_ 2003 _dated 18_ _th_ _August 200S_ _]._ _**JUDGMENT OF KATUREEBE, ]SC.**_ “The appellant; a law firm, signed a Debt Collection Agreement with the respondent to collect monies owed to the respondent. Terms for the remuneration of the appellant were duly stipulated in that agreement. In respect of some clients, the appellant filed civil suits to recover the money. The agreement was then terminated before any recoveries had been made in respect of those suits. The appellant filed a Client! Advocate Bill of costs for taxation. The taxing officer rejected it on grounds that the matter was governed by the debt collection agreement and not by the ordinary rules regulating the remuneration of Advocates. Dissatisfied with that decision, the appellant appealed to a Judge of the High Court. The Judge, Tinyinondi, _J,_ dismissed the appeal on grounds that the matter was supposed to be governed by the debt collection agreement but which agreement had not complied with the provisions of sections 48, 50 and 51 of [the Advocates Act](/akn/ug/act/1970/22) and was therefore unenforceable. The appellant then appealed to the Court of Appeal which confirmed the decision of the High Court and dismissed the appeal, holding further that the appellant could not seek to have his remuneration under the Remuneration of Advocates Rules when he had signed an agreement which set out the terms of his remuneration. Hence this appeal. In this Court, the appellant filed only one ground of appeal namely: _"The learned Justices of Appeal erred in law and in f_ _act in_ _holding that the appellant entered into an illegal co_ _ntract_ _and that accordingly there was no basis for the appell_ _ant to_ _demand that the taxing master taxes the appellant's fe_ _es for_ _handling High Court Civil Suits No 5.140 of1997,_ 41 _of_ _1999_ _and_ 44 _of1999._ Both parties filed written submissions, _M/s KWESIGABO, BAMW_ _INE & __WALUBIRI,_ Advocates filing on behalf of the appellant, and _M/__s LEX U_ _GANDA ADVOCATES_ filing reply on behalf of the respondent. In their written reply, counsel for the respondent raised a preliminary point of law, namely, that the appeal now in the Supreme Court was a third appeal which required a special certificate of general importance under section 6(2) of the Judicature Act and Rule 39 of the Supreme Court Rules. Counsel contended therefore that in the absence of such certificate the appeal was incompetent and ought to be struck out. In support of his argument, counsel cited the decisions of this court in _NAMUDDU_ \- _Vs­_ _UGANDA (2004)2 EA 207 and J. B CHEMICALS_ & _PHARMACEUTICALS_ _-Vs­_ _GLAXD GROUP LTD (2007)_ 2 _EA 191_ _._ At the hearing, Mr. Walubiri for the appellant applied to respond to the above point orally since he had had no notice of it before filing the written submissions. We allowed him. Mr. Walubiri argued that section 6(2) of the Judicature Act relates to appeals that originated in a Magistrate's Court and went to the High Court on appeal and the decision of the High Court was made in exercise of its appellate jurisdiction. If an appeal were to go to the Court of Appeal it would be a second appeal. To proceed to the Supreme Court, it would be a third appeal requiring a special certificate of the Court of Appeal that the matter was of a matter of law of great public importance. However, he argued, the matter before the court was different. The taxing officer was not a Magistrate's court and therefore the use of the word “appeal" in 'section 62 of [the Advocates Act](/akn/ug/act/1970/22) cannot be used in the same way as an appeal envisaged under section 6(2) of the Judicature Act. Counsel argued that an appeal against a decision of the taxing officer to a Judge of the High Court was analogous to appeals made to the High Court from decisions of Administrative or quasi judicial bodies as may be provided for by specific statutes. These have been held not to be "appeals" in the strict judicial sense but more as reference. In support of his submissions, counsel cited the cases of _MAKULA INTERNATI_ _ONAL_ _L_ _IMITED_ \- _Vs- HIS EMINENCE CARDINAL NSUBUGA_ & _ANOTHER_ _,_ C. _A._ C. _A. NO_ _.