Attorney General v Tumushabe (Taxation Reference 1 of 2009) [2009] UGSC 34 (21 April 2009)

# Attorney General v Tumushabe (Taxation Reference 1 of 2009) [2009] UGSC 34 (21 April 2009) [ Share this document on WhatsApp opens in new tab __](https://api.whatsapp.com/send?text=Attorney+General+v+Tumushabe+%28Taxation+Reference+1+of+2009%29+%5B2009%5D+UGSC+34+%2821+April+2009%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2009%2F34%2Feng%402009-04-21) [ Share this document on X opens in new tab __](https://twitter.com/intent/tweet?text=Attorney+General+v+Tumushabe+%28Taxation+Reference+1+of+2009%29+%5B2009%5D+UGSC+34+%2821+April+2009%29+-+https%3A%2F%2Fulii.org%2Fen%2Fakn%2Fug%2Fjudgment%2Fugsc%2F2009%2F34%2Feng%402009-04-21) [ Share this document on Facebook opens in new tab __](https://www.facebook.com/sharer/sharer.php?u=https://ulii.org/en/akn/ug/judgment/ugsc/2009/34/eng@2009-04-21) [ Share this document on LinkedIn opens in new tab __](https://www.linkedin.com/sharing/share-offsite/?url=https://ulii.org/en/akn/ug/judgment/ugsc/2009/34/eng@2009-04-21) [ Share this document by email __](mailto:?subject=Take%20a%20look%20at%20this%20document%20from%20ULII:%20Attorney%20General%20v%20Tumushabe%20\(Taxation%20Reference%201%20%E2%80%A6&body=https://ulii.org/en/akn/ug/judgment/ugsc/2009/34/eng@2009-04-21) [ Download DOC (54.0 KB) ](/en/akn/ug/judgment/ugsc/2009/34/eng@2009-04-21/source) Toggle dropdown * [Download PDF](/en/akn/ug/judgment/ugsc/2009/34/eng@2009-04-21/source.pdf) Report a problem ##### Is there something wrong with this document? Problem category *Incorrect informationMissing informationNo PDF downloadDocument is emptyDocument is not accessible on my deviceOther What's the problem? * Your email address * CancelReport problem __ * Share * [ Download DOC (54.0 KB) ](/en/akn/ug/judgment/ugsc/2009/34/eng@2009-04-21/source) * [Download PDF](/en/akn/ug/judgment/ugsc/2009/34/eng@2009-04-21/source.pdf) * * * * * Report a problem __ ##### Attorney General v Tumushabe (Taxation Reference 1 of 2009) [2009] UGSC 34 (21 April 2009) Copy citation * __Document detail * __Related documents * __Citations 1 / - Citation Attorney General v Tumushabe (Taxation Reference 1 of 2009) [2009] UGSC 34 (21 April 2009) Copy Media Neutral Citation [2009] UGSC 34 Copy Court [Supreme Court of Uganda](/en/judgments/UGSC/) Case number Taxation Reference 1 of 2009 Judges [Kanyeihamba, JSC](/en/judgments/all/?judges=Kanyeihamba%2C%20JSC) Judgment date 21 April 2009 Language English Summary Read full summary __ ##### Ask AI Ask questions and understand this document faster using AI. __Ask AI * * * Skip to document content # **THE REPUBLIC OF UGANDA** **IN THE SUPREME COURT OF UGANDA** **AT MENGO** **(before: Hon Justice. G.W.Kanyeihamba J.S.C)** **REFERENCE****NO.1.OF****2009** **BETWEEN** **ATTORNEY GENERAL:::::::::::: APPELLANT** **AND** **JOSEPH TUMUSHABE:::::::::: RESPONDENT** _(Arising from the judgment of the Supreme Court in_ Constitutional Appeal No.3 of 2005, (_Coram: Odoki, C.J.,_ _Tsekooko,Mulenga, Kanyeihamba, Katureebe, Okello. JJ.S.C and Ogoola. Ag. J.S.C. ) dated 9_ _th_ _July,2008 ) and from the decisions of the taxing officer, Ms. H.Wolayo, Registrar of the Supreme Court , dated 30_ _th_ _January,2009_) **Ruling OF COURT** this is a taxation reference under Rule 106(1) and (3) of the Rules of this Court, from the decisions of the Registrar of the Supreme Court as a taxing officer which she delivered on 30th January, 2009. The applicant was represented by Perusi Nshemereirwe, SA. The respondent was represented by Peter Walubiri. The Memorandum of Reference contained three grounds framed as follows: 1. _**That the bill of costs taxed to the tune of 50,096,350 is, in the circumstances manifestly excessive.**_ 2. _**That the taxing officer erred in principle in not taking into account the principle of consistency in awarding costs.**_ 3. _**That the taxing officer erred in principle in not taking into account the principle which requires that costs be kept at a reasonable level so as not to keep a way poor litigants and not deplete the Consolidated Fund.**_ In the written submissions by the appellant’s counsel filed on the 19th march, 2009 ground 3 of the reference was amended by deletion of any reference to the Consolidated Fund. At the Hearing of the Reference Ms Nshemereirwe indicated that the written submissions were not actually submissions filed in accordance with Rule 94 of the Rules of this Court but were merely notes to guide counsel in her oral submissions before court. Consequently, counsel for the Attorney General proceeded to address court orally. She gave the background to the reference and then argued as follows: That the principles established by the courts is that the costs of litigation should not be excessive to deter would be litigants. She criticized the taxing officer for relying on the case of **Paul K Semwogerere** **and Zachary Olim v Attorney –** **General** , Civil Application No.5 of 2001 and **Charles Onyango Obbo v.