Katatumba shumuk forex
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Firstly the judgement of the court did not state any amount to pay and therefore the aspect of this rule was not applicable. There was no amount claimed because the first respondent was sued for an order of injunction and the property involved was 27 condominium units on the suit property which had more than units in total.
Because what was claimed in the plaint was an injunction it could not be computed in terms of a value. Counsel submitted that the proper item under which the matter should have been taxed was rule v. The claims against the first respondent were dismissed under order 6 rules 30 of the Civil Procedure Rules on the ground that there was another suit in the same court namely HCCS number of between the second appellant and the first respondent on the issue of ownership of plot number 2 Colville Street which were still pending.
This valuation was not mentioned in the plaint nor in the judgement of the court and the taxing master does not indicate how she arrived at or came to accept the valuation. Counsel reiterated submissions against award of instruction fees to the first respondent. Because the two respondents were represented by the same firm of advocates namely MMAKS Advocates they ought to get joint instruction fees of Uganda shillings 75, as basic. If this scale of fees was to be applied it could only extent to the same amount and nothing more.
However because the matter was interlocutory, counsel reiterated submissions made in opposition to the award of instruction fees to the first respondent. He contended that no values could be ascribed to the subject matter of the suit and the case of Bank of Uganda versus Banco Arabe Espanol supra applied. He further submitted that the others shared the same costs as those of the second and fifth respondents on the ground that they were represented by the same firm of advocates namely MMAKS advocates in the absence of the court directive otherwise.
Counsel further contended that a plaint which is rejected under order 7 rule 11 of the Civil Procedure Rules does not conclusively determine the action. He relied on order 7 rule 13 of the Civil Procedure Rules and the case of G. Nagwoko vs. Sir Charles Tutahaba [] EA for the proposition of law that such an order can be said to be interlocutory and not final. Concerning the award to the 4th respondent of Uganda shillings 94,, The sum was neither in the plaint nor the judgement of the court.
Counsel reiterated submissions on the same point in respect of the first, second, third, and fifth respondents. The fourth respondent claims to have owned 11 units out of a total of about when the entire complex of amounted to US dollars 5 million. He reiterated submissions that the units were not given the value in the plaint or the judgement and the claim against the fourth respondent was for an injunction which cannot be quantified.
He submitted that it was unlawful for the taxing master to have accepted the value stated in the bill of costs of the fourth respondent. The taxing master ought to have used item v of the sixth schedule of the Advocates Remuneration and Taxation of Costs Amendment Rules, Secondly the plaint was rejected under order 7 rule 11 of the Civil Procedure Rules and there was a counterclaim by the fourth respondent against the appellants which is still pending in court.
The taxing master held that the parties were different. Counsel contended that it was strange for the taxing master to allow a joint instruction fee for the second, third and fifth respondent represented by MMAKS advocates and permit a separate instruction fee for the sixth respondent represented by the same firm.
He contended that there was no justification for this. Court should consider the fact that when the advocates appeared in court, they appeared for all the respondents they represented at the same time. Concerning the amount of work, the work was done by the single firm and the same objection was argued to cover all the respondents. Issues involved in the case did not go beyond the scheduling conference which was never concluded.
Finally counsel submitted that the award to the defendants was therefore not justified since it was not based on a certificate of two counsel under the proviso 3, 4 and 5 to rule 1 of the sixth schedule of the Advocates Remuneration and Taxation of Costs Amendment Rules, The rule provides that the taxing master shall consider whether there are different parties represented by the same law firm and whether separate pleadings or other proceedings were necessary or proper which the taxing master appears to have clearly omitted to do.
Counsel prayed that this award is struck out or set aside. Finally the appellants counsel prayed that the appeal is allowed and the court assesses instruction fees as it deems appropriate to pave way for the hearing of the counterclaims of the respondents or in the alternative to set aside the award and refer the matter back to the taxing master following the principles outlined in the submissions.
