20210427 TZCA Dar es Salaam

,) IN THE COURT OF-APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 143 OF 2014 BETWEEN AGATHA SAM BALI ........................................................................ APPLICANT VERSUS L:EOPOLD BULONDO .......·.. ......................................................... RESPONDENT RULING Date of the Last Order: 08/03/2018. Date of the Ruling: 11/05/2021 A.H. MSUMI, DR TAXING OF,FICER On 28/08/2017, Mr~hony Mark, learned Advocate filed Certificate as to Folios together with the Bill of Costs (the Bill) on behalf of Agatha Sambali, h ~ to be referred to as the App'iicant (the original Respor:ident in Civil Application No. 143 of 2014). The Bill was against Leopold Bulondo, herein also to be r€ferred to as the Respondent (the original Applicant). The Bill has 13 items charged at a total of TShs. 37,121,500/=. When this matter came for hearing on 08/03/2018 Mr. Mark, ·teamed Advocate appeared for the. Applicant whereas the . Respondent was represented by Mr. Theodori Primus, ·1earned Advocate. Mr. Mark informed the Taxing Officer that he wishes to abandon items 3, 4, 5, 6, 7, 8, 9 and 10 1 '. ~7 '1:__ii_,'.cf,•!J:.c_ ~ ~. _:::c_ '-,' :·~ ' : '' ' ' ' ., !. / of the Bill and remain with items 1 ( instruction fee to defend (he case I '. l 'i charged at TShs. 30,000,000/= ), 2 (Preparing and Filing Notice of Address for service charged at TShs. 150,000/=), 11 (Preparing and Filing ofAffidavit in reply of Civil Application No. 143/2014 charged at TShs. 150,000/=) and 12 (Attending Court for Hearing of the Civil Application No. 143/2014 charged at TShs. 100,000/= ). During the hearing, Mr. Mark submitted that the extent of charging TShs.··30,000,000/= und~ item 1 of the Bill is't:lue to the fact that there wer.e several Applications filed and determined in the span of ten years befor.e Civil Application No. 143 of 2014 which was withdrawn. He -added that the claimed amount reflects time which was taken in Court. On the part of the Respondent who was represented by Mr. Theodori Primus, learned Advocate, he submitted that the taxation proceedings at hand emanates from Civil Application No. 143 of 2014 which never went on merit as it was withdrawn. He added that, it was not correct to peg all other costs to the proceedings at hand, that each one should have its own taxation_ proceedings. 2 / · By a way of a rejoinder, Mr. Mark reiterated what he submitted earlier and added that the Application led to the present taxation proceeding is a result of other Applications and if each will be attended separately, there will be a lot of Applications. Now, there is no doubt that the Application which led to the present Bill was withdrawn. It never went on. merit. The guiding principles in determining instruction fee were laid down in the case of Premchand RijJnchand Ltd and -~nother versus QlJarry Services of Ii:•·:·East Africa Ii;;. . .:,,.- Ltd and Others (1972) EA 162 and later on amplified in the case of ;. Registered Trustees of the Cashewnut Industry Development Fund versus Board of Tanzania (2011) EA 407. "Factors to be considered according to those two cases were the bulkiness of the appeal, the difficulty and importance of the case, amount involved in the suit and whether there was any extensive research needed building up the preliminary objection which might have necessitated any additional energy expended. The issue of there being a number of other Applications before the one subject to this Appeal is not among the provided factors. It should be clearly understood that the instruction fee cannot be 'handsome awards' rather they are by definition reasonable amounts to the 3 ,. ~-.;;!": . "'.:1 I victorious for reimbursing costs in reflection to a particular order of the Court. That is the other meaning which the case of Premchand Rainchand (Supra) provides that, ' ... successful litigant ought to be fairly reimbursed for costs he has had to incur'. I see no reason to overstretch the incurred costs to include other Apptications without there being an expr~ss order by the Court directing the same when making an order tor withdrawal. 1 ·believe that is a reason taken by the Counsel for the Applicant when he opted to '; abandon items 3 to 10. Therefore, the charged TShs. 30,000,000/= is her.eby ta)(ed down to TShs. 5,000,000/=. ,•. Turning to item 2 (Preparing and Filing Notice of Address for service charged at TShs. 150,000/= ), it was Mr. Mark~s submission that the same is a reasonab~e amount. He thus prayed that the same be taxed as presented. Mr. Primus response was that no such a Notice was med in the Civil ·Application-No. 143 of 2014 and therefore he prayed the same to be refused .. Basing on what I found in determining item 1, my reasoning is the same. It is improper to associate some costs which were not specifically . awarded by the Court. The same is hereby taxed off. 4 Regarding item 11 (Preparing and Filing of Affidavit in reply of Civil Application No. 143/2014charged at TShs. 150,000/=), it was once again a very brief. submission by Mr. Mark that the same should be taxed as presented~ On the other hand, Mr. Primus controverted the above claim and correctly made reference to the provisions of item 4 of the Scale of Costs under the Third Schedule to the Rules which provides that, ' ...For draw1ng an affidavit, for each folios or part thereof ... TShs. 10,-000.' By a way of a rejoinder, Mr. Mark generally submitted that the matt€r was heard in the ti:•: ~•:· ct:•:· ti:•: .., .. y€ar 2017 and the Rules were published in 2009. He added that, inflation should be taken in consideration as there -some increase of costs. I certainly agree that costs of living kept on raising with time. However, at least there could some detailed explanation as to how the ~earned Counsel for the Respondent arrived to TShs. 150,000/= from the statutorily provided 10,000/=. This should not'·hold me longer. I h€reby tax it down to TShs. 10,000/=. The remaining amount is taxed off. Lastly, it€m 12 (Attending Court for Hearing of the Civil Application No. 143/2014 charged at TShs. 100,000/= ). It was Mr. Marks' submiss1on that the same be taxed as presented. Mr. Primus once again rightly made ref€rence. to item 18 under the scale of costs which provides for TShs. 5 ----/ _; / • I~ I / 30,000/= for the first 30 minutes. It was his submission that the matter was ended in ten (10) minutes and therefore a reasonable amount shouid be TShs. 10,000/=. By a way of a rejoinder, it was Mr. Marks' submission that costs for attendance is not in relation to the time spent for hearing. Once again, once there is an explicit provision of the law, any other additional costs should be categorically explained. On the other hand, item 18 under the Third Schedule does not provide for a sca~e when hearing is done in 1~.s than 30 minutes.J_ therefore tax down. the charged amo4Dt to TShs. 30,000/= . ,.• In the upshot, the Bill of costs at hand is hereby taxed down to TShs. 5,050,000/=. The remaining amount is hereby taxed off. DATED at DAR ES SALAAM this 27th day of April, 2021. A.H. Msumi TAXING OFFICER The Ruling delivered this 11 th day of May, 2021 in the absenc€ of the applicant and Mr. Heriolotu Boniface, learned counsel for the Respondent, 1s ~ ,.·. ! .. ~- .. ;.~· .-- /.· ~ . hereby certifi~d __ ~s\:1 lrUe-copy of the original. • ~ ,f • . . ;I 'f: . ~n---, .. \ .- L::-')ir -· ' '\.·.':·.-~,-- . , . G. H. Hkrbert -·oEPUTY REGISTRAR .\ ----..,_. ~~:-- · COURT OF APPEAL 6