NA TZCA Dar es Salaam Stecy2

-- IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 3 OF 2002 BETWEEN CHARLES MARWA WAMBURA ......................... APPELLANT AND NATIONAL BANK OF COMMERCE ................ RESPONDENT RULING ----------- MWARIJA/TAXING OFFICER: . This bill of costs has been filed by the Appellant Charles Marwa Wambura. His Civil Appeal No. 3 of 2002 was fixed for hearing on 12/7/2002 but on that date the Appeal could not proceed because the respondent did not enter appearance. The Appeal was adjourned to another date to be fixed and the Appellant was awarded costs of the Adjourned. Following the order awarding him costs, he has filed this bill of costs for taxation. In his bill of costs, he is claiming for a total of. shs.61,344,000/=. In substantiating that claim, he argued that the amount claimed is the costs of subsistence for himself, his six children, wife and mother. He elaborated that the amount was arrived at by using the rate of per diem which is 60,000/= plus 20% of that amount being incidental costs for himself, his wife, mother and ½ rate of that amount for six children. According to him, the respondent is supposed to pay him that amount from the date of adjournment of the Appeal to 30/11/2002 when his Appeal comes up for hearing. He argued further that the respondent, his former employer, is duty bound to pay him the said subsistence allowance because he has not been repatriated to his home at Tarime. The Respondent was represented by Mr. Jamhuri, Learned Counsel. In reply the Learned Counsel disputed the manner in which the costs have been claimed. Apart from challenging the use of the rates of subsistence allowance instead of the scales as provided by the Court of Appeal Rules, he submitted that the costs which were awarded were those incurred by the Appellant alone and not other persons. He also submitted that the costs should be only those costs which were incurred on the date when the Appeal was adjourned and not otherwise. He cited the provisions of R. 118(2) of the Tanzania Court of Appeal Rules 1979 (hereinafter referred to as "the Rules'') and item II(c) of the 3rd schedule to the Rules. He was of the view that such reasonable costs which the Appellant is entitled are the fare from his home at Tarime to Dar es Salaam and a maximum of 4 days in Dar es Salaam at a rate of shs.20,000/= per day as well as return 2 .. fare to Tarime. Other costs would have been proved through the production of receipts, the Learned Counsel further argued. Responding to submission by the Learned Counsel, the Appellant re-iterated his stand that the costs which he was awarded are those which are to enable him and his dependants to stay in Dar es Salaam from the date of adjournment until the date of hearing of his appeal based on the rates of subsistence allowance. It is his submission that the applicable rates under the circumstances are the subsistence allowance rates because the rates fixed by the Rules are only applicable where the appeal has been determined. With due respect to the Appellant, the taxation of costs is governed by the provisions of the Rules, Rule 118(2) provides as follows:- "The costs shall be taxed in accordance with the rules and scale set out in the Third Schedule to these Rules" Obviously therefore, when costs are awarded to a party, the taxation of the same must be done in accordance with the Rules and scale as provided above. There are no different scales for finalized appeals from the pending appeals or applications. The rates of per 3 .. diem can however only be used as a guide to establish reasonable expenses where it is proved that the concerned party had to stay away from his home and could not manage to get receipts with regard to payments for accommodations and meals. The Appellant has stated that he is still staying in Dar es Salaam since his termination and it is clear therefore that he attended the hearing of the appeal form his home. This makes the claim of per diem to lack merit. But the main point which the appellant is insisting is that he had been in Dar es Salaam since his termination and it is the duty of his former employer, the respondent, to pay him per diem from the date of adjournment to the next hearing date of his appeal which is on 30/11/2002. He states that those are the costs which was awarded to him because it was because of the adjournment that he himself, his family and dependants had to continue incurring expenses of staying in Dar es Salaam. I'm unable to incline to the Appellant's understanding of the costs which he was awarded. In the first place, the claim of per diem from the date of termination to the date of his repatriation to his home at Tarime seems to be the subject matter of the main suit and the Appeal. Now to bring the same as costs of adjournment of appeal appears to me to be bringing the same claim for which I have 4 .. no mandate to decide. Secondly the expenses which are to be allowed by a taxing officer should not cover persons who are not parties to the appeal or application or those other persons who did not appear as witnesses or those who have not been ordered by the court to be paid their expenses of attending the appeals or application. This is contained in the clear provisions of paragraph 19 of the third schedule to the Rules, which states:- "The taxing officer shall allow the reasonable expenses of a party who appeared in person at the hearing of an application or appeal and those of a witness who appeared in person at the hearing of an application or appeal and those - of a witness who gave evidence at any such hearing but shall not allow the expenses of any person who may have attended the hearing, unless the court has so ordered." On the basis of the above the appellant's claim of costs for his wife, mother and six children from the date of adjournment to the next hearing date stated earlier is without merit and cannot be taxed as reasonable expenses incurred as a result of adjournment of the Appeal. 5 • In my considered opinion, the reasonable costs which the Appellant is entitled are those which he personally incurred and only on the date when his case was adjournment. They are the costs of fare to and fro the court, lunch and costs of attendance. As the Appellant was not of assistance in establishing costs on the named expenses, but rather maintaining that they are covered by 20% claim of his total claim of per diem, I hereby tax the costs on the basis of what I find to be an average applicable rates of the fare and meals in Dar es Salaam. I take the average taxi fare to be between shs.3,000/= and 10,000/=. The meals between 4,000/= and 10,000/=. The maximum costs of attending court under the 3rd schedule to the Rules, (if he had been in court for 8 hours) is shs.1,000/= (150/= for the first 30 minutes and 50.00/= for each subsequent 30 minutes). On the basis of the above therefore taking the maximum rates the costs will be shs.20,000/= for taxi fare (to and fro), shs.10,000/= lunch and shs.1,000/= attendance. As there can be other incidentals I think it will meet the justice of the case if I tax shs.50,000/= as reasonable costs incurred as expenses caused by adjournment of the Appeal. Accordingly, the Appellant's costs is "--· hereby taxed at shs.50,000/=. It is so ordered. . A. G. Mw~( SDR-CA TAXING OFFICER 6