19910629 TZCA Arusha

IN THE COURT OF ;\J?PE.,1L OF T .~NZ!iNJ:~ CIVIL :-.PPE:.~ NO, 25 OF' 1989 BET'.JEEN -:".RUSI-L'l i:. IBUCI:'f'jL COUNCIL • • • !1 PPELL.:UTT • • • (Decree-holder) ~-~ND LY.tU,rt1Y,A CONSTRUCTION CO. LTD • • • • RESPONDENT ( Ju.d@=lon t-da bt or) ----- R U L -I NG ./ I Tho decree holder .lrusha ~!iunioipali ty Oounci.1 thro>J&,b. their advocC\te Mr. Lobulu hos filed n bill of costs consisting I of 12 i ter.1s wl th n tot31 of Shs,· 802, 450/= • ... ..J The Judgencnt Debt ~ Lyoi::uya Construction Co. Ltd. were ropreso1;1ted by one Shayo fror..1 Shayo/Jonathnn & Co., ..ldvocatos based b.Gr.ein ..~ru. Ael if ho l=w t.hat .....u......... ,. - ·t+~ti,~...-..... ... a. would be a strong rosistanoe __..,.,.~,..,_•~nr~as, """-~ a.the flr11 it.en µaoaly inatru.Gtion to appeal, He stc1ted that tho appeal to the Court of llpponl was one of. tho nost oonplox one which involved tronendous rescnrch cs evidenced by the long list of au.thori i;.i,os whioh wns filed by tho nppollant. He furtnor su.br.1i tted th~t the appeal consisted. of ..fohr volunos su1jported by n hoop of nur.1bor · of oxhibi ts intended to be oxcr_1inod in the appecl. The CJunsel won·b on nnd sc.id that thG cor.1ploxi ty of this nppocl is _underlined by tho feet th?.t the respondent dcgidcd to cng2gc end instruct two very senior nnd :Jroi:~inont ~dvoc~tcs. Mr., Lobulu contended th:Jt although the r.::c,tter ••• /2 \ . ' . 2 - wcis rcs.)lvcd on the prclL1inr.ry point Jf l:::.w· the Decroo hJldcr is still cnti~lcd to tho full costs. Tho Counsel invited tho 3ttention of tho Court to THE LiR8YJ1 COOPBR ·.TIVE tmION (1968) HOD No. 173 whore it vils hold. that an instruction foe is for work done in preparing a c.:so before trial and therefore it is irralevant whether tho tri2.l i tsclf would or y;,ould 110t bo long and tedious. Tho l0arnod Counsel ~lso attrect·od the 011tontion of tho Court to nnothor c::.so of SI.tJm£. vs, ELI1\S (1972) HCD No. 66 whore Instruction foes wc.s defined to noe.n nnd cover not only tho attcnd2nce of a solicitor when ho t~kes his clients instruction but all his work otllor than that which is elsewhere specially provided for,. in lo:::>kine up tho law ~nd preparing the caso for trial. ri1r. Lobulu subnitted thnt iten No. 1 ~s his r:12rked instruction fees of which he pr3ys tho Court to gr~nt as intect as they are. Rog:;rding to Iten No. 10, tho learned Counsel ad:.·..:i tted the absence of receipts to support the cloin, but he insisted the s::.no to be a genuine clain of the w:::>rk done by his Socrotnrial staff in propc.rntion of the four V-:)lur:ies including the Stencils, d~blic~ting, printing, binding etc. ·He contended thc:t the rc·quested m.1ou."11.t under i ten 10 is in the lower side conpared with the W)rk done. On it01:: 8, 9 and 11 the Counsel subi1ittod th2t all the receipts arc acconpanod thereto~ RegGrding to Item 12 the Counsel stntcd that there are no receipts but it is clc~r 2ccJrding to the Court records that he did attend the Court 8S shom1. -::=i:: .... ~v ... ,;;- 3 - r.Ir. Lobulu pr~yed the C-ourt to tax the rest of the i tens according to the scale provided by the law. In resisting tho sub□ission onde by the Counsel for the · I'ecrec Holder, r::r. Shayo Senior for rosp:mdent stctcd that the Cl:ppellant hs.d filed 12 gr'Juncls of nppe3i and thcrc~fter abandoned 10 of then; only two grounds were argued. He further subni tted that in the result the nppe2l to'.)k only l1.c.lf en hour. Iir. Sltayo suh.:1i tted that tho tv.xing :Jfficer have 2. duty to see c:;:,sts do not rise to unr.e2.son2.blc level. However tho Counsel conceded that the respondent filed 4 VJlur::cs in the High Court but insistcd•th'.lt that should be c..:>nsidorcd in the High Court. Furthcn:iore ho conc0ded th~t two ddvoc2.tes _were instructed by the respondent but that is ir:r:.c.tcrinl cmd should not be considered. · Nir. Shayo referred to the cc.so of StJr.:1NRICKS if_~.• SI':TITH (1950) ~\11 ER 550 in which the 1)rinciple on how the to.xing officer s!nuld exorcise his duty w3s -laid. The Counsel subr:.1i ttod th2.t the purpose Jf · c:,sts is cor.:pensnt.Jry. 2.nd not punitive. He thus, prayed th0 0-Jurt to reduce tho c::>Sts to the extent Jf leveling it with the work d:me. Quating :pcra 9 and 12 ::,f the Third Schedule to tho Tcnzo.nia CJurt of . .;ppeal Rules, 1979 tho C·Junsel suggested instruction foes to be Shs. 100,000/= instcc.d Jf Shs.750,000/=. Mr. Shayo further reLlindod the Court that in tho judgenent of· the Court of .:1ppe3l at the l::.st p~ra it is clearly shown thnt the appellant is entitled t0 be paid by respondent only ¾of the costs of the case b'Jth in the Court of ~ppo81 and the High Court. T~crefore he preyed the costs to be reduced accordingly. .