20051103 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 98 OF 2002 BETWEEN C. R. D...! B. LTD ................................................... APPLICANT AND TANGANYIKA INVESTMENT OIL & TRANSPORT COMPANY LTD ............................. RESPONDENT RULING ------------ ----------- WAMBURA/TAXING OFFICER: This taxation matter arises from an order of this court dated 19/2/2004 striking out with costs a notice of appeal ~under Rule 82 of the court Rules, 1979 for failure to take essential steps in instituting the intended appeal. The notice of appeal was filed on 5/12/2004. The bill of costs and certificate of folios were accordingly filed on 6/5/2004. ·, 2 i ' At the hearing of the matter it was prayed by Mr. Kashumbugu who was holding briefs for Mr. Mwandambo for the applicants and Mr. Chipeta for the respondents and agreed by the court that counsel should file their written submissions in writing. The same has been complied with. I thank the counsels for their compliance. In the ···) respondents submissions we have the normal prayers of having the bill of costs taxed as presented. Only that he prayed that the subtotal in item A reads Tshs.6,017,000/= instead of Tshs.1,200,000/=. He further prayed to abandon the claim of Tshs.1,440,000/= as VAT from the bill of costs. It has been submitted that Tshs.6,000,000/= as instruction fee (;_~& was reasonable and fair in that a lot of research was done in preparing to argue the appeal and later in an application to have the same struck out. The amount of not less than Tshs.100/= stated in para 9 (2) of the Court Rules, 1979 was on the very low side which is not enough even for a one way town bus fare today. He thus prayed that he be granted Tshs.6,000,000/= as it was the amount paid by applicant to its advocate for resisting the appeal and -. - -' . . - .. -.,,,..,._.,. 3 prosecuting the application. He also prayed that items 2, 3, 4, 56 & 48 be taxed as presented at e.i. Tshs.109,000/=. Submitting that in Civil Application No. 103 of 2004, Blue Line Enterprises Ltd. V. East African Development Bank {unreported} this court granted transport costs at Tshs.20,000/=. In his reply Mr. Chipeta submitted that the instruction fee was on the high side praying it be reduced to between Tshs.1,000,000/= and 2,000,000/= which would be reasonable. He prayed so because the matter ended at a preliminary stage. As no appeal was filed the applicants did not spend their energy on preparing for it. He also objected to items 2 - 5 saying they~ are on the high side agreeing to pay Tshs.3,000/=. Items 6 + 7 he said have been filed in anticipation while they have not been paid so should taxed off. He further submitted that Civil Application No. 103 of 2004, Blue Line Enterprises Ltd. V. East Afr!can Development Bank {unreported} is distinguishable from this one in that costs have to be verified. ·-r--· ♦- ... 4 Mr. Chipeta said he does not object to items 10, 11, 12 & 13 so long as they are substantiated by the necessary receipts. He prayed to have item 9 disallowed as it is exorbitant. Since this taxation originates from an order of stricking out the appeal for failure to take essential steps in instituting the appeal within the prescribed time, I wondered if this matter is in it self within the prescribed time. The answer is obtained in para 2 (1) and (2) of Rule 118 of the 3rd schedule of the Court of Appeal Rules 1979. It provides and I quote . "2. . (1) Where costs are to be taxed, -the advocate for the party to whom the costs were awarded shall lodge his bill with the taxing officer and shall, before or within seven days after lodging it, serve - - - ~ ~ - - - - - - - - - - - - - - - - - - - - - ·--- ______ , ....... __ 5 a copy of it on the advocate for the party liable to pay it. (2) A bill of costs shall be lodged as soon as practicable after the making of the order for costs and not later than twenty-one days after a request in writing therefor by the party liable, or such further time as the Registrar may allow". I have failed to understand if para 2 (2) was in the alternative (ty of para 2 (1) or not. The issue here is who should-. be said to be "a party liable". Is it a party liable to be paid or a party liable to pay? For purpose of being granted costs I would think it is the party who is liable to be paid for no one is granted anything without praying for it, a probable cause of having the para 2 (1) in place. The judgment debtor has no costs to pray for and therefore is not expected to file anything. ' 6 \ I Be it as it may in this case none of the provisions has been complied with, that is para 2 (1) which provides that the bill of costs should be filed within seven days, nor para 2 (2) which provides that the same should be filed not later than 21 days and no request was ' ··· ) made to the Registrar to extend the same. What should then be the .. , - ' position of the same in the circumstances? Though Rule 8 of the Court Rules provides for extension of time, no party has prayed for such extension. However, I believe the same can be accommodated as the bill of costs was filed within three months which is reasonable compared to the notice of appeal which was filed in December, 2001 but up to February, 2=004 no essential steps where taken in instituting it. One could even assume that negotiations were going on between the parties. I thus accept the bill of costs filed. Having found so then I will now look into the grounds for granting or taxing off the bill of costs as presented. In doing so we 7 are guided by the provisions of Rule-118 para 9 (1) and (2) of the 3rd scheduled which provides: "9 (1) The fee to be allowed for instructions to make, support or oppose any application shall be such sum as the taxing officer shall consider reasonable but shall not be less than Shs.100/=. (2) The fee to be allowed for instructions to appeal or to oppose an appeal shall be such sum as the taxing officer shall - consider reasonable, having regard to the amount involved in the appeal, its nature, importance and difficulty, the interest of the parties the other costs to be allowed, the general condu~t of the proceedings, the fund or person to bear . ' 8 the costs and all other relevant circumstances". From the above provision then I agree with the respondents that the amount of Tshs.6,000,000/= as instruction fee is too much and on the high side for an. application to strike out a notice of appeal. I thus tax off Ths.5,000,000/= and grant Tshs.1,000,000/= only. As for items 2 - 6 I grant them as they have been presented. Items 7 - 8 are not granted as the advocate has not paid for the same yet as provided for in para 4 (3) of the Court Rules, 1979. The ([;) total sum in subtotal A then remains at Tshs.1,017,0O0/= only. As for items 9 - 13 no receipts have seen provided for to substantiate the same. Para 4 (2) provides and I quote; - - - - - - ~ - - - - - - - - - - - - ~ - - - · - - - - -- ---· ·- . I•· • 9 "4 (2) Receipts for all disbursement shall be produced to the taxing officer at the time of taxation". So it is not for the Taxing Master to peruse the court files to ascertain the same. The law calls for their production and examination of the other party as well. That is why courts issue receipts. I thus tax of the whole of subtotal B amounting to Tshs.109,000/=. At the end of the day I grant costs at Tshs.1,017,000/=. Dated at Dar es Salaam this 3rd day of November, 2005. S. A. N.,W~~SDR-CA TAXING OFFICER