20131024 TZCA Dar es Salaam

. ,-. IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL REFERENCE NO. 9 OF 2009 BETWEEN 1. ANCHE MWEDU } . 2. MR. REGINALD A. MENGI · ...................... ,.........................•. APPLICANTS 3. MRS MERCY ANNA MENGI AND CONSOLIDATED HOLDING CORPORATION ............................... RESPONDENT RULING BAMPIKYA, TAXING MASTER: The applicants referred as Decree holders in this ruling filed the Reference in the Court of Appeal against the_ ruling and ord_ers of a single Justice of Appeal in consolidated Civil Applications No. 4 and 27 of 2009 dated 12/8/2009. At the end of the day, the court found the applicant's application with merits, awarded the costs for the applicant's decree holders for that reference. Following the order as to costs, on 18th day of October 2010, the Applicants Decree holders filed the Bill of costs claiming a total of sum of Tshs. 32,910,000/= against the Respondent/Judgment debtor being the costs incurred in Civil reference No. 9 of 2009. 1 On ih day of February 2013, counsel for the partie~ conceded to argue the application by way of written submissions. The App!icants Decree Holders was represented by M/5 Ngalo and Company Advoc~te, while the respondent/judgment debtor was represented by R. K. Rw~yongeza and Company Advocates. The Applicants/Decree holders Bill of costs consists of ejght (8) items, which are in three categories, being:- (a) Instructions fees, (b) Drawing up preparation of documents and (c) Court attendance. I Regarding item one, which is instructions fees, where a total sum of 32 I million is claimed, the applicants submitted that, although :under the 3rd schedule to the Tanzania Court of Appeal Rules, 2009 there; is no level or I amount of instruction fees prescribed for making, supportin,g or opposing any application, they argued that, item 9 (1) of the 3 rd ~chedule gives I wide description to a taxing officer to award such amo~nt as he/she considers reasonable but should not be less than 100/=. 2 The counsel for the Applicants further argued that Rule 9 (2) prescribe or set factors or guidelines that the Taxing Office.r has to take into account when exercising his/her discretion to allow· the level of instructions fees to make or oppose an application. He further submitted that, there is a plethora of authorities of the Court of Appeal which has elucidated on the factors or grounds which need to be considered while determining what' reasonable amount should be allowed as instructions fees in the circumstances of each matter. He submitted that the factors to be considered as factors are mentioned under rule 9 (2) of the schedule to the Court of Appeal Rules 2009. Also he urged the court to read the authority by the Late Rugakingila J.A. as he then was, in Taxation Reference No. 2 of 2000 between Attorney General and Amos Shavu (unreported). For the reasons advanced, counsel for the Applicant's prayed the amount of Tshs. 32 million claimed in respect of costs for the reference be allowed as the fair, modest and reasonable amount in the circumstances, as is justified by the following grounds:- 3 (a) That the reference was against a decision of a single justice of Appeal which decision was on two separate but consolidated applications; (b) That the reference had raised seven (7) substantive grounds which were all argued at the hearing before the full court; (c) The record of the reference they prepared was voluminous running into 189 pages; (d) The list of authorities they had to research on and lodged in court in support of the grounds of reference; ( e) The nature of the application culminating in th~ reference were one for extension of time to file an amended record of appeal (Civil Application No. 4/2009) and the other for extension of time to apply for necessary documents for filing in the amended record of appeal (Civil Application No. 27 /2009); (f) The importance of those applications was to have 2nd and 3rd Applicants joined in the Appeal which was against dismissal of the Respondent's counter-claim of Tshs. 5.8 billion; 4 (g) The ruling on the reference is a fifteen (15) paged document and it clearly shows that the ground advanced were found to have merit; (h) That the ruling on the reference cites some of the authorities that were used at the hearing of the reference; and · (i) That the Respondent had engaged services of two Senior Advocates. The counsel for the applicant submitted that all these_ matters are on record of the reference which he invited the Taxing Officer to have a look while considering the amount of instruction fees. He also invites the Taxing Master to consider the difficulty and importance of the matter that it was the Respondent who initiated on appeal process without joining therein persons who were parties in counter-claim worth 5.8 billion. He also submitted the duration of 2 years the reference took to be heard and determined be taken into account. i : Regarding the second category, Preparation/Drawing up of I l ' ! Documents, submitting on this, the counsel for the Applicants submitted I that this category consists of item 3 and 7 of the Bill. In 3 item the II . , II I . amount of 600,000/= is claimed being for preparation of 8 sets of record of ! 