201600506 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA AT DODOMA TAXATION CAUSE NO. 2/2014 (Arising from Land Case No. 1/2007) DEO MUTTA ................................................................APPLICANT VERSUS TANZANIA TELECOMUNICATION CO. LTD ........ a ■ •••••• RESPONDENT 20/4/2016 & 6/5/2016. RULING M. J. CHABA, TAXING MASTER: Deo Mutta herein the Decree Holder lodged before this Court a bill of Costs against one Tanzania Telecommunication Company Limited herein the Decree Debtor claiming a total of TShs 5,540,000/=. When the matter came up for hearing on 30/03/2016, the Counsels ._ for the Decree Holder Mr. Kidumage and Judgment Debtor Mr. Nyabiri respectively, preferred the matter be heard by way of written submissions. 1 In his written submissions, the Decree holder through the service of Mr. Kidumage submitted that he Decree holder when prosecuting Land Case No. 1 of 2007 was residing at Mailimbili area within Dodoma Municipality and he used to travel from that area to the High Court herein Dodoma and to the Advocate's Chamber's for various activities related to the conduct of the above mentioned Land Case. To support his argument Mr. Kidumage asked this court to refer items No. 1 to 12 as indicated in a bill of Costs. He said, in all these items the applicant / Decree holder spent or incurred as costs TShs. 123,000/=. The receipts thereof are annexed to the filed bills of costs. Mr. Kidumage went on to submit that during prosecution of the said case the Decree holder called two witnesses who came and/or appeared to testify before the Court hailing from Bahi and his name is called Henry Kakulwa who was being transported by the Decree holder and given accommodation by him thus the money he spent did amount to TShs. 70,000/= for two (2) days just as indicated in item No. 8 of the bill of Costs. Mr. Kidumage said, the relevant receipts have been attached on the bills of Costs. Mr. Kidumage goes on to tell this Court that at the time of instituting and prosecuting the case in question, his client paid various Court fees as indicated in items 4 and 8 of the bill respectively. The money incurred is TShs. 62,000/= the relevant receipts have been attached. 2 On top of the fees, the Decree holder paid consultation and instructions fee to the Advocate who was in conduct of the matter as shown in items 13, 14, 15, 16 and 17 respectively. The money incurred as costs is TShs. 5,280,000/=. Again, Mr. Kidumage told this Court that the relevant receipts has had been attached to support his argument. Mr. Kidumage ended to submit by telling this Court that in total his client claims from the Judgment debtor a total of TShs. 5,543,000/= being the Costs that he incurred during prosecution of the above mentioned Land Case. In reply to the submissions put forward by Mr. Kidumage, Mr. Nyabiri, went on to submit that the bill of Cost filed .by the applicant is not only too high, but also lack essential explanations. According to him, it appears that the applicant was not living a normal life in relation to this case. In respect of items No. 1 to 12, Mr. Nyabiri submitted that the costs indicated thereof are not only improperly incurred as it is known that the applicant could have used normal bus/public transport and not taxi, but also there is no explanations as to whether in all instances taxi owners were always waiting for the applicant to return him to his home. Mr. Nyabiri did pose a question to the effect that why always the applicant used taxi from the same firm? According to him, this is unbelievable. He submitted and prayed that the money to be taxed as transport should be 3 on the basis of Public transport which is TShs. 500/= for a single trip and not taxi rates as claimed by the Decree holder. Regarding Henry Kakulwa~ Mr. Nyabiri went on to submit that in the Judgment in Land Case No. 1/2007 was recorded as witness No. 3 and that at the material time was staying at in the house of the applicant or Decree holder. He said there is no any explanation as to when he shifted from the said house and when he went to reside at Bahi. He submitted that the claims relating to taxi fare and fare to Bahi and accommodation at DM Guest House in item No.a, should be taxed off as the same has not been proved. In addition to that there is no receipt in respect of transport from and to Bahi. In respect of item No. 14, Mr. Nyabiri submitted that the claims thereof is unreasonable since drawing up of a plaint is part of instruction fees, according to him, the same cannot be claimed separately and it is exorbitantly high. A claim of TShs. 300,000/= is untenable. He said, claim for instruction fees should be pegged at 3% of the decretal general damages and not at the whims of the applicant. Mr. Nyabiri put reliance of his argument under Rule 45 and Schedule IX of the Advocates Remuneration and Taxation of Costs Rules, GN. No. 515 of 1991. 