20011024 TZHC Dar es Salaam

This is Annexture ____ j __ . ,. ,. ,.,. IN THE HIGH COURT OF TAN~A'Nf~ to in Para .. __ J.___ . (DAR ES SALAAl\1 DISTRICT RFMIBiliR#/41..€!7?£.f.<'.'~~... AT DAR ES SALAAM .... --- MISCELLANEOUS CIVIL CAUSE NO.135 OF 1995 BLUE LINE ENTERPRISES LI1\1ITED .......... APPLICANT Versus EAST AFRICAN DEVELOPMENT BANK .. . . . . RESPONDENT RULING The Decree Holder Blue Line Enterprises Limited through their Counsel MIS Mhango and Company Advocates presented a bill claiming TShs. 114,991,465/56. Apparently this bill was hotly contested and that can be deduced from the vividly researched submissions from the two Parties hereto, as I shall venture go through each of them. i I Submitting on behalf of the · Decree Holder-counsel l\1hango observed that the petition admittedly has a long historical period dating from 22 nd November, 1995 to 14/1/2001, involving a colossal sum of US Dollars 12,877,437, upon which the decree holder also managed to compute the instruction fees claimed (of Tshs. 114)51 ,640/56 accounting to be just 1% ) i of the subject matter). He further submitted that disbursement accounted for a sum of 25,500/= while items 2-103 accounted for. TShs. 401,450/= inclusive of the 50% additional on all item except item one hence calling for . a grand total of TShs. l l 4,99 l A65/56. · · Counsel iv1hango added that the bill presented is goven1ed and/or regulated by Rule 40 and schedule XI published as Government Notice No. 575/1991 with particular regard to para 1 (h) of schedule IX, adding that pafa 1 (h) of schedule XI is a residuary head. To support his · · preposition he had in mind the case of Nguyuki Esso Services vs. Touring Sports Cars Limited (1972) East Africa 500 where the Court of Appeal had this to state if I may respectfully reproduce ,,, his quotation "In dealing whether a claim falls under any particular head one must look at the substance of the claim and not to the way it is expressed but if a claim or any part clearly does not fall under any particular head it must be treated under one of the residuary heads", he instanced the present matter to that acquatancy. (In the light of that finding). The counsel did not end there, he went ahead to plead upon the taxing masters to invoke his discretion observing ·as was propounded in various cases mentioning in particulars Prechand and Richard Limited and Another vs. Quarry Services of East Africa Limited and Another [1972] East Africa 162, where the Court of Appeal for East Africa Law thus to conphesion (a) That of successful litigant ought fairly to be reimbursed the costs he had to incur. (b) That general remuneration of Advocates must be such as to attract worthy peanuts to an honourable profession. (c ) That costs are not allowed to confine access to the courts to the wealthy and (d) That there must be so far as is practicable consistency in the awards made. There he underscored for the Taxing/Masters'. Fair consideration whilst invoking his direction, the bottom line being that the Taxing Master should do so in the light of the peculiar facts and factors of this case. Whereby he went further and submitted that in the light of the matter at hand the peculiar facts and factors thereto was that the petition interake was lodged to free the fleets or trucks belonging to the decree holder from receivership so as to enable arbitration proceed but while the decree holder was to have continued conducting business for five years the judgment debtor resisted the decree holder's application including the release of its 2 fleets from receivership. Mr. l\1hango further listed additional legal issues which he considered were quite intricate and contentious attributing to the complexity and intricacy of the matter. Fmther justification if I may safely as_smne reference being made to the colossal sum; l\1r. Mhango did cite the case of Slanga Vs. Elias [19721 HCD No.66 in which bramble, J. quoted the judgment of "'ebb CJ in the matter of Stamp Ordinance 1931 and The Buhemba Mine Limited l\1iscellaneous App. No. 1 of 1940 which Samatta, J. (as he the was) also quoted the same with approval needless to re-quote from the submission but basically Mr. Mhango was inclined to underscore the scope of instruction fees which are intended to cover not merely the attendance of an Advocate when he takes his clients instructions but also all his work other than that which is elsewhere specially provided for, in looking up the law and preparing the case for trial in other words and for purposes of his case inference was that they correspondent rightly to the fees marked on counsel's brief. He finally prayed that the bill be taxed as presented. Then followed the strong challenge from Capt. Kameja. Capt. Kameja rose with the 1st attack upon item 1, stating that the instruction fees claimed is