In reply Counsel Benson Tusasirwe counsel for the first respondent submitted first. The first respondents counsel opposed the appeal in so far as it relates to the first respondent. He contended that from the decided cases it is now well established that for a judge to overturn the ruling of the taxing officer, the taxing officer must have been based her award on wrong principles.
He submitted that this suit fell squarely within the parameters of the sixth schedule because the value of the subject matter was known and has been pleaded by the appellants. He contended that the above cases have to be applied with a pinch of salt. Firstly the cases dealt with costs on appeal governed by different rules and not the Advocates Remuneration and Taxation of Cost Rules Those rules are found in the schedules to the rules of the Court of Appeal and the Supreme Court.
The rules do not provide for fixed amounts and the discretion of a taxing master is much wider because he or she considers the value of the subject matter, the effort involved, the time taken etc. Counsel submitted that a party who sues in the first instance is governed by the sixth schedule used in contentious matters. In appeals it's a general rule and discretion is exercised differently.
In appears there is no scale upon which to determine instruction fees and much more discretion is given to the taxing master. Whereas in the court of first instance namely the High Court there is a fixed scale to be applied and less discretion. Secondly the cases quoted above relied upon by the appellants counsel were decided before the Advocates Remuneration and Taxation of Costs Rules of The cases were decided under the old rules which made them more of a guideline. Under the current rules and as provided by rule 37, the rules shall apply whereas in the old rules the taxing officer had to use the rules as guidelines.
Consequently in the case of Makula international supra the court held that the taxing officer in contentious master must first find the appropriate scale and secondly that he or she must first consider the basic fees which shall be increased or decreased. Counsel contended that when a matter falls within the sixth schedule the amount is given in actual figures and the percentage of figures and there is no power conferred on the taxing officer to reduce or increase.
As far as the case of Bank of Uganda versus Banco Arabe Espanol supra was relied upon, the case was quoted out of context because in that case the court dealt with an application for security for costs, and the suit had been struck off.
The point was that it was an interlocutory application within the main suit because the matter was a matter of security for costs. The decision of the court conclusively determined the main suit. The subject matter for purposes of taxation is the subject matter of the suit itself. In the case of Banco Arabe Espanol supra the court found that the dismissal of the suit did not finally determine the suit.
That the dispute in the suit was whether the defendant was liable to pay the money claimed by the plaintiff? It was held that that issue was not due for determination in either the appeal in the Court of Appeal or the Supreme Court. Consequently both appeals were interlocutory. Counsel further contended that it was erroneous to submit that because there was another case namely civil suit number of between the same parties that the dismissal of the suit was interlocutory.
There was no relationship between the dismissed case and the other suit. Each suit has to be determined on the basis of its own merits. He contended that even if a party was claiming non monetary remedies, it was still possible to determine the value of the subject matter. Particularly the plaintiff pleaded in paragraph 7 of the plaint the value of the subject matter of the suit. Counsel submitted that the sixth schedule paragraph iv thereof has to be interpreted liberally to mean the value of the subject matter or alternatively the amounts involved.
It was improperly before the court because it was not raised before the taxing officer and cannot be raised on appeal because the taxing officer had not erred where the matter that had not been raised. Secondly it cannot be argued that the amount awarded is excessive under the current rules made in An amount would be excessive if there was no ground on which it is based and where the taxing master is exercising discretion and became too generous.
Where the amount is based on a given schedule and there is no error of computation, the question of excess award cannot arise. Counsel referred to rule 37 of the Advocates Remuneration and Taxation of Costs Rules which makes it mandatory that the award of costs incurred in contentious proceedings in the High Court and Magistrate Courts shall be subject to be taxed under the sixth schedule.
This is distinguishable from the old rules where discretion is given from which the taxing officer would increase or decrease on the basic amount depending on the seriousness of the case, the value of the subject matter etc. An amount can only be excessive in two case scenarios. The first case scenario is where it is not possible to determine the value of the subject matter and therefore the amount is determined on the basis of discretion only.
