20021205 TZCA Dar es Salaam

.J .LJ IN TPIE COURT OF AE?;~AJ., ©F 'rANZANIA ~~------~•...- AT DATI k'S BALA/uv1 . .•. ,...,.. ~ 1 CIVIL APPBAL NO. 3 OF 2002 Cil~RLIB MAil.\iA \;JAHBUHA. • • • • .APP..8LLANT ... AND NATIONAL BANK OF COMMEHCE • • • ll!I..SPONDZNT RULING ..., . . . ,4, •• ,r....r~-"--.-.....S MWA1UJ.Al1.i:AXING OFFICDR: -~----=-~_.............&..#~..._._~ This bill of costs has been filed by the Appellruit Charles Marwa Wambura. His Civil Appeal No. 3 of 2002 was fi.::ed for hearing on 12/7/2002 but on .that date the Appeal could not· proceed because the respondent did not enter appearance~: .. The Appeal 1.-1as adjourned to another date to be fixed and the . · Appellant was awarded costs of the Adjournment. Following the • order awarding him costs, he has filed this bill of costs for taxation. In his. bill of costs., he is clairi;ing for a total of Shs. 61 1 344,000/:;·;• . In substantiating that claim, he argued· that the amount claimed is the costs· of subsistence for himself t his six children, wife and mother. He elaborated that _the amount was arrived at by using the rate of J?!_£._d.i._~ wllich is 60t000/= plus 2CP/4 of that amount being incidental costs. for himself, his wifo,. mother and}~ rate of that amount ::-:or six children. According to him, the re'spondcnt 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 forr:1er employer, :Ls clnty boun4 to pa:y him the .said subsistence allowance because he has not b0cn repatriated to his home at Tarime • 2 The Respondent was represented by Mr. Ja:nhuri 1 karn0d Counsel. In roply the l0arfo)d Cou.1"1.s0l clicputod the mctnnor :in i1hich thu costs have been claimed. Apart from challcne;ing the use of the rates of subsistence allowance :instu:'l.d of the scales as provided by tho Court of l\.ppeal Rules, ho .submitted that the costs which were m•;arded v10r~ those :incurred by the 1\ppolle.nt alone and not other persons. He o.lso 2ubmittod that the costs should be only those costs which were incurred on the da.te when the Appeal was adjourned· and not othurwise. Ho cited the provisions of R. 118 (2) of the ~fanzanin Court of Appeal Rules 1979 (bcrc:inaftor rofcrred to as '··tho Hules;;) nnci item II (c) of tlw 3rd schedule to tho :Rules. He was oI tho view t:u.'1.t such rcasonn.blo costs which the i~ppellant is entitled ore- the fare from his hor;w at To.rime to Dar es Sc1.lanr.:1 und n maximum of 4 days in Dar es Salcv.:u:1 n.t a rate of Sb.s. 20 1 000/:--= per d::i.y c,s \:oll a.s return fare to Tar:i.r,10. Other costs would have been proved through the production of receipts, tho learned Coun:,el further argued. Responding to sub:11ission by the lenrnccl Counscl 1 the App0llcm.t reiterated his stnnd that tbG costs wl1ich he was aware.led arc those which Dre to enable hir,1 and his dopench.mts to stay :in Dar cs ,Sal1.:1am from the d:.,te of o.d.journrnent until the date of hco.ring of hi.s oppen.l b.:mcd on tho r.-:itos of subsistence o.llownnce. It is his sub1;1ission that the applicable: 1~atos under th0 circunstc,ncos o.rc tho cubsistence allo1;Ja11co r:..tes been.use the raks fixed by the Hules ore only applicnblo where: the nppcal has been dctcrr:1:inod. • •• /3 .. , '• . L· r ~: .. ':.' ii 1.· ( .. 'i.1 \ With clue respect to tbo i.ppellant, the taxation of costs is govcrnod by tho provisions of' the Hulos 1 Hul(~ 118 ( 2) provides as follows:-A • ;;The cm3ts shall bo taxccl m nccordancc with the rulos and scale set out in tho Third r.:;ch0dule of these Hules': Obviously thorcforG 1 when costs are o.wardocl to a pa.rty, the taxation of the s.::u:fo 1i1ust be done in c1.ceorda11ce with the Rules and scale as p1~ovidcd above. 'l'horo cro no different .scul0s for fina.lizcd appea.ls frou the pcnd:i.Dc; ap1x)o.ls or a~,plicF.1tions. The rates of .P.~E-.C-liJEl. can howevor only be usecl CtS 2- euidc to establish rcnsone1blo oxpcnsl.::S whore it is proved that the conce:c11ed party hod to stay c..wny fro:11 his honw nncl could not rnrumge to e0t receipts with rcp;ard to :;x,iyine1:.ts for accomuodo.tions and men.ls. The Appellant h::tB stated thnt be is still st&ying in Dc:ir cs .Setl.::i.nm since hiG torminc..tion and it is cloer thoroforc tho..t he uttonded tho bearing of the nppoal form his homo. This mnkes the cl:d.m of per lliem to lack merit, But the uain point which the. app~llnnt is insistinr; is tbc.t he had b0011 in D:Jr cs So.lanr.1 SL':.cc l,.is tcrr11inc1b.ori onr: it is the cluty of his fon.1,::;r crnploy"r, the respondent, to pay him J.?.CL..