20170425 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPLICATION NO. 60 OF 2016 1. DONATIAN MV\/EMEZI 2. HEZRO.N CHACHA KEHENGO ............................. ~ ......... APPLICANT VERSUS TANZANIA TOURIST BOARD ............................................. RESPONDENT (Bill of costs arising from the decision of the Court of Appeal of Tanzania at Dar es Salaam in Civ. Application No. 97 of 2012) dated the 31 st day of August, 2011 ..in Civil Application No. 60 of 2012 RULING KAHYOZA, TAXING OFFICER: The applicants, Donatian · Mwemezi and Hezron Chacha Kehengo hereinafter referred to as applicants filed a bill of costs in respect of Civil Application No. 57 of 2012. The applicants' bill of costs contained seven items where an amount of Tshs. 7,063,700/= was claimed. The respondent is Tanzania Tourist Board. The brief background of the matter is that the respondent lodged an application for revision seeking the Court of Appeal to revise the decision of the High Court. The applicants engaged the services of Mr. Kamara learned advocate to oppose the application. The applicants' advocate filed written submission and raised a preliminary' objection featuring four points of objection. The respondent conceded to the preliminary objection and the matter was struck out with costs. It is from that order for costs the applicants filed this bill of costs . .. 1 I will commence with items which are not disputed i.e items nos.2-5. totalling to Tshs. 40,000/=. Those items refer to transport costs to and from the Court. They are taxed as presented. I will now consider items Sa-7 where an amount of Tshs. 26,700/=was claimed as costs for stationeries. The respondent's advocate neither supported nor opposed the said claim. On the other hand the applicants' advocate prayed the amount to be taxed as prayed. He submitted that advocates are engaged to perform professional work and not to undertake secretarial work. It is in my view settled as provided by sub-paragraph of the Third 'Schedule that, an advocate can· claim costs for drawing documents basing on scales provided. The said paragraph provides that- "The fee for drawing a document shall include the preparation of all copies for the use of the party drawing it and for filing and service when only one other party or one advocate for other parties has to be served; where there are additional partie~ fees may be charged for making the necessary additional copies. " The scale provided for drawing the documents in question is Tshs. 5,000/= per folio. Given the nature of the documents drafted which are a submission in reply and a document raising a preliminary objection, I am of the firm opinion that the amount claimed is reasonable. I tax items Sa-7 as claimed and for that reason amount of Tshs. 26,700/= are awarded in total. That done, I will consider item no. 1 where an amount of Tshs. 7,000,000/= was claimed as instruction· fees to oppose Civil Application No. 97 of 2012 in the Court of Tanzania. Arguing in support of the application, the applicants' advocate stated that an amount claimed was below 3% of the decretal sum. He submitted 2 that he contended that three (3%) percent of the decretal sum which was Tshs. 267,931,035/= is 8,037,913/=. He submitted that the amount claimed was below · three percent rate provided by the Advocates Remuneration and Taxation of Costs Rules G.N. 315/91 Schedule IX. He submitted that much as the said law was applicable to matters· before the High :Court ,he was allowed to rseek ·guidance. He averred that he was entitled to seek guidance on the ground that the Court of Appeal Rules governing taxation of costs do not provide for any scale for taxing instruction fees. He cited in support of his contention the case of Registered Trustees of the Cashewnut Industry .-Development .:Fund ·vs. Cashew.nut Board of Tanzania Civ. Ref. 4/07 (CAT Unreported) where the Kalegeya, J.A stated that 1 'However in my considered vie£¼ this does not preclude a taxing officer from making reference to the suit amount .... Neither is he barred from seeking guidance from whatever angle that may assist in arriving at a befitting amount This would also include seeking a leaf from the experience and procedure obtained in the High Court // The respondent's advocates strongly opposed· the argument the Advocates' Remuneration and Taxation Rules (cited above) may guide the taxing officer of matters in the Court of Appeal. It will be noted here that the Advocates' Remuneration and Taxation Rules have been repealed and replaced by the . . . . Advocates' Remuneration and Taxation Order G.N. 263/15. Given the above principle stated in the case of Registered Trustees of the Cashewnut Industry Development Fund vs. Cashewnut Board of Tanzania (supra), I have no doubt in mind that rnuch as the Advocates' Remuneration and Taxation Rules now 3 the Advocates' Remuneration arid Taxation Order G.N. 263/15 does not apply to taxing of costs in relation to matters in the Court of Appeal, a taxing officer may seek guidanc·e from those Rules. Hence, the applicants' advocate was entitled to refer a taxing officer to seek guidance from the scales _provided by the Advocates' Remuneration ~md Taxation 'Order G:N. 263/15. 