fictitious and exorbitant. Fixation because, no where in the petition is the amount of USD 12,877,437 or for that matter any swn of money is seen to have been pleaded, he added by stating that whatever the case may be the amount of USD 12,877,437 cannot be the basis for detennining the instruction fees in a petition where no amow1ts of money has been pleaded, hence the preference to the tenn. fictitious. Exorbitant because for purposes of the present bill he observed that the right provision to have been used was rule 40 and schedule XI paragraph 1 (j) not 1 (h). Which he considered is not applicable to the tabled bill hereto, that paragraph 1 G) of schedule XI to which counsel l\1hango's d~fended bill of cost ought to have been addressed upon prescribes a minimal instruction fee of TShs. 3,100/= (subject of course to the taxing officers desertion w1der proviso (1), to the said paragraph. Counsel (Capt. Kameja) inclined as he was, had no objection to the cited judicial decision, as was cited by his lean1ed brother which he of course subscribed to, through however he hastened to observed that much as it is true that the interlocutory proceedings raised several legal issues but none of those were or had peculiar intricacy, neither could they be said to have called for ingenuity to resolve them. 3 Capt Kameja similarly denounced the preposition that even the fact of engaging two lawyers/advocates does not in itself qualify the matter to being complex. I quite agree to that preposition too. I'm inclined to concede that, that could definitely be a manifestation of ones ability in tenns of resources and funds etc. He concluded on the aspect of engagement of counsel by stating that the petition at hand whose sole purpose was to force the matter to go to arbitration was a straight forward petition which did not necessitate to engage two Advocates. He added fu1iher that neither is the fact that the petition lasted more that five years an indication that it was complex further that neither is the complexity of the matter demonstrated by the number of pages, since one could say in one sentence what it takes another person to state in five sentences. The counsel for the judgment debtor Capt. Kameja observed that admittedly though it could be true that a successful litigant ought fairly be · reimbursed the cost he otherwise incurred, but it is equally true that the purpose of taxation is neither to penalize the unsuccessful litigant nor the opportunity for self enrichment by the successful party. He for one found TShs. 500,000/= to be quite adequate. Counsel Capt. Kameja challenged item on making copies and Transport as being speculative and/or fictitious because of labeling a standard figure/scale and went fuiiher to advocate that even if should the taxing master elect to exercise his endowed discretion and allow unreceipted cost for making copies of documents and unreceipted transport cost respectively but either way, the costs would be either fictitious or speculated. He extended the argument that the decree holder cannot seriously expect anybody to believe that the true and actual cost of coping one page of a docmnent was the same in 1995 i.e. TShs. 50/= as it is or was in 2000 (TShs. 50/=) and so applies to transport whereby the decree holders seemingly imports the notion of charging transport of TShs. 2000/= for every attendance in court over a period of five years from 27/11/1995 to 14th December, 2000 (see item 101) on ward coming down to items 75, 76, 95 and 96 which relates to court attendance (transport inclusive). Capt. Kameja observed further that on 25 th February, 1999 and 22 nd November, 2000 the court's record will show that there was no attendance in 4 court by the decree holder on those dates:- observingly - However I have noted that items 95 and 96 relates to preparing of bills of cost and making copies thereof (of 4 X 3 = 12 pages) rather not court attendance. That, as for items 107 and 108 cost incun-ed thereto are evidenced by one and the same receipt though now they are shown represented by one ERV receipts marked by No. 03515210. The counsel advocated that those items be taxed off. Coming to item 114 i.e. the 50% on all items except item 1, the counsel observed challengingly that, that charge is not supported by the rules. In his final rejoinder counsel l\1hango reiterated back by stating that to say that the proceedings had no pecuniary value is to deny the very basis of the dispute, that the judgment debtor's Advocate despite holding that no where is the sum of USD 12,877,437 pleaded but stated that that was incon-ect because, the same is a creature of annexture A one (Al), to the petition. Silnilarly being mentioned iJ.1 the supplementary Debenture Annexture "Bl" and the supplementary Loan Agreement annexture 81, which all make reference