~<=l.~ from tho c..ht0 of acljournr,10nt to the next hearing c..J.tc of his appeal which is on 30/11/2002. He stntrn that thoGc arc the costG which was aw2.rclcd to him because it \vO.S because of the c1djoun1JJ8nt that be hinir,olf, hi:3 foraily and dependants had to continue incurring oxpenso.s of rotayinc; in Dar cs ;Jal3.am. • •• /4 4 ,I 1m unable to i.l'lclilw to the "lppcllCuJ.t 1 s unclcrst.:mding of the costs which he wets ~iwnrdcd. In the first pla~c, the cla.im of .E.S!~~cli,.9m frorn the date of termination to the date of his repatriation to his home at 'l'arir.10 seer:is to b0 the subject matter of the 1,1::;.in suit and the i,p1;cal. Now to bring the so.nw as costs of n.djourni:1cmt of c.ppc.:tl appears to r,ie to bo bringing the same claim for ,vhich I have no mandate to dee icle. Secondly the expenses which arc to be allowed by a t.:.,:xing officer should not cover persons who 2..re not partios to th<;; ctppeal or cl.Y,Jilicettion or those othe:r persons who did not nppoc:.r as witncssos or those who 11.::,.vc not been ordered by the court to be pc:.ic1 their expenses of attending tho appe;::1ls or application. This is contai:-1.ed in the cle,3r provisions of pCU'Cl.grn.ph 19 of tho third schedule to the Rules, which states:- ;:The ti:,.xi..n.g officer shall -c.1.llow tho reasonnble cxp8l:1'38S of a party who ap}Jonrcd in person c,t tho honi-ing of an a. pplic,:.t ion or o..ppoal and those of a wi tno.ss who 2ppoo.red i..n. person o. t the huaring of an :.:,1::i:r,lic2,.tion or apj_Jcal 2nd those of a witness who gave evidence c:.t any such ·heurfog ,:mt .sh:i.11 not allow the expenses of o.ny person who E1c:J.y have nttondctl tho hearing, unless the court htl.S so ordered.·: On the b,.,sis of tho above tho ap1jollant 1 s cbm of costs for his wife, mother r:mcl six children frou the elate of a~ljournmont to the next hearing date stated earlier is wfuthout rncr·it :::,:;:1d c.-:umct be taxed rtB roasono.blc expenses incu.r:,·ecl as a result of ncljournrnont of tL,e i~ppco..l. • •• /5 I. " 5 ,. In □y considorcd opinion, the ronsono.blG co,:;ts which tho i~ppcllnnt is entitled DIC: tboG0 which he; pcrnonally in.curred cmd .' only on the chte when his c;:i20 w:IB ncljournc:cl. 'l'he:,y r,re the costs of fa.r-o to ::i.nd fro the cow.·t, lunch ::-incl costs of attendance. li.s ;.,,•-•·•n,lft', the ;ippcllt:nt 1K1D not of nssist::taco in 0c,t::i.bliskiz1g 9osts on tho ncuncd expenses, but rn.thcr 1:1uintn:ining thGt they cu.·e covorud by 2(1}6 claim of his tob.l cla:i.D of .l?.2.!•.~(,~i':FJ, I hor0by t:J.x tbo c oG ts on tho b.:1sis of wh;:it I find to be c:111 nvurng0 applicn.ble r~1tes of tho f.:::ro ,.:nd rneuls in D::.,r cs Letl.::torn. I take the: ave:ro..f:SO to.xi fare to be between .She-;. 3,000/, o.ncl 1·0 1 000/:::. The meo.ls butwoen 4 1 000/::: l nnc.l 10,000/=. The mnximum costs of i..,ttoncling coui·t under the 3rd schedule to the. Rules, ( if he had bec:n in court for 8 hours) is .Shs • 1 1 000/=0 ( 150/..: for the first 30 m:inuks £mcl 50.00/::: for o.:i.ch subscquent 30 minutes). On the b.:,.sis of the .::i.bovc therefore taking the mnxil;rnrn rt1.tcs the costs will be Bhs. 20,000/~ for t.::1.xi fo.re (to nnu fro), Shs. 10;000/s luri.ch oncl Sl-:i.s. 1 1 000/::: nttenda.nce. /-.s there cnn be other incidcntc.ls I think it \,1ill ;-,mot the justice of' the co.so if I tnx Sb.s .• 50 1 000/~: as rcc.sona.blu costs :L.1currccl ns oxp(mscs co.used by o.djourru:1e11t of tho ~-..ppcn.l. 1';.ccordingly, the Lppcllci.nt 1 s costs is hcrc,by Li.xecl .:1.t Shs. 50 1 000/:::. It is so or(1.ero<.l. D,..T.GD at D~J; ~! ;ri .:.!.Jij SJJ__,,-.iJ1 this 5th clo.y· of Docer:1bor, 2002. ·i . /:;u). ( l~oG• tJ/;,.JUJJ. ) . S.l~NI0H DllPUTY IL~GIS'l'}Uill 'ri\.X.Dif G OFE1Cj~ft .......... _....-=--.....,.,.-.....:..~---&....----... ,. '