** **Attorney General** , Civil Application No. 6 of 2002, which counsel claimed were distinguishable from the present reference because those cases were based on different circumstances. According to counsel, the former case were argued and heard for **a** _**whole day,**_ longer period of the time and in the other there was evidence that Counsel had carried out extensive research to present submissions that guided the Court. Ms. Nshemereirwe cited other cases such as **Attorney General v. James Mark Kamoga and James Kimala** (S.C) Criminal Application No. 02 of 2008 and **A.G. v Uganda** **Blanket Manufacturers** , Civil Application No 17 of 1993, in which excessively high instructions fees awarded by learned taxation officers were drastically reduced by the different panels of this court. Lastly, counsel for the Attorney - General submitted that in awarding the high costs in this case, the learned taxing officer ignored the provisions of Rule 9(2) of the third schedule to the Rules of this court. For the respondent, Mr. Walubiri supported the amount of award allowed by the learned taxing officer. Counsel for the respondent contended that the award of sum of 50,000,000/= was quite reasonable under the circumstances of this case. He contended that it is trite law that appellate courts should not interfere with awards of a taxing officer which after all are founded on the discretionary powers of the officer concerned. He submitted that the only grounds for which such an award may be varied are two, namely, whether the award was unlawful or manifestly excessive. In Counsel’s opinion, the taxing officer’s award was neither unlawful or nor excessive. Mr. Walubiri submitted that the case was an intricate and complicated one which had called for extensive research which respondent’s counsel diligently did. He contended that the value and the circumstances of a case need to be taken into account and the learned registrar of the Supreme Court rightly did so. Counsel for the respondent further contended that just as a judge has discretion to award costs, the same discretion can be exercised by a registrar when acting as a taxing officer. Counsel cited the case of **Attorney** **General v James Mark Kamoga and James Kimala,** Civil application No. 02 of 2008, where the court, having considered the complexity and circumstances of the case, granted a certificate for two counsel. In counsel’s opinion, this being a constitutional case of great national importance deserved to have its counsel awarded a high instructions fee and the learned taxing officer was correct to award the same which the appellant now opposes. For the respondent counsel also cited the cases of **Paul K. Semwogerere v Zachary Olum v Attorney-General** (_supra_) and **Charles Obbo v the Attorney-General** , (_supra_) In order to evaluate the reasonableness of the award of instructions fee by the taxing officer in this reference, it is necessary to understand what issues were at stake and how they were presented by Counsel and resolved by both the Constitutional Court and the Supreme Court as a first appellate court. Mulenga J.S.C. in the lead judgment of this case who was supported by all the Justices of the Court ably set out the background of this case as follows: “ _**This appeal arises out of a public interest litigation, which the respondent instituted in the Constitutional Court by petition under Article 137 (3) of[the Constitution](/akn/ug/act/statute/1995/constitution), alleging that the detention of 27 persons names in the petition (the detainees) by the Uganda People’s Defence Forces (UPDF), was inconsistent with and in contravention of the provisions of [the Constitution](/akn/ug/act/statute/1995/constitution). In the petition, the respondent sought diverse declarations and orders for redress. The appeal against the judgment of the Constitutional Court for holding that the General Court Martial is a subordinate court and granting a declaration that the detainees were entitled to be released on said upon completing 120 days on remand in custody”.