1 That said and done, I will determine how much is the applicants' advocate entitled as instruction fees. The applicants' advocate submitted that he was entitled to the -amount claimed as the. matter .was tasking·,and ,basing··on,the resear:ch he conducted. He averred that he made a research and raised four preliminary points of law which he filed together with a written submission and list of authorities. He added that it was his detailed submission and the list of authorities he provided, that forced the respondent's advocate to concede to the preliminary objection. The respondent's advocate vehemently opposed the applicants' advocate's submission contending that that the matter was not complex. He contended that had the matter been complex the applicants' advocate would have -explained its complexity. He added that the fact that the documents filed by the applicants' advocate were bulky does not imply that the matter was complicated rather it showed that he had no economy of words. It is settled as to what things ought to be taken into consideration when taxing a claim for instruction fees. Sub-paragraph (2) of paragraph 9 of the Third Schedule to the Tanzania Court of Appeal Rules, 2009 provides that- "The fee to be allowed for instructions to appeal or to oppose an appeal shall be such -sum as the taxing officer shall consider reasonable, having regard to the amount involved in the appeal, ·its_ 4 nature/ importance and difficulty, the interest of the parties/ the other costs to be allowed, the general conduct of the proceedings/ the fund· or person to bear the costs and all other relevant circumstances.// There are a number of authorities such as George Mbuguzi and Another vs. A. S. Maskini [1980] TLR 53: Thomas James Arthur vs. Nyeri Electricity undertaking [1961] E.A 492: Rahim Hasham vs. Alibhai Kaderbhai [1938] T.l.R ·@ 678; Premchand Raichand .vs.. Quarry Services ·of East.Afdca."ltd [1972] E.A. 162; {CAT} Taxation Reference No. 2/2000 {in the Matter of an intended Appeal} Between, The Attorney General ...... Applicant and Amos Shavu...... Respondent] in which the both the Court of Appeal and the High Court have pronounced themselves on what should issues should a taxing officer consider when taxing instructions fees. In a nutshell the Courts have stated that- The Taxing Master should also take into consideration the following - allowable costs should not bar the general public from having access to the Courts: should gauge against making· litigation a domain of only the wealth; a successful litigant should enjoy fair re- imbursement of the ·costs he incurred in prosecuting the suit; general remuneration levels to advocates should be encouraging enough to professional recruitment✓ and need to have a consistency ·in the amounts awardable although the latter✓ on the ground, would be hampered by lack of circulation of various decisions. 5 However, in the case of MGS International (T) Limited Vs. Halais Pro- Cherne Industries Limited Commercial Case No. 3 of 2003 (unreported) Kalegeya, J. (as he then was) added general behaviour of the parties in speeding up or delaying the disposal of the case as one of the factors which have to be taken ·into consideration when taxing a claim for ,instruction fees. "And in reaching his decision a Taxing Master has to take into consideration such factors as the suit amount the nature of the case/subject matter✓ its complexity, time taken for hearing/arguments/ amount of research involved; And I should hastily add, the parties general behaviour in attendances and abiding by the set schedules including their seriousness or otherwise in quest for expeditious disposal of the controversy'' Basing on the above established principles of law, the amount involved i.e. Tshs, 267,931,035/= and the nature of the documents files there is no doubt that the applicants' advocate had to and indeed did conduct a labourious research. If not for the respondent's behaviour of conceding to the preliminary objection relieving the Court from determining the obvious, the applicants' advocate would have been entitled to the claimed amount. Thus, the respondent deserves to be treated leniently and on the same time the applicants' re-imbursed fairly. I have taken all factors into consideration and in my founded view I find an amount of Tshs. 5,000,000/= to be fair and reasonable. So item No. 1, is taxed at Tshs. 5,000,000/=✓ and Tshs. 2,000,000/= is taxed off. 6 In the upshot this bill of costs is taxed at Tshs. 5,046,700/ = and the remaining sum is taxed off. It is so ordered. Dated at Dar es Salaam t h i s ~ 2017. J. R. Kahyoza TAXING MASTER The ruling delivered on the 28 th day of April, io17 in the presence of Mr. Kamara advocate for the Applicants-and--Mr. MwezFatlvocate for'the ·Respondent. CC. Rehema Magau. · J.R. Kahyoza TAXING MASTER 28/4/2017 7