__4 OF_ 1981 and _MANSUKHALAL KARIA AND ANOTHER_ \- _Vs- ATTO_ _RNEY GE_ _NERAL_ & 2 _OTHERS_ _,__S.C.C.A. NO 20 OF 2002._ The question that we have to answer is whether an appeal to a judge of the High Court against a taxing officer's decision is an appeal within the terms of section 6(2) of the Judicature Act and Rule 39 of the Supreme Court Rules. Perhaps the two provisions should be set out right from the start for ease of reference. Section 6(2) of the Judicature Act states: _"(2) Where an appeal emanates from a judgment_ or _order_ _of a chief magistrate_ or _a magistrate grade_ 1 _in the exe_ _rcise_ _of his_ or _her original jurisdictions but not includin_ _g an_ _interlocutory matter a party aggrieved may lodge a_ _third_ _appeal to the Supreme Court on the certificate of the_ _Court_ _of Appeal that the appeal concerns a matter of law of_ _great_ _public_ or _general importance_ or _if the Supreme_ _Court_ _considers in its overall duty to see that justice_ is _done_ _that_ _the appeal should be heard.”_ Rule 39 of the Supreme Court rules lays down the procedure for applying for the special certificate. It appears clear to me, and I agree with Mr. Walubiri, that section 6(2) is concerned with appeals emanating from judgments or orders of chief magistrates or magistrates grade one which then go to the High Court as first appeals, to the Court of Appeal as second appeals, and would go to the Supreme Court as third appeal only where a certificate of importance has been applied for and obtained as per Rule 39. Would one regard a taxing officer in the High Court as a chief magistrate or magistrate grade one. My answer is no. The attempted taxation arose out of matters filed in the High Court as civil suits to recover debts. Normally, costs are awarded by the Court hearing the case and then taxed by the taxing officer who is normally a Registrar and an officer of that court. I do not see how costs in the High Court could be taxed in a magistrate's court. Indeed the application before the taxing officer was referenced as _High Co_ _urt Miscellaneous Application_ No. 135 of 2001. It was High Court matter before a taxing officer of that court. 43 (1) _"There shall be such officers of the courts of judicatu_ _re as_ _may be necessary for the performance of any special_ _duties_ _in connection with the business of the courts of judic_ _ature,__and such officers shall include the chief registrar, regis_ _trars,__deputy registrars and assistant registrars"_ (2) _Subject to article_ 133 _of[the Constitution](/akn/ug/act/statute/1995/constitution), the officers __of the_ _Courts of judicature shall perform such duties as m_ _ay be_ _assigned to them under the rules of court and sh_ _all be_ _subject to the general direction and supervisions of th_ _e Chief_ _Justice."_ In my view, taxation of costs is one of the special duties in connection with the business of the High Court, as in this case, that a Registrar is required to perform as a taxing officer. The taxing officer is not a chief magistrate or magistrate grade one so as to be brought under the ambit of section 6(2) of the Judicature Act. In my view, a similar situation would arise under Order XLVIII Rule 7 and Order L Rule 8 of the Civil Procedure Rules. Those situations cannot be brought under section 6(2) of the Judicature Act. Under Article 139 of [the Constitution](/akn/ug/act/statute/1995/constitution), the jurisdiction of the High Court is spelt out. **It** has _**"unlimited original jurisdiction**_**in** _**all matters and**_ _**su**_ _**c**_ _**h a**_ _**ppellate**_ __**and other jurisdiction**__ _**as may be conferred**_**on** _**it by**_ _**th**_ _**i**_ _**s Co**_ _**nstitution or other law."**_ 139 (2) states:- _**"Subject to the provisions of this Constitution and any**_ _**oth**_ _**e**_ _**r**_ _**law, the decisions of any court lower than the High**_ _**Court**_ _**shall be appealable to the High Court."**_ **It** appears to me that even [the Constitution](/akn/ug/act/statute/1995/constitution) is making a distinction between appellate jurisdiction over matters arising from lower courts, and other jurisdiction conferred by law. **In** my view, the use of the word "appeal" in Section [62(1)](/akn/ug/act/1970/22/~part_VII__sec_62__subsec_1) of [the Advocates Act](/akn/ug/act/1970/22) is analogous to the use of the same word in other statutes where provision is made for appeals to the High Court against decisions of administrative or quasi judicial authorities. This Court has held in a number of cases that such appeals are not "appeals" in the judicial sense as would be envisaged by section 6(2) of the Judicature Act. **In** the _**MANSUKHLAL KARIA**_ case (supra) this Court considered at length whether an appeal against a decision of the Minister to the High Court was a first appeal so as to regard a subsequent appeal to the Court of Appeal as a second appeal and an appeal to the Supreme Court