The second scenario is in interlocutory applications where the law gives a minimum fee payable as leaves the rest to the discretion of the taxing master. It does not apply to a bill of costs where the main suit is conclusively determined. In such cases the 6th schedule applies. In light of the above counsel concluded that the ground of appeal that the amount awarded as instruction fees was manifestly excessive is misconceived.
In the alternative counsel submitted that if the court were to be find that the amount depended on the discretion of a taxing master, the amount awarded would not be excessive. This is because in the exercise of discretion, the taxing officer is required to pay due regard to the value of the subject matter so far as can be ascertained, the complexity of the case, time spent on the case, appearances, etc. Consequently the amount awarded was not excessive if the court had to consider the value of the subject matter whether or not it failed under schedule 6 paragraph iv or under the discretionary powers of the registrar.
Counsel prayed that the decision of the taxing officer shall be upheld and in the alternative that no wrong principle had been applied neither was the amount excessive. In further reply to the Appellants submissions, Counsel Masembe addressed court on behalf of Mubiru Kalenge counsel for the fourth respondent and on behalf of the 2nd, 3rd, 5th and 6th respondents. He adopted the substance of the arguments of learned counsel for the first respondent.
Firstly on whether the dismissal was interlocutory, Counsel contended that an interlocutory disposal meant a disposal as a stage towards another matter. Whether a suit is disposed off on the merits or not, instruction fees are still recoverable. In any case the second, third, fifth and sixth defendants are not parties to any other matters. Consequently the dismissal of the action as against them was a final disposal of the particular suit and instruction fees has to be based on the value of the subject matter of the suit.
Learned counsel further distinguished the case of Banco Arabe Espanol versus Bank of Uganda which he contended was misconstrued by the appellants counsel. He submitted that the facts of the case were clearly distinguishable on the ground that they learned taxing master had treated the value of the claim in the suit as the subject matter for purposes of taxation.
Yet it was an interlocutory matter for security for costs. The court of appeal held that security for costs could be deposited out of time. Consequently if the parties returned back to court to argue the main suit, it would be hard to understand what to do in the High Court if the subject matter had been disposed off.
In the matter before this court, the preliminary objection disposed of the whole suit and there is nothing interlocutory about the disposal. In that suit the appellants sought to deny the defendant any property rights in the condominium units. The contracts between the rest of the respondents and the first respondent have nothing to do with the relationship between the first respondent and the appellants.
The second, third, fourth, fifth, and sixth respondents are registered proprietors. Ownership to the various units was being contested in the main suit. The subject matter was the proprietorship interest in the units. Furthermore with reference to the case of Banco Arabe Espanol versus Bank of Uganda it was held that a judge cannot substitute his or her own view as to what would be the appropriate instruction fees to have been awarded by the registrar.
Honourable justice Mulenga JSC held that save for exceptional circumstances, a judge cannot interfere with the assessment of a taxing officer on what the taxing officer considers to be a reasonable fee. The taxing officer is expected to be more experienced than the judge. Consequently a judge would not alter a fee allowed by the taxing officer merely because he or she is of opinion he would have allowed the amount.
There needs to be an error of principle as the starting point for interference with the orders or awards of a taxing master. And the error of principle relied upon by the appellant is that the matter was interlocutory and this is not correct so it cannot form the basis for interference with the orders of the registrar. The appellants were asserting rights to the exclusion of the defendant's rights and that forms the subject matter of the suit.
Because the appellant cannot surmount the first hurdle of proving an error in principle, it cannot ask the court to interfere with the quantum of award. Learned counsel further supported the submissions of counsel for the first respondent on this point and added that the value of the subject matter cannot be introduced at this stage because it was not a matter before the registrar. Counsel further submitted that the instruction fees awarded were not excessive and they were no errors of principles which have been shown nor has it been shown that they are so excessive that an error of principle must be inferred.
