Finally, the election petition between Winnie Byanyima and Ngoma Ngime may be over. The last act was the taxation of the bill of costs filed by Ngoma Ngimeâ€™s lawyers. Below are excerpts from the ruling
Finally, the election petition between Winnie Byanyima and Ngoma Ngime may be over. The last act was the taxation of the bill of costs filed by Ngoma Ngimeâ€™s lawyers. Below are excerpts from the ruling.
In the court of appeal, Election Appeal No. 11 of 2002: Ngoma Ngime vs. Electoral commission & Winnie Byanyima:
The appellant, acting through M/S Kibedi and Company Advocates filed the present bill of costs. It is a total sum of sh602,983,000. Sh600,000,000 of this is claimed as instruction fee â€œto prosecute an appeal of interest to the public and the parties, involving intricate and complicated points of law and facts and voluminous record of appeal.â€
In his address to the court, counsel for the appellant amplified and elaborated on the three factors on which he anchored his claim for such huge instruction fee. He argued that every election petition is of interest to the contestants in the electoral process and the parties to the petition; it is also of interest to the electorate and the whole nation in general. He further argued that Parliament has passed specific legislation, which accord election petitions precedence over other cases.
â€œThey stand immediately below, actually scratching constitutional petitions,â€ Mr. Kibedi observed.
Based on the case of PK Ssemwogerere & Another vs. Attorney General, where court awarded sh600,000,000. While this appeal had taken three days, the current appeal had taken nine.
Counsel for the second respondent conceded some items but strongly objected to the instruction fee of sh600,000,000, which he termed excessive and outrageous. He submitted that this was an ordinary election petition appeal.
On authorities, counsel argued that the cases in the list filed were not very many and the majority of them had been cited in the Besigye case. There was therefore no need for independent research to discover them. Counsel proposed an instruction fee of sh15,000,000.
The rules of this court require the registrar as taxing master to tax a bill of costs in accordance with the rules and scale of costs set out in the Third Schedule. He must follow the guidelines and take into account factors that include the amount involved, 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. In addition, the taxing master must bear in mind the principles of taxation enunciated in numerous cases, which boil down to this: The taxing master must strike a delicate balance between and among competing interests.
It was stated in the case of General Parts vs NPART, â€œThe assessment of instruction fees entails balancing of diverse principles and considerations that have been settled in previous decisions.â€ Some of the principles and considerations were summarised in Ssemwogerere and Another vs Attorney General.
â€œIn our view, there is no formula by which to calculate the instruction fee. The exercise is an intricate balancing act whereby the taxing officer has to mentally weigh the diverse general principles applicable, which sometimes are against one another, in order to arrive at the reasonable fee.
Thus, while the taxing officer has to keep in mind that the successful party has to be re-imbursed expenses reasonably incurred during the litigation, and that advocates remuneration should be at such level as to attract recruits into the legal profession. He has to balance that with his duty to the public not to allow costs to be so hiked that courts remain accessible to only the wealthy.â€
As it happened, the academic qualifications of the appellant was the central issue on which the petition was fought in the High Court and in this court.
It is precisely because that issue was resolved in his favour that the appeal to this court was partly allowed with costs. On the other hand, the public must not be deterred from seeking political elective office, nor be impeded in seeking political redress by an award of exorbitant costs. Secondly, I take judicial notice of the fact that elections to Parliament are a costly undertaking.
The sum of sh600,000,000 claimed by the appellant is way off the mark, to put it mildly. The sum of sh15,000,000 proposed by counsel for the respondent only points in the direction of a reasonable fee, but is nowhere near one.
Taking into account all the above factors and applying the best I can, the settled principles and considerations, I have come to the conclusion that a sum of sh48,000,000 is a reasonable instruction fee in the circumstances of this case.
In the result, the full amount allowed after taxation of the appellantâ€™s bill stands at sh49,840,500. Since the appellant was awarded one third of the costs, the respondent shall pay to the appellant a sum of sh16,613,500 only.
Dated at Kampala this 16th June, 2003
Byanyima to pay Ngime sh16.6m