**_ In the Constitutional Court, the substance of the petition was summarized in paragraphs 2 and 7 of the petition which had been framed as follows: “ _**2 The act of the Uganda People’s Defence Forces and its General Court Martial of keeping on remand Dr. Julius Muhumuza and 26 others and refusing or neglecting to hear their bail application and or releasing them on bail and thereby maintaining them in custody for a period of exceeding 360 days done under the provision of S.15, 73 (3) and 81 of the Uganda People’s Defence Forces Act, cap 307 is inconsistent with and contravenes article 21 (1) (2) and (3) and Article 23 (6) (a) of[the Constitution](/akn/ug/act/statute/1995/constitution) of the Republic of Uganda, 1995.”**_ “ _**3\. That Article 23 (6) (b) and (c ) of[the Constitution](/akn/ug/act/statute/1995/constitution) of the Republic of Uganda, 1995 in as far as it grants bail rights to persons triable only by High Court and subordinate courts, discriminated against persons on trial by military court martial and is accordingly inconsistent with and contravenes article 21(1) (2) and (3) 23(6) (a) of [the Constitution](/akn/ug/act/statute/1995/constitution) of Uganda, 1995” **_ In response, the respondent pleaded that the holding of the detainees in custody, was on authority of a lawful court order made under the provisions of section 15, 77 (3) and 81 of the UPDF Act and consequently was not inconstant with and did not contravene Article 23 (6) (a) of [the Constitution](/akn/ug/act/statute/1995/constitution). Secondly, the respondent pleaded that Article 23 (6) did not discriminate against persons on trial by military courts and that allegation that the provisions of Article 23 (6) (5) ( c) were inconstant with Article 21 (1), (2) and (3) were not justifiable. The petition and answers thereto supported by affidavits. There was no serious dispute on the facts or laws applicable. The case turned out to be based on the meaning, application and interpretation of [the Constitution](/akn/ug/act/statute/1995/constitution) and the Uganda People’s Defence Forces Legislation. By a majority of 4 to 1, the learned Justices of the Constitutional Court held that the General Court Martial is a subordinate Court in relation to the High Court of Uganda and higher courts. They also held that since the detention of the army suspects beyond 120 days was unconstitutional, the detainees were entitled to be released on bail. Although the Constitutional Court did not give reasons, it chose not to award any costs to either party. The appeal in this court was that the learned Justices of the Constitutional Court had erred in law by declaring that: 1. _**The General Court Martial is a subordinate court and**_ 2. _**The detainees were entitled to be released on bail after 120 days from the date they were first remanded in custody by the General Court Martial.**_ Counsel for both parties filed written submissions in support and opposition to the grounds of appeal, respectively. Counsel for the appellant prayed this court to allow the appeal and uphold the minority judgment while the respondents prayed the court to uphold the majority judgment in the Constitutional Court. In their respective submissions, Counsel for the parties reiterated their arguments in the Constitutional Court and cited more or less the same authorities. Examination of the judgment in this court indicates quite clearly, that the Justices of the Supreme Court simply reviewed the arguments, laws and authorities presented and referred to by the learned Justices of the Constitutional Court and agreed with the majority judgment. This court awarded costs of the appeal in the Supreme Court to the respondent. It is against this background that the learned taxing officer’s decisions should be examined and resolved. In her ruling, the learned Registrar observed, correctly in my opinion, that the principle is that the taxing officer awards what is reasonable while taking into account the nature of the appeal, the value of the subject matter, other costs to be charged, the interest of the parties, the general conduct of the proceedings and other relevant circumstances. I agree that this is a catalogue of the matters that guide the discretionary powers of a taxing master. Thus, Rule 9 of the Third Schedule of the Judicature Act provides that: “ _1……………………………………………………….._ “ _**2 The fee to be allowed for instructions to appeal or to oppose an appeal shall be a sum that the taxing officers 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. (3) The sum allowed under subparagraph (2) of this paragraph shall include all the work necessarily and properly done in connection with the appeal and not otherwise chargeable including attendances, correspondence, perusal and consulting authorities.”