The Microfinance Support Centre v Kasese Hospital & Another (Miscellaneous Application 7 of 2024) [2024] UGHC 515 (26 April 2024)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT FORT PORTAL

MISCELLANEOUS APPLICATION NO. 07 of 2024

(ARISING FROM TAXATION MISCELLANEOUS APPLICATION NO. 41 OF 2023)

(ARISING FROM OS NO. 079 OF 2023)

THE MICROFINANCE SUPPORT CENTRE========================APPELLANT

VERSUS

1. KASESE HOSPITAL 2. BAGUMA JOHN HENRY==============================RESPONDENTS

BEFORE HON. JUSTICE DAVID S. L. MAKUMBI

Applicant represented by Orima and Co. Advocates

Respondent represented by Masereka, Mangeni and Co. Advocates

RULING

BACKGROUND:

This Application is brought by way of Chamber Summons under Section 62 of the Advocates Act and Regulation 2 of the Advocates (Taxation of Cost) and seeks an order that the costs taxed and allowed in Taxation Miscellaneous Application No. 41 of 2023 be revised downwards.

The Application is supported by the affidavit of Winner Karungi on the grounds that:

1. The costs in the said suit are high, excessive and unconscionable in the circumstances of the case.

2. The costs allowed are not in line with the regulations governing the taxation of costs.

3. It is in the interests of justice that the application be granted.

The deponent of the affidavit in support of the Chamber Summons stated that the Appellant had filed Originating Summons No. 079 of 2023 for an order of vacant possession against the Respondents for default of rental obligations but the Originating Summons were later withdrawn with costs to the Respondents. On 30th November 2023, the bill of costs was taxed and allowed at a sum of UGX, 16,277,500 (Sixteen Million Two Hundred Seventy-Seven Thousand Five Hundred Uganda Shillings only).

The deponent Ms. Karungi went on to state that the costs were high, excessive and unconscionable and that they were not in line with the Taxation of Costs Regulations. She further stated that the bill was taxed at a rate of the subject matter yet the value could not be determined from the pleadings, valuation of judgment and that the Originating Summons No. 79 of 2023 was supposed to have been taxed per Paragraph 6 of the 6th Schedule of the Advocates (Remuneration & Taxation of Costs) Regulations.

By way of written submissions, Counsel for the Appellant argued that the bill of costs was excessive and was made in disregard of the aforementioned Schedule of the Advocates (Remuneration and Taxation of Costs) Regulations as concerns instruction fees.

Counsel for the Appellant went on to argue that Section 62(1) of the Advocates Act established the right for an aggrieved party to appeal against a bill and that furthermore the scale of fees in the High Court is provided for in the aforementioned Regulations.

Counsel for the Appellant further cited Bank of Uganda v Banco Arabe Espanol – Supreme Court Civil Appeal No 23 of 1999 as the basis for which this Court can interfere with the Taxing Master’s discretion.

Counsel for the Appellant contended that Regulation 2 of the aforementioned regulations provides that the remuneration of an Advocate of the High Court by his or her client in contentious and non-contentious matters shall be in accordance with the regulations. Counsel further cited Regulation 57 as the basis for charging in accordance with the Sixth Schedule of the Regulations.

Counsel for the Appellants also cited the cases of Makumbi and Another v Sole Electrics (1990-1994) 1 EA 306 and Mayers and Another v Hamilton and Others (1975) 1 EA 13 in further support of their arguments that for matters such as Originating Summons 79 of 2022 concerning vacant possession the correct application was Paragraph 9(2) of the Sixth Schedule of the Regulations.

In response to the application, Mangeni Peter Osinya of Masereka, Mangeni and Co. Advocates stated in as Affidavit in Reply that the Appellant’s appeal was time-barred as it was not filed within 30 days as required by law. The deponent stated that the appeal was instituted on 25th January 2024 which was 55 days after the Certificate of Taxation was issued on 30th November 2023.

It was further contended in reply that the Certificate of Taxation was a result of consent reached in pre-taxation meetings held on 29th September 2023 and 30th November 2023. It was also contended that the taxation was based on recovery of UGX 288,406,966 (Two Hundred Eighty-Eight Four Hundred Six Nine Hundred Sixty-Six Uganda Shillings only) and that the subsequent amount taxed was within the provisions of the Sixth Schedule of the aforementioned Regulations and was lawful.