In rejoinder by the Appellant's Counsel Counsel rejoined on whether the issue of the value of the subject matter had been raised before the taxing master. He submitted that indeed it had been raised and can be established from the written submissions filed before the taxing master. On whether evidence of error of principles has not been established, counsel contended that the rules for taxation of costs were very clear.
They direct a taxing master what to do. Consequently there are two specific matters to be considered. The first is whether the judgment mentions the value of the subject matter and secondly if it does not mention it, what does the plaintiff seeks from the court according to the pleadings?
The value of the subject matter cannot be established from extrinsic evidence. So the question is where the respondents obtained the value of the subject matter and who assessed it? Counsel submitted that the plaint does not contain the value of the subject matter. So where did the registrar or the taxing master go for guidance? In such situations one applies the basic fee which may be increased or reduced and that is what the rules provide.
In summary the value of the subject matter must either be stated in the judgment or in the plaint. Where nothing has been stated, the court applies the basic fee. This is what the learned registrar did not do and therefore it was an error of principle. As far as arguments of the first respondent are concerned, all the respondents agree that the matter in court concerned 27 condominium units. It was therefore erroneous to base the value of the subject matter of the suit on the entire property which comprises units.
Notwithstanding counsel contended that the value of the subject matter could not be established because this suit was for a permanent injunction. Consequently it was only proper to go back to the basic fee where the value of the subject matter cannot be ascertained. As far as the authorities cited in support of the appeal are concerned, they give guidelines on how a taxing master should progress when he or she is conducting a taxation matter.
The statute itself contains the principles to be followed when conducting a taxation matter. As far as the criticism levelled on the appellants on the use of the word "excessive" is concerned, counsel contended that the respondents counsels misguided the court.
The word excessive is used because the taxing master on the subject matter which appears nowhere in the judgment or in the pleadings. Consequently the value of the subject matter is a concoction of the respondents. The taxing master was not entitled to accept any figure as the subject matter of the suit. In that sense therefore, when she awards instruction fees based on a fictitious subject matter, it becomes excessive and oppressive as well.
Judgment I have duly considered the submissions of counsels for the parties in this appeal. The first basic submission that cuts across all the submissions of the parties is the question of instruction fees. Secondly it is the contention that the registrar erred in law when she awarded instruction fees on the basis of the value of the subject matter which had not been ascertained from the judgement on the pleadings. As far as the Advocates Remuneration and Taxation of Costs Rules are concerned, the arguments and issues revolved around whether the honourable registrar erred in law when she based her award on instruction fees based on the sixth schedule rule 1 a iv which provides: "to sue or defend in any other case or to present or oppose an appeal where the value of the subject matter can be determined from the amount claimed or the judgement.
It provides that in any action to sue or defend where the value of the subject matter can be determined, the court looks at the amount claimed. There are two things to be examined to ascertain the value of the subject matter. The first thing to examine is whether there is any amount claimed. The second matter which is alternative to examining the amount claimed is to ascertain the value from the judgement.
So the controversy is whether the value of the subject matter can be ascertained for the amount claimed in the plaint or from the judgement. The other key phrase to be considered is "the value of the subject matter".
What happens if the value of the subject matter cannot be ascertained from the amount claimed or from the judgement? This alternative view was that where the subject matter of the action cannot be ascertained from the amount claimed in the plaint from the judgement, the court considers the basic fee chargeable. The submission is also that the action was for a permanent injunction and the value of the subject matter cannot be ascertained or valued in terms of the amount claimed in the pleadings or in the judgment.
Consequently, the appellant's contention is that the applicable rule in the sixth schedule is rules 1 a v. It provides: "to sue or defend or to present or oppose an appeal in any case not provided for above in any court, not less than 75, shillings;" the rule provides that in any other case not provided for under item iv the basic fee shall not be less than 75, shillings. No ceiling is provided. I must add that the rule 1 of the sixth schedule generally deals with instructions to sue or defend.