as a third appeal. The Court held that the appeal against the Minister's decision under section 15 of [the Expropriated Properties Act](/akn/ug/act/1982/9) did not amount to a judicial appeal and did not take away the original jurisdiction of the High Court. After extensively analysing the various legal definitions of the word "appeal", Tsekooko, JSC stated (at page 16 and 17 of his judgment): _**"These meanings tend to support the view that a jud**_ _**icial**_ _**appeal is not the one intended in section**_**15** _**because o**_ _**f the**_ _**expression "appeal to the High Court" I thi**_ _**nk it**_ _**would be a misnomer to describe a suit instituted u**_ _**nder**_ _**section**_**15** _**to challenge the Minister's rejection o**_ _**f an**_ _**application for repossession as an ordinary judicial app**_ _**eal**_ _**.**__**"**_ Likewise, I think it would be a misnom.er to regard an appeal against the decision of a taxing officer of the High Court to a judge of the High Court as an appeal envisaged under section 6(2) of the Judicature Act. **In** my view, the High Court would be exercising "other jurisdiction" conferred by [the Advocates Act](/akn/ug/act/1970/22), but not appellate jurisdiction over a decision of a lower court as envisaged by Article 1390f [the Constitution](/akn/ug/act/statute/1995/constitution) and section 6(2) of the Judicature Act. The decision of the Judge of the High Court in this matter was therefore the first judicially appealable decision, and the matter is properly before this court as a second appeal. I would therefore reject the preliminary point raised by the respondent. This brings me to the substantive sole ground of appeal which I have already set out above. Arguing on this ground, counsel for the appellant contended that the Debt Collection Agreement consisted of two parts Le one part consisted of the instructions to the appellant to recover money from debtors, and the other part was concerned with the remuneration for those services. Counsel argued that even if the part of the agreement concerning remuneration was found to be null and void, that part ought to have been severed from the rest so that the appellant could still recover his fees under the normal regulations governing the remuneration of Advocates. Failure to do so, he argued, would lead to an injustice on the Advocate who would have performed his duties as per instructions. Counsel cited the case of _M_ _ARIES -__Vs- PHILIP TRANT_ & _SONS LTD MACKNNON, THIRD PARTY IQ_ _B 29_ where the cause of action was severed from that part of the contract where the other party had not performed a statutory requirement of providing the prescribed particulars, and it _was_ held that the other party could still recover their particular loss arising out of the contract. To counsel, the illegality in the instant case was in the provisions regarding remuneration, and this did not destroy the cause of action which was based on a contract for the provision of legal services. Therefore, that cause of action would survive and the appellant would be entitled to recover fees for services rendered not under the illegal agreement but under the ordinary remuneration of advocates rules .. Counsel also sought to rely on _PANDIT -Vs- SEKATAWA [1964J EA_ 491 where the rationale for sections [48](/akn/ug/act/1970/22/~part_VII__sec_48), [50](/akn/ug/act/1970/22/~part_VII__sec_50) and [51](/akn/ug/act/1970/22/~part_VII__sec_51) of [the Advocates Act](/akn/ug/act/1970/22) was expounded upon. Counsel also sought to rely, strangely in my view, on the case of _SAROJ GANDESHA -Vs- TRANSLOAD LTD_(Supreme Court Civil Appeal No.13 of 2009), where this Court upheld payments made to an Advocate under a consent judgment. In answer to the above arguments counsel for the appellant fully supported the judgment and decision of the Court of Appeal. They argued that the Court of Appeal did not rule that Advocates cannot enter into debt collection agreements nor that such agreement was for an illegal purpose. What the Court of Appeal had decided, upholding the decision of the High Court, was that any agreement made under sections 48 and 50 of [the Advocates Act](/akn/ug/act/1970/22) had to comply with the provisions of section 51 of that Act. Where the agreement failed to comply with any of those provisions, it was not enforceable and it was in fact an offence for any advocate to seek to gain any benefit under that agreement. Counsel further contended that in fact the appellant's counsel had in the High Court conceded that the