5 I the reference lodged in the court prior to the hearing of the reference. He stated that, those are direct costs and the indirect ones are for the one of pagination and marking of every 10th line of every page he submitted, and that the work was very tedious and time - consuming and no money value ' can really be put into that. The counsel proceeded to submit that although the 3rd Schedule to the Court of Appeal Rules 2009, does not prescribe the amounts for drawing up, or preparation a reference and bill of costs, but does make provision for drawing up various documents like notice of Appeal and Memorandum of Appeal. He urged the Taxing Master to ·draw inspiration from that scale which is Tshs. 120,000 / = and apply it to Reference matters that are not catered for by the 3rd schedule. Consequently, he prayed the Taxing Master to grant the two items as presented on the strength of the provisions of Rule 11 (1) of the 3 rd schedule to the Rule which gives discretion to a Taxing Officer to allow "such costs charges and disbursement as appears to him to have been reasonably incurred." In relation with the third category; Court Attendance, which ! i! comprises items 2, 4, 5, 6 and _8, he submitted that all are catered for by I Ii 6 the scale provided for in the 3rd schedule to the Rule. Td wit; per items 14, 15, 18 and 19 of the scale of costs. Thus, they implored those items be taxed as presented. All in all the counsel for the applicants prayed the Taxing Officer to ! ' I find merit in their submission and proceed to grant the bill as presented. In reply the counsel for the Respondent/Judgment debtor attacked the submission submitted by counsel for the Applicant, on the bases that the applicants contravened the relevance and applicatior) for paragraph 2 (1) of the third schedule to the Rules of Tanzania Cou~ of Appeal Rules 2009. He submitted that, this is one of the provisions ;under which the applicants relied to lodge the bill in issue. The question ~e asked is that; when is the bill supposed to be filed? On this, he submitted that the I applicant's counsel has avoided to include paragraphs 2 (2) to the rule. i That the bill was lodged on 18th day of October, 2010 while the order was made on 26th day of August, •2010. He submitted that the same was filed after 53 days after the order for the costs, contrary to mandatory provision of the law which provides:- 7 I ! I j ' ! 11 2 {2} A bill of costs shall be lodged as soon as practicable after the making of the order · for costs or not later than twenty one days after a request in writing therefore by the party liable or such further time a~ the Registrar may allow." By all stretch of the mind he argued, the period ~ithin which the applicant's advocate lodged the bill, was not so practicably soon as I stipulated by the law. Thus, he averred, it is time barred for want of leave of the Registrar. He insisted that, since the applicants never requested the Registrar and be allowed to lodge the Bill not later than twenty one days from the order for costs and further even twenty one days had lapsed, if they were allowed to do so, it is disputed. In relation to the question of jurisdiction, the counsel for the Respondent submitted that the Taxing Master has no power to entertain .,I I the Bill filed hopelessly out of time, hence the same should,be dismissed. The counsel went further and submitted that the Bill, is sub-judice as there is a pending application in the High Court which, if it is granted and I 8 the matter is lodged to the Court of Appeal all issues wil.1 have to wait for the outcome of that appeal. Coming to the Bill of costs, which is category one, (instruction fees) counsel for the Respondent submitted that the Bill is at a very high rate, imaginary and speculative. He stated that Tshs. 32,000,000/= is at a high charge and is not justified. He further submitted that the nature of the Reference No. 9 of 2009, the charge of such a large sum of instruction fee is not justified by the said complexity and time taken up by the hearing and arguments made in the Reference. He argued that there is no specific ' research involved in the said