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IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM .CIVIL APPLICATION NO. 66 OF 1999 BHP MINIERALS INTERNATIONAL EXPLORATION INC ................................... APPLICANT AND JOAS KABETE & 10 OTHERS ................... RESPONDENT I ' R U L I N· G ---------------- MWARIJA, TAXING OFFICER In this Bill of Costs, the respondent through the services of its Advocate Mr. Rutabingwa, Learned Counsel, claims for a total costs of shs.12,250,000/=. The bill has been itemized into 15 items. Under items 1 & 2, the claim is for instruction to defend Civil Application No. 66/99 and to file Civil Application No. 87/99 respectively. The claim under each item is shs.5,000,000/=, hence a total claim of shs.10,000,000/= for the two items. Under items 3, the claim is for shs.20,000/= and is in respect of drawing of the Notice of Motion, Counter Affidavits and Affidavits in reply regarding Application No. 66/99. The claims for the costs of drawing have also been preferred in items 4 and 8. While the costs under item 4 is for shs.50,000/= and is in respect of drawing Notice of Motion, Counter Affidavit and Affidavits in reply regarding Civil Application No. 87/99, the cost under item 8 is for drawing the bill of costs and the amount claimed is shs.15,000/=. Item 5, 6, 7, 9 & 10 are in respect of court attendance and the claim for each attendance is shs.10,000/=. Items 12 -15 are in respect of disbursements which amount to a total of shs.12,000/=. The other claims in the bill of costs are the amount of 50% of the total costs except items 1 and 2 and 20% of the total costs being the amount payable as Value Added Tax (VAT). In the course of hearing of the Taxation however, Mr. Rutabingwa, Learned Counsel dropped the claim in respect of VAT as, according to his submission, his firm is no longer covered by the requirement to pay VAT. The same is therefore hereby taxed off. In substantiating the costs claimed, Mr. Rutabingwa submitted that both Applications were fully contested and that the subject matter in dispute in the High Court was valued at shs.136,275,488/=. He thus prayed that the bill be taxed as presented except the item concerning VAT which he had dropped. The Applicant was represented by Mrs. Makani, the Learned Counsel. In responding to the submissions in respect of the costs claimed, her submission is that, except for the disbursements which are receipted, the costs claimed in other items are on the high side. 2 According to her, the cost to be awarded must be such costs as the taxing officer shall consider reasonable as provided for under paragraph 9 of the 3rd schedule to the Court of Appeal Rules, 1979. She . submitted · that the fact that the two applications were consolidated· during the hearing should be considered in the taxation of costs presented. On the basis of the above submissions, Mrs. Makani, Learned Counsel was of the view that whereas the reasonable costs to be awarded as instruction fees under items 1 & 2 should be shs.1,500,000/= for each Application, Costs for items 3, 4, and 8 should be shs.5,000/= for each item. As to items 5, 6, 7, 9 and 10 concerning attendance, Mrs. Makani submitted that, the Court of Appeal being an efficient court, it usually doesn't unnecessary take long to the parties to wait before their cases are heard. She was therefore of the view that shs.5,000/= for each item . . is reasonable. As to item 11 which is a claim of an amount of 50% of all items except items 1 & 2, Mrs. Makani submitted that the same should be taxed off as it has no legal basis. Replying to Mrs. Makani, Mr. Rutabingwa submitted that the fact that the Applications were consolidated did not serve him from the use of energy and time in preparing himself for the two Applications. He stated that it was at the stage of the hearing that the Applications were consolidat_ed. He maintained that the instruction fees of shs.5,000,000/= for each Application is not on the High side. 3 He however said that there could be some reductions on other items and that such reductions should be left for the discretion of the taxing officer who should decide what amount is reasonable. On the claim of 50% of all items except 1 & 2, Mr. Rutabingwa's reply was that such used to be a practice but again he left to the taxing officer to decide. Having heard the Learned Counsel for the parties, I now proceed to determine the reasonable costs which the Respondent is entitled to be awarded. To start with items 1 & 2, I agree with the Learned Counsel for the Respondent that although the two Applications were consolidated during the hearing, since the Applications were filed separately, the Learned Counsel had to prepare for each Application and therefore it is obvious that much energy and time was spent. This is more so because appearance before the Court of Appeal, the Highest Court of the land needs a thorough preparations. Consideration has been had also to the value of the subject matter which the Learned Counsel for the respondent was defending. Despite the above considerations, however, I have considered the amount of the Instructions fees claimed and I agree with Mrs. Makani, Learned Counsel that considering the nature of the Applications, the costs are somehow on the High side. In my considered opinion I find shs.3,500,000/= for each Application to be the reasonable costs. As to the costs of drawing documents, I find that the costs presented are reasonable and I tax items 3, 4 and 8 as presented. Regarding attendance, I agree with Mrs. Makani that 4 shs.5,000/= per attendance is a reasonable costs. This is because, as correctly stated by the Learned Counsel, it does not usually take long for the parties who appear before the Court of Appeal to wait before their cases are heard. As to items concerning disbursements, since the same are receipted, I tax them as presented. Now about item 11, the Learned Counsel for the Respondent has submitted that it used to be a practise that on taxation, an amount equal to 50% of all items except instruction fees is usually awarded as part of the costs. The costs to be awarded must be such costs as shall be found to have been reasonably incurred by a party. If there is to be added 50% of those costs then there should be a legal basis to support that award. As there is no legal provision to that effect I tax off that claim. In the end therefore the bill of costs is taxed at shs.8,122,000/=. It is so ordered. ' ,~~ ~ . A. G. Mw~, SOR-CA TAXING OFFICER .. \ . 4: ,/'J N ) "" . __... ~.,. , ____--~- )~•-. _: _ - 5