Debt Collection Agreement was illegal, but had instead sought to rely on twp ' letters written after the signing of the Debt Collection Agreement which counsel claimed constituted instructions to file legal proceedings, separate from the Debt Collection Agreement. Counsel supported the finding of the Court of Appeal that the two letters were in fact part and parcel of the Debt Collection Agreement which itself was illegal for non-compliance with the provisions of the law. Counsel further pointed out that in fact the appellant had received payments of his commission as stipulated in the Debt Collection Agreement. Counsel submitted that the appeal had no merit and should be dismissed with costs in this Court and the Courts below. The gist of the ground of appeal, as I understand it, is in two parts, the first is that the Court of Appeal was in error to hold that the appellant entered into an illegal contract. The second part is that the court was in error to hold that there was consequently no legal basis for the appellant's demand for taxation of his fees. The question that comes to mind is whether this ground really arises from matters that were before, and decided on, by the Court of Appeal. To answer that I think it is useful for ease of reference to set out the grounds of appeal in the Court of Appeal. These were as follows:- _"1. The learned trial judge erred in law and in_ _fact in_ _finding that the letters of_ 3/11/1997 _and 17/3_ _/1998_ _did not constitute a separate agreement fro_ _m the_ _agreement of 3/11/1997._ _2\. The learned trial judge erred in law and in_ _fact in_ _failing to find and hold that there was evidenc_ _e that_ _the appellants were outside the agreeme_ _nt of_ _'__3/11/1997 duly instructed by the respondents t_ _o file_ _High Court Civil Suits No. 140 of_ 1997,41 _of_ 1999 _and_ _440f1999._ _3\. The learned trial Judge erred in law to hol_ _d that_ _there was no basis for the appellant to deman_ _d that_ _the Taxing Master taxes the appellant's_ _now_ _appellant's fees for handling High Court Civil Su_ _it Nos.__140/97,41/99, and 44/99."_ The Court of Appeal, decided, correctly in my view, to deal with grounds 1 and 2 together as they overlap. Clearly, counsel for the appellant sought to sever the Debt Collection Agreement from the letters which were written further to it. Counsel sought to treat these letters as constituting instructions to sue separate from the Debt Collection Agreement. In the lead judgment of Kitumba, JA (as she then was) the court minutely set out and examined the language of both the Debt Collection Agreement and the letters in question and, quite correctly in my view, reached the conclusion that the letters were part and parcel of the agreement. The learned Justice of Appeal put it thus:- _"A perusal of the_ two _letters clearly shows that they_ _were_ _part and parcel of the debt collection agreement.__The_ _appellant was free to use whichever means of debt co_ _l_ _l_ _ection_ _it deemed fit, whether to file civil suits or employ_ _other_ _means to recover the respondent's debts. Thus clause_ 2 _of_ _the agreement of3/11/1997 provides_ _"2_ _.__The AGENT_ __shall use his best__ _efforts to collect what_ _ever_ _debts he may be instructed to receive and shall endeavou_ _r to_ _collect them within a period of_ 8 _weeks." (underlining m_ _ine)._ _The appellant's argument that the affidavits by_ _the_ _respondent's credit controller Kuluo constit_ _uted_ _instructions to sue is not tenable. I agree with the ruli_ _ng of_ _the learned judge that the letters of_ 3/11/1997 _and_ 17/3/1998 _were not separate agreements to_ _sue. The_ _debt_ _collection agreement and the letters did not comply with_ _the_ _provisions of section_ 51 _of[the Advocates Act](/akn/ug/act/1970/22) and __are,__therefore, illegal and unenforceable. "_ I fully concur with this finding. The debt collection agreement is signed between parties and provides in clause 1 thereof that: _"CELTEL_ __shall from time to time__ _furnish the AGENT with t_ _he_ _particulars of debtors and the amount due."