**_ I note however that amongst other items the taxing officer took into account the attention and publicity the media gave to the case as well as the case’s public importance. With respect, I do not think these two items are relevant in the assessment of the instructions fees to be allowed. Interesting as it may be to the public, a case’s costs should not be based on such criterion. As already noted, there is no evidence to suggest that extensive research was carried out as stated by the taxing officer. This appears to be misdirection on the part of the learned registrar. She equally misdirected herself by taking into account the fact that the respondent will not collect costs from the Constitutional Court. In light of the fact that in its indefinite wisdom, the Constitutional Court decided not to award costs, by considering and taking into account that factor as relevant, the taxing master is indirectly suggesting that costs in that court ought to have been awarded. In my opinion that is an improper suggestion. There are numerous reference cases decided in this court stretching over a decade. These have included, amongst others. **Non – Performing Assets Recovery Trust v General Parts (U) Ltd,** Civil Application No.13 of 2000 where Justice Karokora. J.S.C. as he then was reduced taxed costs from Shs 188,927,427/= 5,000,000/=, **Patrick Makumbi and Nakibuuka Enterprises v. Sole Electrics (U) Ltd** , where Manyindo, D.C.J as he then was disallowed a claim of Shs 1,800,000 where counsel had failed to prove that he had spent that sum of money on the case, **C.C. Candran** v **Kengrow Industries** , Civil Application No.22 of 2002 where this court (Tsekooko, Karokoro and Kato, J.S.C. held that while inflation should be borne in mind, it should be note be used to justify an award of exorbitant costs. In **Habre International Trading Co. Ltd v Francis** **Rutagarama Bantariza** , Civil Application No.78 of 2003, I had opportunity to say: “ _**The taxing officer cites the lengthy and involved judgment of the court as one of justifying grounds for a higher award of costs. In my view, the nature and style of a judgment does not necessarily reflect the actual work done by counsel who appeared before the court. This is yet another wrong principle applied by the taxing officer.”**_ In that reference, I disallowed an award of Shs. 48,000,000/= by the taxing master as instructions fee and substituted it with one of 5,000,000/=. In the **General parts (U) Ltd v Non-Performing Assets** **Recovery Trust** (supra) the decision of the single judge was referred to a full bench of three Justices (Mulenga, Kanyeihamba, Mukasa Kinyogo, J.J.S.C. as they were all then, and the bench increased the amount from Shs 5,000,000 to Shs. 15,000,000/= but to less than what had been allowed the taxing officer in the sum of Shs 188,927,427 and in the recent case of **Attorney - General v James** **Mark Kamogo and James Kimala** , Civil Application No 02 of 2008, my learned brother Okello J.S.C. reduced a taxed amount from Shs 70,418,500/= to Shs 17,918,500. There have been other decisions of the Supreme Court since, 1986 in which sums of taxed costs awarded by learned taxing officers have been altered mainly downwards because those learned officers took into account irrelevant or failed to take into account relevant matters. For the reasons I have given, I allow this reference: I set aside the instruction fee taxed by the learned Registrar of the Supreme Court. I strike out the sum of Shs. 50,000,000 as instructions fee and substitute it with the sum of Shs 15,000,000/= only. I award costs of this reference to the applicant which shall not exceed the sum of Shs 5,000,000/= in total. Before leaving this reference, I am constrained to observe that despite numerous decisions of this court on taxation references, the reasons and guidelines given thereon for a generation, taxing officers in the Judiciary appear not to be aware of these binding precedents or conveniently avoid referring to them. Consequently, many decisions which are reached by taxing officers are made on a selective or partial basis, sometimes heavily relying on ancient on foreign precedents which are unfair to litigants and are often wrong both in principle and in law. The learned Registrar of the Supreme Court is hereby directed to draw the attention of the Courts of the Judicature to this ruling. **Dated at Mengo this 21****st****day of April 2009** **G.W.KANYEIHAMBA** **JUSTICE OF THE SUPREME COURT** 12 #### __Related documents #### More documents like this one ▲ To the top >