reference. Consequently, he ! submitted that, the said sum is not fair and a reasonable amount. The Bill to be fair and I modest, in respect of the instruction fees the applicants' advocate ought to have shown at least and clearly illustrated the nature and tl)e complexity of the reference, time spent and how much he charged per or so, books, journals and materials he needed and for how much time he submitted. ! ! i In relation to the time taken to get the reference as submitted by the counsel for the applicants, the learned counsel for the Respondent submitted that, the time taken to get the reference heard, should not be 9 taken to be the time the reference continued to be heard. He argued that · the date from filling to the date of determination of the matter is irrelevant but the time the matter commenced and continued with hearing. Therefore he insisted and urged the Taxing Officer that the amount of Tshs. i 32,000,000/= not be allowed under item I for want of proof. Regarding the third category, which is court attendance, the learned counsel conceded that the Bill should be Taxed at Tshs. 10,000/= for attending court for lodging documents and Tshs. 30,000/ = to receive a ruling which the reasonable. amount for attending the court for hearing 1 conceded to be Tshs. 200,000 / =. In his written rejoinder, counsel for the applicants in relation to the I time of lodging the bill of costs which stated to be subject of written submissions, he contended that the point is being one of preliminary objection ought to have been raised at the earliest opportunity according with accepted practice of raising a preliminary objection in any matter i i before the Court of Appeal. i 1 II iI I I ; i Ii 10 Regarding the service of bill of costs to the Respondent, the counsel for the Applicants insisted that it was timely served to the Respondent and that no issue was raised out of that, neither Advocate Rutabingwa nor Ms. Bigeye ever filed a notice of Preliminary Objection Challenging the competence of the bill of costs upon the bill of costs being served to them on 20 th October, 2010. He argued that, the bill of costs was filed in court on 18th October, 2010, and thus a period of seven days after the filing was according to the rules. Regarding paragraph 2 (2) of the third schedule to the Rules, the learned counsel submitted that the counsel for the Respondent wrongly interpreted the said para, for choosing some words in that provisions by stating that the mandatory requirement is to lodge the bill as soon as ' I practicable. He contended that, the counsel for the Respondent did not however expound on that, and say which period the phrase "as soon as practicable" contemplates. Consequently, he averred that, the interpretation of that provision by the Respondents' counsel has no legal reasoning at all. 11 i The counsel further. submitted that he expected the Respondent to have interpreted the following options in relation to para 2 (2) of the third I schedule to the Court of Appeal Rules, 2009. I (a) As soon as practicable after the making of the order for costs; or (b) Not later than twenty one days after a request in writing therefore by the party liable or ( c) In such further time as the Registrar may allow. The applicant's counsel in his interp~etation of the said para, stated I that making of the order for costs means that a bill of costs is to be I lodged after a formal order has been extracted from a ruling because the I formal order is like a decree which is executable and not a judgment. In relation to the service of bill of costs to the lia~le party not later than twenty one days after a request in writing he submitted that, it means that a party liable to pay the awarded costs has to send a I I request in writing to the wining party in respect of quantum of costs, and i after the request the party awarded costs has to lodg·e the bill not more than twenty one days of receiving the writtenI request. In 12 that, he narrated that the respondent cannot be heard to say that the bill was lodged outside the twenty one days of its written request to the Applicants. Regarding the assertion by the respondent that the bill of costs is I sub-judice, the learned counsel for the applicant submitted that Civil Reference No. 9/2009 in the Court of Appeal has no relationship what so ever with a matter pending or which existed in the High Court. l Regarding the amount claimed ,in item 1 which is Tshs. 32,000,000/= the counsel for the Applicant is praying the Taxing Officer to put into account what he submitted in his submissions in chief. He insisted that in the said submissions they detailed each grdund supporting the amount of Tshs. 32 m. and that the record is enough to show the complexity and nature of the .reference, the energy, and time spent on I research and preparation of the hearing. For the above stated grounds, the Applicants' prayer is to find merit in their submission and ptoceed to grant the bill as presented. 