_(emphasis added). If CELTEL then subsequently writes a letter furnishing .the agent with the particulars of debtors and the amounts due, I fail to see how counsel can argue that that letter is not part of the agreement. Likewise, a letter subsequently written which states: _"Further to the Debt Collec_ _tion_ _A_ _greement. attached, please find the revised schedule_ _s of_ _t_ _he procedures to be followed in the course of your debt recov_ _ery_ _e_ _xercise on our behalf "_ must clearly be part and parcel of the earlier agreement between the parties. I agree with counsel for the respondent that the Court of Appeal did not decide that the parties had entered into an illegal agreement or that the agreement was for an illegal purpose. The appellant was free in terms of section 48 and 50 of [the Advocates Act](/akn/ug/act/1970/22) to enter into the agreement with the respondent. But the law, section 51, required that such agreement comply with certain conditions or else by law it is unenforceable. Indeed, both in the High Court and in the Court of Appeal counsel for the appellant conceded that the agreement was not enforceable for its failure to comply with section 51. That is what made it an illegal agreement. Strangely, it was counsel for the respondent who argued that the agreement had been notarized and was enforceable. The only point of departure was whether ~ ,- the two letters were part of the agreement. In my considered view, the Court of Appeal did not err in law or fact to hold that the Debt Collection Agreement did not comply with section 51 and was therefore illegal and unenforceable. I find no merit in the first part of the ground of appeal. The second part is a logical consequence on the above finding. The appellant has sought to base his claim to taxation on the assumption that the two letters constituted separate instructions. I have already stated that I agree with the Court of Appeal that they did not. They were simply part and parcel of the agreement. Counsel then brought up the argument about severance, i.e., that the illegal part of the agreement regarding remuneration be severed from the part dealing with instructions to sue. Counsel for the appellant argued that the agreement is severable so that the part dealing with remuneration is deemed unenforceable while the part giving instructions is saved. As pointed out earlier. Counsel sought to rely on _**MARLES**_ _-V-__**PHILIP TRANT**_**& **_**SONS LTD. MACKINNON, THIRD PA**_ _**RTY**_ (supra). With respect, I think that case is distinguishable from the case before us. To begin with, that case was concerned with merchants supplying seed to dealers and farmers. The instant case is dealing with regulation of specific agreements by a specialized group of professionals, Le. Advocates. Secondly, that case was concerned with the rights of a third party to recover damages. The instant case deals with payment of professional fees to an Advocate who is a party to the agreement. Thirdly, the Court found that the contract in that case was illegal in its performance. In the instant case, it is the statute which itself renders the whole contract ' ." unenforceable if it did not comply with the conditions set forth in section 51 of the Act. Thus section 51 (2) is very clear: _"An agreement under section_ 48 or _50 shall not_ _be_ _enforceable if_ __any__ _of the requirements of sub-sectio_ _n (l)__have not been satisfied in relation to the agreement,__and_ _any advocate who obtains_ or _seeks to obtain any be_ _nefit_ _under any agreement which is unenforceable by virtu_ _e of_ _the provisions of this section shall be guilty of professi_ _onal_ _misconduct_ _.__“_ It is to be noted that, the appellant did acknowledge receipt of some payments under the agreement but turned around to argue that, that money should be taken as deposits and be deducted during taxation. I wonder whether that in itself does not amount to obtaining a benefit under an unenforceable agreement, contrary to section 51 (2) of the Advocate Act. In _ANDERSON_ \- _Vs- DANIEL_[1924] _I KB [cited in CHITTY ON CONTR_ _ACTS P._ 858 - 859] the Court considered those agreements where the statute prohibits certain agreements and provides for the punishing of one party. The Court stated: _"When the policy of the Act in question is to protec_ _t the_ _general public_ or _class of persons by requiring th_ _at_ a _contract shall be accompanied by certain formalitie_ _s_ or _conditions, and_ a _penalty_ is _imposed on the person omi_ _tting_ _those formalities_ or _conditions,___the contract and__ __its__ _performance without those formalities_ or _condition_ _s_ is _illegal, and cannot be sued upon by the person liable t_ _o the_ _penalties. "_ Indeed, the _MARLES_ case (supra) would be authority for-the proposition that the innocent party would not be deprived of his civil remedies for the criminal default of the guilty party. That is why the court held that the third party could recover damages. As Singleton L.