The Respondent further contended in reply that it was not true that what was allowed under Item 1 of the Bill of Costs was UGX 15,040,500 but rather that this amount was what was taxed off at pre-taxation and Item 1 was allowed at UGX 11,280,000.

By way of written submissions, Counsel for the Respondent reiterated that the appeal was time-barred by virtue of Section 62(1) of the Advocates Act. Counsel further argued that the matter having been subject to consent of the parties was not appealable per Section 67(2) of the Civil Procedure Act.

Counsel for the Respondent further argued that there was a subject value for recovery of UGX 288,406,966 in High Court Original Summons 079 of 2023. Furthermore, UGX 15,040,000 was taxed off UGX 26,320,000 leaving an allowed amount of UGX 11,280,000.

Counsel for the Appellant submitted in rejoinder that the appeal was not time-barred as the Respondent had failed to take into account the Christmas vacation period between 24th December 2023 and 15th January 2024.

Counsel further submitted that while the taxation had been premised on consent of the parties, the Appellant has filed an application to set aside the consent on basis of fraud, misrepresentation and illegality and is likely to succeed. Counsel also contended that even with consent it must comply with the rules.

ANALYSIS AND RESOLUTION OF THE APPLICATION:

Having had the benefit of looking at the application and the submissions of the parties I find that this court is confronted with the following issues:

1. Whether the Application is time-barred.

2. If the first issue is resolved in the negative then whether the taxation in issue was founded on the consent of the parties before the Taxing Master.

3. If the second issue is resolved in the negative then whether the costs taxed in Taxation Miscellaneous Application No. 41 of 2023 are lawful.

ISSUE 1:

Section 62(1) of the Advocates Act provides that,

*“Any person affected by an order or decision of a taxing officer made under the provisions of this part of this act or any regulations made thereunder may appeal within 30 days to a judge of the High Court who on such appeal may make any order that the taxing officer might have made.”*

The Respondent contended that the appeal having been made on 25th January 2024 was out of time having been filed 55 days after 30th November 2023 when the Certificate of Taxation was issued.

The Appellant contended in response that Order 51 Rule 4 of the Civil Procedure Rules gives an Applicant allowance for Christmas vacation days which are not counted in terms of filing.

Order 51 Rule 4 of the Civil Procedure Rules provides that,

*“Unless otherwise directed by the court, the period between the 24th day of December in any year and the 15th day of January in the year following, both days inclusive, shall not be reckoned in the computation of the time appointed or allowed by these Rules for amending, delivering or filing any pleading or for doing any other act; except that this rule shall not apply to any application for an interim injunction, or to any business classified by the registrar or by a magistrate’s court as urgent.”*

A simple reading of Order 51 Rule 4 shows that the rule is restricted to computation of time appointed or allowed by the Civil Procedure Rules for filing pleadings thereunder.

As concerns the matter in issue, the process of appeal is derived from the Advocates Act and to that extent even the time for the appeal is specifically stipulated under Section 62(1) of the Advocates Act. The time for filing the appeal is therefore not subject to Order 51 Rule 4.

In terms of computation of the time for purposes of Section 62(1) of the Advocates Act, the correct reference is Section 34(1) of the Interpretation Act which provides that,

*“In computing time for the purpose of any Act—*

1. *a period of days from the happening of an event or the doing of any act of thing shall be deemed to be exclusive of the day in which the event happens or the act or thing is done;* 2. *if the last day of the period is a Sunday or a public holiday (which days are in this section referred to as “excluded days”), the period shall include the next following day, not being an excluded day;* 3. *where any act or proceeding is directed or allowed to be done or taken on a certain day, then if that day happens to be an excluded day, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards, not being an excluded day; or* 4. *where any act or proceeding is directed or allowed to be done or taken within any time not exceeding six days, excluded days shall not be reckoned in the computation of time.”*

From the above, it is clear that for time periods greater than six days established under any Act the only allowable excluded days are those that coincide with the last day of the period in question (See Section 34(1)(b) above).

It is therefore my conclusion that the appeal having indeed been filed way beyond the 30-day window prescribed under Section 62(1) of the Advocates Act is incurably time-barred and to that extent the appeal fails.

The appeal being time-barred I find no reason to delve into the remaining issues.

ORDER:

This appeal is dismissed with costs to the Respondent.

David S. L. Makumbi

JUDGE

26/4/24