4 He goes on to submit that if the law aforesaid is abided to, then the instruction fees in respect of the items No. 15 and 16 of which is TShs. 4,300,000/= will be taxed off and the proper amount will be TShs. 1,450,000/= only. The reason behind is that the matter was heard ex-parte and it was not contentious. Mr. Nyabiri ended to submit by telling and praying before this Court that instant taxation be done in accordance with what he has submitted and not to the extent of the applicant's submissions. From the foregoing written submissions by the two Counsels, I have in mind that the costs are always awarded as reimbursement for expenses reasonably incurred. In this regard, two considerations must be taken into consideration, one, the Cost must have been incurred and secondly, the cost must have reasonable incurred. Now, coming to the first group of payments which relates to the bills of costs that the applicant incurred during travelling from Mailimbili area to the High Court and to the Advocate's Chamber as indicated in items No. 1 to 12, the applicant produced the relevant receipts to prove that his argument is genuine. Though on the other side the Counsel for the respondent vehemently challenged the amount of money claimed by the applicant on the ground that the same were not only improperly incurred, but also there is no explanation to justify the claim. 5 As I have note above, I am of the view that since the applicant has shown the relevant receipts to justify his claims in respect of the Costs or expenses that he spent on transport during the prosecution of his case, I thus proceed to tax the amount claimed as shown in items No. 1 to 12 of the lodged bill of Costs i.e. TShs. 123,000/=. In respect of TShs. 70,000/= being the Costs for transport, item No. 8 shows that the applicant spent some money when travelling from Mailimbili area to the High Court herein Dodoma and to the office of his advocate. In total as far as item No. 8 in concerned, he spent TShs. 41,000/= and not TShs. 70,000/=. The available receipts show to that effect. In that view, I tax TShs. 41,000/= only. Regarding items No. 4 and 11 of the bill of costs Mr. Kidumage submitted that his client incurred a totai of TShs. 62,000/= being taxi fare from Mailimbili area to the High Court and filing of a Plaint. These amounts of money are hereby taxed as charged, that's TShs. 62,000/=. Coming to the last payments that relates with items No. 13 to 17, Mr. Nyabiri submitted that the percentage to be considered has been stated in Rule 45 and Schedule IX of the Advocates Remunerations and Taxation of Costs Rule, GN No. 515 of 1991. According to him, if the law has to be abided to, items No. 15 and 16 respectively, which are the instruction fees 6 TShs. 4,300,000/= has to be taxed off and the proper amount to be taxed is TShs. 1,450,000/= only. Looking at the heading of Schedule IX of Rule 45 the schedule deals with the scale of fees of contentious proceeding. for liquidated sum in original and appellate jurisdiction. To my understanding, I don't think if the stated percentage has a place to apply as far as this matter is concerned. As submitted by Mr. Kidumage his client spent as indicated in item No.13 to 17 a total of TShs. 5,280,000/=. Upon a scrutiny I find the figure to be taxed is TShs. 5,280,000/=. About item No. 18 I tax off as the same is baseless. Hence, in the upshot, I am satisfied in my mind that the total amount to be taxed is TShs. 5,506,000/= as bill of costs incurred by the Decree Holder during prosecution of his case namely Land Case No.1/2007. It is so order. (M. J. CHABA) DEPURT REGISTRAR 6/5/2016 7 Ruling delivered today on the 6th day of April, 2016 in Chamber Court in the presence of Ms. Sophia Gabriel, Advocate for the respondent who also holding briefs for Mr. Kidumage, Counsel for the applicant / Decree Holder. (M. l. DEPURTY REGISTRAR 06/05/2016 Right of Appeal fully explained. DEPURTY REGISTRAR 06/05/2016 8