20130516 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 182 "B" OF 2007 1. COCA COLA KWANZA LTD 2. INNOCENT MUSHI_ ................................................... APPLICANTS VERSUS ANNA YONAZI MFINANGA {As Administrator of the estate of AMANI YONAZI MFINANGA) ............................ RESPONDENT (Application for revision from the decision of the High Court of Tanzania at Dar es Salaam) RULING MARUMA, DR/TAXING OFFICER The decree holder presented a bill of costs at a total of Tsh.12,680,000/= in respect of 11 civil application no. 182 "b of 2007.The bill of costs containing 22 items whereby-item number two to item number twenty two were not disputed at all. Mr. Mzava for the decree holder presenting his arguments submitted that the charges in item no. 1 as instructions fees should be taxed as presented since the amount is fair due to the time taken to resolve the matter before the court of appeal which took about four year, the complexity of the matter concerning the revision of the matter which involved a lot of research to determine whether the matter was tenable or not. However due to the fact that the matter was disposed at the stage of preliminary 1 • point of objection they decided to charge only 10,000,000/= as a reasonable amount taking into consideration the time involved. Supporting his submission Mr. Mzava cited the case of George Mbuguzi and another Vs. A.S. Masikini 1980 TLR pg 63 on principles of taxation and the Schedule II of the High Court. On the other hand Mr. Nyange represented a judgment debtor did strongly opposed the submission made by Mr. Mzava. He submitted that there are rules specifically applied for taxations in Court of Appeal which requires the taxing master to consider the reasonable costs incurred and not the amount of money advocate has charged the client. According to him the nature of application subject to taxation was revision and it was not heard on merit as it was disposed at on the stage of preliminary objection raised and the application was not complex as claimed and insisted to refer the ruling thereof. On the issue of time taken, Mr. Nyange submitted that it is true that the matter took four years but the question was how many times the parties appeared in court which should be considered in determining the costs. All in all according to Mr. Nyange what should be considered are the costs incurred in executing preliminary point of objection raised by the decree holder which disposed the matter thereof. In his rejoinder Mr. Mzava insisted on the work involved in preparation of preliminary objection which consumed time and energy including the time for appearance in court and making of follow up therefore the amount presented is should be considered. Going through the record there is no dispute that the appeal was disposed off through the preliminary point of objection which had been raised by decree holder. The only issue to be determined in this bill of costs is whether the amount presented as instruction fee is reasonable to be taxed. At this point I agree with Mr. Mzava that in determining a bill of costs the aspect of amount of work which has been done, the complexity of the matter and time taken should be taken into consideration as the authority he cited above and it is the fact that 2 preparation of Preliminary Point of Objection did consume energy and time as well as time for the appearance in court. But what I am not agreeing with him is the principles which he presented for the determination of the costs. I would like to remind Mr. Mzava that the matters of taxations before court of appeal are governed by the Court of Appeal rules scheduled in the third schedule of Court of Appeal Rules, 2009 and not otherwise. In the Third Schedule under para 11 on Taxation of Bills, Taxing officer is directed to tax what have been reasonable incurred by a party and not what have been charged which it seems to be overpaid, over cautioned, excessive etc. On the above view I am totally agree with Mr. Nyange that a taxing master is required to consider the reasonable costs incurred by a party to handle the matter and not the amount of money advocate has charged the client. On the basis of the above provision, I am of the settled mind that taking into account the nature of the matter and the manner it had been disposed off the amount of Tsh. 5,000,000/= is reasonable to be charged as instructions fees incurred by the decree holder. Since other items from number 2 - 22 were not disputed by the judgment debtor should be taxed as presented, I therefore taxed a bill of costs at a total of Tsh.7,680,000 /=. It is so ordered. Dated and Signed on 16th May, 2013 Z.A.~ DEPUTY REGISTRAR COURT OF APPEAL 3