to the figure (USD 12,877,437). Hence counsel Mhango dis1nissed the concept of having a fictitious subject matter pecuniary value. Equally defended by counsel Mhango is the instruction fee itself pegged at 114,315,640/56. Stating that it is not at all exorbitant all in connection· to rule/paragraph 1 (h) and provision (1) to that paragraph l(j) where it was stated that they do not apply in a matter falling under the Arbitration Ordinance. Counsel Mhango simply had this to say, that if the definition of a suit is as provided under Order IV rule I of the Civil procedure Code 1966, then the definition of an application iJ.1 the said code must also be looked at because Order XLIII rule 2 clearly states that every application made to the court shall be made by a Chamber Swmnons supported by an affidavit, and he observed further that with greatest respect to his learned colleague the applications he is otherwise refen-ing to, are the ones covered by order XLIII rule 2. They being interlocutory proceedings or applications and the instruction refers to such application. The bottom line of Mr. Mhango's concern is that a Petition is a fonn of a suit whether it is under the 5 Arbitration Ordinance (Cap. 15) the law of Marriage Act 1971/or a Miscellaneous Suit under the fatal accidents (Miscellaneous Provision etc) Ordinance Cap. 360. hence he finally in his lengthy reply observed which inclined to concede to, that a petition is a plaint and the argument that it should be treated as an application has no basis in law. He dismissed the challenge relating to the use of two Advocates that, that was an un-necessary importation in the argument of Capt. Kameja, because they for one in computing the instruction fees that was not a factor for consideration. Likewise regarding perusal of document, the counsel observed that the idea is misconceived because perusal of documents is not related to obtaining instructions hence it is not true that they fall under instruction fees he prayed they be taxed as presented. Relating to transport, counsel Mhango observed that it is well known that that taxi drivers do not issue receipts and hence no receipts are available and further that the rate of taxi charges per trip is well know in the city to be 1000/= per trip. Counsel Mhango admitted to the error exposed in relation to item on disbursement that is the used of the same receipt on two diverse occasion. And as regards the 50% item, but prayed the bill to be taxed as presented. I hasten to cmmnend both counsel for their well argued submissions. Admittedly, they have laboured with much in-depth in trying to expose the interpretative concepts of carious rules and provision of the applicable laws. Nevertheless, and without prejudice to either submission but I am more inclined and convinced with counsel's Mhango's line of argument. It is misconcemed, I believe, to hold that the proceedings to which the bill of costs relates have no pecuniary value, as earlier on remarked I stand by counsel Mhango's reply to this challenge with respectful regard to the Annextures that fanned part of the petition as underscored herein. So while I do not agree with counsel Capt. Kameja that the appropriate rate is 500,000/= of which he did not state how he arrive at the computation, I otherwise find that, the instruction fee pegged at 114,351,640/56 to be reasonable and fair. I however agree with counsel Kameja that item 114 i.e. 6 the 50% addition on all items is not supported by the rules, I accordingly tax it off. As for the disbursement item, relating to the receipt otherwise used twice, I do not hesitate to tax it off at the cost of the counsel's own negligence. The oversight caimot be excused. As for transportation cost much as no receipts are tendered in line with counsel l\1hango, its evident such trips were made to court and is over a stretch of a period of 5 years. The figures are reasonable a11d fair, I tax as presented. Save for the items on disbursement relating to the identical receipts being used twice, a11d the 50% item additional to all items except item one of which I have accordingly taxed off, the rest of the items are taxed as presented. The bill is therefore taxed at TShs. 114,720,120/= (Shillings one hundred a11d twenty shillings only). For avoida11ce of doubt M/S Blue Line Enterprises is entitled to cost taxed at TShs. 114,720,120/= to be paid in his favour by tl1e Judg ent Debtor - East Africa Development Bank. It is so taxed. \, UNGI GISTRAR 2001 24/10/2001 Coram: F.S.K Mutungi - DR For the Decree Holder: Mr. Mhango For the Judgment Debtor: Mr. Buberwa ~ for Cap. Kameja Court: Ruling reads this 24/10/2001 in court by F.S.K. Mutungi - DR, in the presence of counsel Mhango, for the D ·ee Holder a11d one, counsel Buberwa - for Capt. Kameja for the Jud ent Debtor. F.S DIS RAR 1 7