}, put it; _"The_ _third p_ _arty had nothing to_ do _with the contract between the plaintiff an_ _d the d_ _efendants." (P._ 35 _of the judgment)._ In my view, the _PANDIT_ case (supra) is more relevant to this case in so far as it seeks to explain the rationale for the strict provisions of [the Advocates Act](/akn/ug/act/1970/22). Having explained why it was necessary for the agreement for remuneration to be in writing, Sir Udo Udoma, _CJ,_ went on to state as follows (at P. 497): _"The situation, I think, might be different if it was_ a _c_ _lient_ _who had brought this action seeking to enforce_ _the_ _agreement_ as _against the advocate. In that case, it wou_ _ld be_ _the duty of this court to hold the advocate to his agree_ _ment_ _for then the client would not be seeking to derive any be_ _nefit_ _from such an agreement_ _.__It seems to me that what se_ _ction_ _55 has done is to prescribe the formality which mus_ _t be_ _complied with by an advocate, who has conclude_ _d an_ _agreement with his client_ as _to his professi_ _onal_ _remuneration, if such an agreement is to be enforced by_ _the_ _court as against his client. And section_ 56 (2) _prohibit_ _s the_ _bringing of any action for the enforcement of such_ _an_ _agreement, which means in fact that any action brough_ _t for_ _the purpose of enforcing such an agreement woul_ _d be_ _misconceived in law, having regard to the special proce_ _dure_ _prescribed for that purpose under Section_ 56 (2) _of_ _the_ _ordinance. The protection is for the client and not fo_ _r the_ _advocate. "_ As in this case where the appellant is seeking, in the alternative, to argue that the contract be severed so that the part for remuneration is now governed by the Advocates Remuneration Rules, in the _PANDIT_ case the advocate/plaintiff sought in the alternative to rely on the Indian Contract Act, 1972. The learned Chief Justice dealt with that argument thus (P. 499): _"In my view, the claim of the plaintiff in the alternat_ _ive is_ _not maintainable, because to hold otherwise for the rea_ _sons_ _given above would be contrary to public policy.__The_ _agreement, the subject matter of this suit not having_ _been_ _made in writing, violently contravenes the Advo_ _cates_ _Ordinance No._ 19 _of_ 1956, __which regulates the relatio__ __nship__ __between advocates and their clients in this court__ __.____The__ __purpose of the Advocates Ordinance is to regulate__ __such__ __relationship and to bring an advocate within the co__ __ntrol,____jurisdiction and embrace__ _of_ __this court__ __.____It woul__ __d be__ _.__v ••._ __dangerous in the extreme to side-track the sp__ __ecial__ __provisions of the Advocate Ordinance, which reg__ __ulate__ __agreements between advocates as officers of this cour__ __t and__ __their clients__ _. In my view, to accept the contention_ _of the_ _plaintiff that the Indian Contracts Act,_ 1972, _applies_ _to the_ _agreement between him and the first defendant would_ _be to_ _open a flood-gate to advocates to appear in court a_ _nd act_ _without any retainer and without instructions from litig_ _ants_ _in the hope that whether the client accepted their service_ _s_ or _not, the court would always enforce their claims_ _for_ _professional fees under the Indian Contract Act_ _.__The re_ _sult_ _may be disastrous."_(emphasis added). In the instant case, the agreement was in writing but failed to satisfy the condition in section 51 (1) (b) and (c). The advocate had the option of stipulating that his fees would be governed by the Advocates Remuneration and Taxation of Costs Rules. He did not exercise that option. He opted to accept remuneration as stipulated in the Debt Collection Agreement. The client accepted his services on the basis of that agreement. It would be contrary to the letter and spirit of the Act, and indeed against public policy, were the court to allow the Advocate to walk away from the clear provisions of the Act and seek refuge in the Advocates Remuneration Rules, which he had not opted for in the first place. The agreement was for provision of legal services for which remuneration was stipulated. The argument that somehow this can be severed is, in my view, not tenable, especially coming from the advocate who should have known better, and for whom the provisions of the Act were meant. Counsel for the appellant then sought to rely on the GANDESHA case. I have failed to appreciate how that case helps the appellant. That case was based on a judgment of the court, albeit a consent judgment referred to as the Consent Variation Order, which provided for certain payments, to several persons including the advocates. Although argument was made that the agreement between the parties leading to the consent judgment may have amounted to champerty, no attempt had been made whatsoever to set aside that judgment. In that case I stated at P.21 of my judgment: _Th_ _e application by the respondent in the High Court was base_ _d on m_ _oney paid under that order. If the respondent formed the view_ _that th_ _e terms of the order were based on an illegal or fraud_ _ulent a_ _greement or practice, then it should have applied to the High Co_ _urt to h_ _ave the Consent Variation Order set aside."