13 Now upon going through the submissions of both parties, I find the issue to be determined before me are:- I (a) Whether the application for bill of costs is time barred, (b) Whether the application for bill of costs is sub-judice, _ (c) Whether Tshs. 32,000,000/= fees is fair, ·. reasonable and justified. I Regarding issue No. 1, whether an application is time barred, in the ambit of Rule 2 sub of the 3 rd schedule to the Court of Appeal Rules 2009, I find the said Rule provides as follows:- '11 bill of costs shall be lodged as soon as practicable after the making of the order for basts or not later than twenty one days after a request in writing therefore by the party liable, or such further time of the Registrar may allow. " ; To my opinion, I think the words "as soon as Jracticable" as envisaged under the Rule above, does not specify specific a period, as to when exactly, the Bill of costs should be lodged. There is no time fjmit set as a time of filing. I quite concur with the learned counsel for the applicant, i . . I that a bill of costs should be filed upon a formal order has been extracted 14 from the ruling because a formal order is like a· decree. Therefore the words "as soon as practicable and making of the order for costs" as envisaged under para 2 sub .rule 2 of the Rules 2009, to me it depends on what time a formal order has been extracted and issued to a party. Coming to the case in our hands, the question to be asked is, when the formal order was extracted from the ruling in Civil Reference No. 9 of 2009? The record reveals, it was extracted on 26th August, 2010. The 2nd question is when did the applicant file a Bi'II of costs? It reveals that it was filed in court on 18th October, 2012, to wit, 53 days after the formal order had been extracted. In the case of EBENEZA MASAWE vs. THE PERMANENT SECRETARY MINISTRY OF WORKS AND ANOTHER, Civil Application No. 82 of 2006 C.A.T. (unreported) it was held that:- "Where the law provides no period of time thel Bill of Costs should be filed within sixty (60) days." \ I Consequently, from the above circumstances, and from the ~court authority cited above, I find the present Bill of Cost was filed in time. Therefore, the 15 I asse,rtion by the counsel for the Respondent regarding this issue, has no merit. l,1 i it ' I In relation to the argument that the Respondent was not served with the bill of costs by the .applicant within twenty one 8ay, I find that argument with no legs to stand on, as para 2 sub rule 2 of the Rule, it is crystal clear that, a party liable to pay award, costs has to send a request in writing to the winning party in respect of quantum of costs. [Emphasis is mine]. As the respondent was served with the Bill of Costs within time, and he failed to abide by the above Rule, he cannot say that the bill was outside the twenty one days of its written request to the applicant. Coming to issue No. 2, whether the application for Bill of Costs is sub-judice for the reasons averred by the Respondents that there is a pending application to the High Court, I do not think so. The taxation has nothing to do with the application alleged pending in the High Court. The Taxation in my hands resulted from Appeal against the Ruling and orders of a single Justice of Appeal in consolidated Civil Application No. 4 and 27 16 I r ! • of 2009. Hence, I don't see any relationship what so ev~r with the matter pending or existing in the High Court. Regarding the cost issue No. 3, whether Tshs. 32,000,000/ = claimed as an instruction fees is fair, reasonable and justified, I find the guidelines on what to be taxed as instruction fees are stipulated under Rule 9 (1) (2) of the third schedule to the Tanzania Court of Appeal Rules, 2009. The Rule provides that:- "9 {1} The fees to be allowed for instruction to make support as oppose any application should be such on the Taxing officer shall consider reasonable, but shall not be less than Tshs. 100/ . 