••• / 4 - 4 Regarding to Itora 4, Hr. Shayo · subci ttocl th~t such a claira is not provided under p2ra 9 (3) of the Third Schedule to the T2nzani8 Court 0:f l~ppce.l Rules, 1979. .i\lso iten 10 is not supported by 2ny receipt cmd therefore they sh.)uld be struck off. rEr. Shayo pr.~.yod th0 bill to be reduced so JS t·o rGflect the rens~nablenoss. In a short reply l'~r. Lobulu for tho Decree Holder sub'~ittcd that tho duty of the taxing officer is to consider whr:1t is before hin and not to bcire his decision 011 speculatto~. The Counsel donounoG-d tho c.lnil:.lS r.1c.do by I'.'r. ShG.yo ·Senior that 10 gr.)unds of oppe.Jl were 2b2ndoncd. The Councol rcquostod the Court. to peruse tho record mid tho ruling of the Court of .i'ippoal which indic~:-.te clo2rly that the first two tsrounds were arguod ns prolL:iinc1ry points. This, h2:d they fc:iled on the said two gr'Junds they w)uld li::-•.ve OJnsidored 2.11 the rei.:--.nining 10 gr0unds ~f appeal. Nr. L:::>bulu further contended that what 2ctually matters in taxation is the prcp2rctions invJlved in the ~ppoal end not .h-ours spent in Court. ..:~t tho and th0 Counsel for the Docroe t°lbJ- Holder re.quested the. o.~urt ·t) discourage tho Counsels by I\ . . gr:mting too low feos :::>r too high fees. J.u tho above argunonts potray, there is a [;;onuine qu::1rrol between the Counsels. I 2croo with Nr. L'.:>bulu on the volU.i:J.o of work done by his office. I als'.) suppJrt mJ.d 2.i:,prcci3tc. the oitod c.uthori tics by hin, i .o. U.jag'J.r Sigh Vs. Mbeyn Cooporati v0 Ltd. ( 1968) HCD No. l 73 and Si-:mga Vs. Elias (1972) HOD No. 66. • •. /5 5 On tho other hand I r:..1iro0 with r:ir. Shayo Senior that tho ar.:1-:>unt pr2iy.cd for in ItcD l is n bit too serious. However, I ar.1 convinced that th,::.t m:1ount is not so exec ssi VG to the point of reducing it to Shs. 100,000/= ns suggested by FT. Shayo. The!ofora, having consido;r-cd all the ar{sW:.:ont fror.1 both pnrtics I tax off Shs. 200,000/= on i ter.1 l and Gllow Shs.550,000/=. I ton 2 ho,ve got tw•'.) parts i .c. Instructio11. to file notice of appeal Shs. 60/~ and pro~oring Notice of hppeal Sha. 15/=. Thore w2.s no qu.:i.rr0l on this i tsm. _I theroforo t:.:i.x it as presented to the tune '.)f Shs •. 75/=. !ten 3 was not contested and therefore I t2x it os presented Shs. 500/=. Itcu 4 w-1s objoctod by E.r. Shay'.J on the gr-'.)und that perus3ls aro not providGd sop3rJtcly for under the taxation rulos. I ngrcc with 1.Ir. Shayo because p0rus2ls are· included unclor instruction foes as sh·Jwn under P2.rn 9 (2) (3) of The Third Sohodulo to tho Tanzania C::>urt of .,~pp0al Rulos, 1979. Iton 5 to 9 ~re taxed 2s presented and nllow a total of Shs.• 26,250/=. :11 th:JUJ,h there aro no receipts to supp0rt i ten 10 it is a fa~t that there w2s a serious preparations of records as shown. I therefore tax off Shs. 9,825/= in itoD 10 and allow Shs. 10,000/=. Iton 11 is hereby t~xod as presented Shs. 500/=. Regcrding ite □ 12 transport to and frmn the Court, I disagree with nr. Shayo th2.t such item is covcr0d under Para 9 '\ (3) or' tho Third Schedule to the rules. I am convinced that att0ndanc0 foes a~~ trunsport fees are two different things • •••/6 6 'II. ThorcfJro · although thoro 2.rc no receipts t-:> support i teo 12, th0 Court roc)rd is clcsr that tho Decree Hold.er WZ!S attending the Court r:md ccrtninly ·usinG nc~ns of transport. I therefore tax o'ff Shs. BOO/= on i ton 12 ond .:Jllow Shs. 4,0OO/=. In tottJ:l.. the □l":1.JUJ."'1.t t[\xod off in this bill of costs is Shs. 211, 125/= ~nd ai:10unt 8.llowcd is Shs.SSn,325/=, Tho order :,f the Court of .iippcal clearly directed that the appolle.nt be entitled to be paid by respondent¾ of the c:,sts of t~1is Court and in the Court below. Therefore, the appellant is entitled to only¾ of the bill of cost. That \ is•¾ of Shs. 591,325/= which cr..1ount to Shs. 443,493.75 •. For avoidance of ~ny doubt the appellant is entitled to be paid by respondent Shs. 443,493.75 only.· D,\TED at ARUSW1. this 29th day of Jtmo, 1991.