_ The present case is not concerned about any judgment. In my view, the two cases are distinct. In the result, I am of the view that there is no merit in this appeal and it ought to be dismissed with costs in this court and in the Courts below. Dated at Kampala this 17th day of _August_ _ 2011, Bart M. Katureebe JUSTICE OF THE SUPREME COURT **THE REPUBLIC OF UGANDA** **IN THE SUPREME COURT OF UGANDA AT KAMPALA** **(CORAM: ODOKI, C.J., TSEKOOKO, KATUREEBE, TUMWESIG****YE,****KISAAKYE, JJ.S.C.)** CIVIL APPEAL NO. 09 OF 2010 BETWEEN KITUUMA MAGALA & CO. ADVOCATES:::::::::::::::::::::::APPELLANT AND CELTEL (U) LTD ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT _[Appeal from the judgment and orders of the Court of Appeal_ at _Kampala (Mukasa-Kik_ _onyogo,__DCJ., Twinomujuni, and Kitumba, JJ.A) in Civil Appeal No._ 39 _of 2003 dated 18_ _th_ _August_ _2005]_ _JUDGMENT OF ODOKI, CJ_ I have had the benefit of reading in draft the judgment prepared by my learned brother, Katureebe, JSC, and I agree with him this appeal should be dismissed with costs in this Court and Courts below. As the other members of the Court also agree, this appeal is dismissed with the orders as proposed by the learned Justice of the Supreme Court. Kampala this ... 17th.... day of .August.... .. 2011. B J Odoki **CHIEF JUSTICE** **THEREPUBUCOFUGANDA** **IN THE SUPREME COURT OF UGANDA** AT KAMPALA **[Coram: Odoki, CJ., Tsekooko, Katureebe, Tumwesigye & Kisaakye, JJSC]** _Civil AppealNo.09 of 2010_ _BETWEEN_ KITUUMA MAGALA & CO. ADVOCATES .....APPELLANT CELTEL UGANDA LTD………………………………RESPONDENT _{Ap_ _p_ _e_ _al from the Judgment of the Court of Appeal at Kampala (Mukasa_ \- _Kikon_ _y_ _ogo_ _,__DCJ.__,__T_ _w_ _inomuju_ _ni a_ _nd_ _Kit_ _umba_ _,__JJA) dated_ _O1st_ _August_ _,__2005 in Civil Appeal No. 390f2003}_ _**J**_ _**UDGMENT OF TSEKOOKO, JSC**_ I have read in draft the judgment of my learned brother the Hon. Mr. Justice BM Katureebe, JSC., which he has just delivered. I agree with his reasoning and conclusions. I also agree that the appeal be dismissed with costs to the respondent here and in the Courts below. Delivered at Kampala this 17th day of August 2011 JWN Tsekooko Justice of the Supreme Court THE REPUBLIC OF UGANDA IN THE SUPREME COURT OF UGANDA AT KAMPALA [CORAM: ODOKI, CJ., TSEKOOKO, KATUREEBE, TUMWESIGYE, AND KISAAKYE, JJ.SC] KITUUMA MAGALA & CO. ADVOCATES:::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT AND CELTEL (U) LTD:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT [Appeal from the judgment and orders of the Court 0 Appeal at Kampala (Mukasa­Kikonyogo DCI, Twinomujuni and Kitumba, _JJ.A)_ in Civil Appeal No. 39 of 2003 dated 18th August, 2005] JUDGMENT OF TUMWESIGYE, JSC I have had the opportunity to read the draft judgment prepared by my learned brother, Hon. Justice Katureebe, JSC. I agree with the judgment and the orders he has proposed. Dated at Kampala this 17th day of August 201l. JOTHAM TUMWESIGYE JUSTICE OF THE SUPREME COURT _THE REPUBLIC OF UGANDA_ _IN THE SUPREME COURT OF UGANDA AT KAMPALA_ _(CORAM: ODOKI, C.J., TSEKOOKO, KUTUREEBE, TUMWE_ _SIGYE_ _,__KISAAKYE, JJ.S.C.)_ _CIVIL APPEAL NO. 09 OF 2010_ _BETWEEN_ _KITUUMA MAGALA & CO. ADVOCATES::::::::::::::::::::::::::::::::::::::::APPELLANT_ _AND_ _CELTEL (U) LTD:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT_ _[Appe_ _al from the judgment and orders of the Court of Appeal (Mukasa­_ _Kiko_ _nyogo, DCJ_ _.__, Twinomujuni and Kitumba, JJ.A) in Civil Appeal No_ _._ 39 _of 200_ _3 dated_ _18th_ _August 2005]_ __**JUDGMENT OF DR. E. KISAAKYE, JSC**__ I concur with him that this appeal has no merit and that it should be dismissed with costs in this court and the courts below. Dated at Kampala this 17th day of August 201l. DR. ESTHER M. KISAAKYE JUSTICE OF THE SUPREME COURT #### __Related documents #### More documents like this one ▲ To the top >