9 {2} The fee be allowed for instruction to appeal as oppose an appeat shall be such as a Taxing officer shall consider reasonable, having record to ! the 17 • amount involved in the appeal, its nature, importance and difficulty, the interest of the parties, the otherlI costs be allowed the general conduct of the proceedings, the fund or person to bear the costs and other relevant circumstances." Again the question of instruction fees is restated in plethora of authorities. In SMITH vs. BULLER [1875] 19E Q473 it was held that:-! "The costs granted should not be excessive or oppressive but only as necessary for the conduct of i litigation. " In the case of PREMCHAND RAINCHAND LTD AND ANOTHER vs. QUARRY SERVICE LTD AND OTHERS [1972] EA, it was held that:- '!4n award of large sum as instruction fee will only i be Justified by nature of the case, its complexiti{ the I time taken up by the hearing or arguments, the amount of research involved etc." 18 • See also the case of HAIDER BIN MOHMED ELMANDRY AND OTHERS vs. KHADIJA BINT ALI SELEM [1956] EA C.A. 313. Now coming to the Civil Reference No. 9 of 2009, I have gone through that record, and taken into account all factors as elucidated in the case of PREMCHAND (supra) and para 2 sub rule 2 of the third schedule to the Court of Appeal Rules 2009, and found that, the nature of the application was against a decision of single justice of Appeal but consolidated applications. The matter was filed in the Court of Appeal which is supreme court, seven substantive grounds were argued well at the hearing where, obviously consumed reasonable time, and· the reasons advanced by the applicants persuaded the full court to reverse the decision ' of a single justice of Appeal. The Reference is voluminous with 189 pages su~ported by reported and unreported authorities. I have considered the nature of the application as submitted by the counsel for the applicants in para 3. 3 (e), (f), (g), (h) and (i) of his submission in chief and that the applicant engaged the services of two senior Advocates. Regarding the difficulty of the matter, I have put into account that, it is the Respondent I i who initiated an appeal process without joining therein /the 2nd and 3rd iI I parties in a counter claim worth 5.8 million. 19 • I Therefore for the above stated factors I find the work done by the applicant being solid and tiresome. In the case of Premchand (supra) it was stated that:- , i I i : 'jq successful litigant should be fairly reimbursJd the costs he has incurred, the taxing officer owes it to public to insure that the costs do not raise above reasonable level as to deny the poor acce$S to ! i court. The level of remuneration must as to attract new recruits to the profession. " With all the above in my mind, I therefore find myself constrained to agree with the applicant's claim. about instruction fees, and I am convised that a I fairly amount of time energy and industry were spend i~ prosecution of I Reference No. 9 of 2009 however the amount of Tshs. ;32,000,000/= claimed is certainly not commensurate with all the effort. In EAST AFRICA DEVELOPMENT BANK. Vs. !. BLUELINE ; ' ' I ENTERPRISES LTD, Civil Reference No. 12 of 2006, the Court of Appeal 1 observed that at page 8 :- 20 t • "our mission is to administer timely and affordable Justice to all in order to realize this well as to enable i all access to the court of whatever grade Justice ought to be cheap...... After all costs are not meant to be penalty, but to indemnify a successful party against expenses reasonably incurred in vindicating one's right " Upon putting into consideration all the above, I am satisfied that the sum of Tshs. 18,000,000/= in relation to item I, is only reasonable and I justifiable under the circumstances. Therefore, the first item, Tshs. 18,000,000/= is taxed accordingly and the rest is taxed off. Regarding the 2nd category which consists of item 1 and 3, preparation of 8 sets of record of reference for a total of Tshs. 600,000/= ! claimed, is too high, then only Tshs. 400,000/= is taxed accordingly and the rest is taxed off. In item 7 a total of Tshs. 200,000 / = is taxed as presented. Regarding a claim of Tshs. 120,000/ = being tpe amount for I I drawing a reference, although the 3rd schedule to the Rules does not 21 " prescribe specific amount for drawing up or preparing a reference and bill of costs, under para 11 Rule (1) of the third schedule to the Rule, the Taxing Officer has power to allow the costs and disbursement as shall I appear to him to have been reasonably incurred for t~e attainment of I I justice. Under the above circumstances the amount of Tshs. 120,000/= incurred by the applicant for drawing a r-eference is accordingly taxed as presented. Coming to the third category per item ?,, 4, 5 and 8 as contained in the scales 14, 15, 18 and 19 were not disputed by the Respondent. Therefore, a total of Tshs. 560,000/ = is accordingly taxed as it has been presented. In its final analysis, the bill of costs is taxed at Tshs 19,280,000/ = . and the rest is taxed off. It is so ordered. 22 • I DATED at DAR ES SALAAM this '-Ii day of October 2013. P. . ampik~a TAXING MASTER COURT OF APREAL ! ' I 23