The heading provides as follows: "instructions to sue or defend —". I need to first note that the first part of the two rules in controversy, are more or less the same and I would like to highlight that similarity. Both rules begin with the following words: "to sue or defend in any other case or to present or oppose an appeal…" That is as far as sub rule iv is concerned.
As far as sub rule v is concerned, the words are: "to sue or defend or to present or oppose an appeal". The only distinction between the two rules is whether the value of the subject matter can be ascertained from the amount claimed or from the judgement. If it cannot be ascertained from the subject matter claimed or from the judgement, then it is the subsequent rule which gives a minimum fee of 75, Uganda shillings which is to be applied.
In such cases, the guidelines of the appellate court on how to ascertain instruction fees where the value of the subject matter is not ascertainable from the amount claimed or from the judgement would be useful. Notwithstanding, it is a question of fact which is not in controversy that the taxing officer based the instruction fees on the value of the subject matter.
It therefore follows that she ascertained instruction fees on the basis of the amount claimed or the judgement. The ruling of the honourable registrar on the first defendant's Bill of costs is that the parties agreed on all amounts in the items except item 1. She held that the plaintiffs cannot deny the value they attached to the subject matter.
Secondly she held that the decision of the court was final and not interlocutory. As far as item number 1 on instruction fees with regard to the award to the 2nd, 3rd and 5th defendant's bill of costs are concerned, she held that the basis of the ruling of the court was that there was no contract between the parties. If a fresh suit is filed, that would be a different case.
So the dismissal disposed of the suit against the defendants. Concerning the fourth defendant's bill of costs, again the issue was the quantum of instruction fees. There was use of dots in samples which is not observed in the specimen signatures, they are also different in proportion of loops. He concluded that it is most likely that the authors of the specimen signatures did not sign the questioned signatures on the said document.
Last year in November, Shumuk was arrested and appeared before Buganda Road Magistrates Court where he was charged over forgery. The Chief Executive Officer of Shumuk Aluminum Industries was charged with six counts of forgery, six counts of uttering false documents and one count of conspiracy to commit a felony.
Prosecution told court that Shumuk and others still at large on April 17, in Kampala, with intent to defraud or deceive, forged a letter for official handover of Hotel Diplomate in Muyenga, purporting to have been signed by the late Katatumba.
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However, a detailed examination showed fundamental differences between them. They differed in shape, design and the crossing lines which were relatively longer on the specimen. There was use of dotes in samples which is not observed in the specimen signatures, they are also different in proportion of loops. In conclusion, Ssebufu adduced that chances are high that the authors of the specimen signatures did not sign the questioned signatures on the said handover document for sale of Hotel Diplomate.
He however noted that no request was made to him to examine the sample signatures of Mr Shumuk on the questioned document. And the building was once again renamed Shumuk House. Owiny-Dollo said before a packed High Court on Monday, that the warrant of eviction issued by Assistant Registrar Henry Twinomuwhezi to the court bailiffs against Shumuk had no basis and was illegal.
He cancelled all the earlier eviction orders including the one that was issued by Akankwasa, saying they had all been issued unlawfully. Owiny-Dollo said he would oversee the order that would be re-issued from the Commercial Court. The High Court directed that while the building remains in the hands of Mukesh, it should not be sold off until the ownership case is disposed of. Owiny-Dollo ruled that the Registrar Execution and Bailiffs Division should refer the orders that had been issued earlier by the two registrars of the division he heads, back to the Registrar, Commercial Division.
The house under dispute located on Plot 2 Colville Street A group of men removed the huge poster that Katatumba had placed on the building in question The young men also took out property belonging to Katatumba after the eviction order Katatumba is pictured here.
He ordered Katatumba to pay the costs. The ruling meant that Shumuk, who is occupying the premises currently, should stay on the property, until the court finally decides on the saga. How it began? It is alleged that in , Katatumba ran into financial difficulties and deposited a number of titles of the units on the then Blacklines House in Crane Bank for a loan.
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