19900217 TZCA Dar es Salaam 1

IN THE C0UrtT OF' ·APPLAL OF TANZANIA ,b_T DAR ES SALAAf-'.i CIVIL APPr.::AL N0.29 OF 1989 BST'1JEEN ESMAIL INTtRNATIONAL LIMITCD 0 e O O • • • Ai?PELLAHT 10 J ;B. KASIDI O • 0 0 RESPONDENTS 2 .. M/S L.J. RIKARDS. & COMPANY LTD •. (Appeal from the decision of the High court of Tanzania at Dar es Salaam) ' (]3ahati, J.) dated the 1st day of A11gi'1st, 1988 in Civil Case No. 271 of 1987 RULING. KAIJAGE, IDR•- ~ TAXING MASTER: On behalf of their ·clie!'lts, the successful respondents in appeal and now the applicants in these proceedings, M_r:. Kalunga for J.B. _Kasidi and Mr. Rai_thatha for• M/S L.J. Rickards· have filed two separate bills each charging the sum of 3 millioh stillings plus against the unsucc~ssful appellant - the respondent in these taxation proceedings. Dr. Lamwai appeared for the latter. Save for items Nos. 8, 1, 2, 9 and 19 in respect of the bill filed on behalf of the first applicant and items Nos. 8, 1, ....:2, 9 and _20 in resp'=ct of the bill filed on °bP.half of the second applicant, Dr. Lamwai rais~d no objection to the rest of the items in both bills. i-Ji th out much :idO, the i t~ms which are not objected to should be and same are accordingly taxed as prese~ted. While I propose to revi st i bcms Nos. 1, 2, 9, 19 and 20 · later in this ruling, I will now b2gin with i tern ili'Oo 8 which, in rry view, raises crucial points for'consideration a~d decision. It is this item which has b2en strongly contested and it. is the sarr.e item charg~d the sum of 3,000,000/= being instruction fees against each bill. ■ ooo/2 J, . 2 lEngthy submissions in support of item No.s. In a nut shell the. learned Advocatas have submitt8d that the appeal was peculiar, of complex and much involving in terms of matter3/ fac~s and lawo It is their contention that during th8 appeal they had to research into several matt~rs of Law unlike in the High Court. That, it took the.m 5 working days to urgue tht= app~i:!l and that th1.:i work done and which was necassary for ~he appeal was enormous. It is further th,'?ir .-:!mphatic submission that the amount charg2d as instruction fees in each bill is commensurateo On the other hand, Dr. Lamwai has argued that the appeal neever presented complex issues of fact or Law b;:!ca>lSe similar rr2tters of Law w~re rais?d during th,? trial. In otherwords and acccrding to him, the appeal involv~d reflections of matters of facts and law which w~re cov~red in the High Court. Dr. Lamwai criticised the sum of 3,000,000/= charged under itams No.sand instead he suggested, at the highest, the sum of_200,000/= as reasonable instruction fee on 8ach bill. It is against this background, that I now·proceed to examine and evaluat2 the submissions of the learned advocates in so far as they touch and conc~rn item No.sin both bills. Appar;1ntly, submissi.ons by Mr. i<alunga and ·Mr. Raithatha do not in any way conflict. In fact th-?ir submissions do supplement each Other and this probably explains the similarity of various i terns in th.2ir r2 sp2cti ve bills of costs. Indeed, tr. I<al.unga and Mro Rai thatha on onr.•.~ hand and Dro Lamwai on the other are essentially in agr2~ment r~garding principl8s governing the award of instruction fees and which were enunciat2d in various East Africa Court ~ecisions.in particular the case of J:-REMCHAND R,UCHAD (1972) EA 162 and amplified in GEORGE MBUGUZI J.l\D ANGTRER (1980) TLRo 530 DC e /3 • 3 The learn,.::!d advocates only differ on the applicability of thE?se i:,rincipl•.?S to the circumstanc8s of the anpeal which g2v,2 ri-se to thes8 taxation proceedings. To be more preci s-:, these principl•.,s are r--~fl,,ct-=d un~er Rule 9 (2) of the 3rd Sch-2dule of the Tanzania Court of Appsal Rules, 1979 which provides: "R.9(2) The fee to b,:? allow2d for instruction'S to appeal or t~ 00pOsa an appeal shall be such sum as the taxing officer shall consid,=.r reasonable, having r~garJ to the amount involv-.=d in the ap9eal, its !"latur-=, import-3nce and difficulty, the inter·::st of the parti,::s, th~ other costs to be allow~d, the g~n2ral <=:onduct of th1:: proceedings, the fund or . person to b2ar th2 costs and all othar _ · relevnnt circumstanC•=s". In line with the provisions of the said rule and oth,::!r authorities cited to me in th~ course of these proce~dings the l0arned advocates for the applicants h~ve submitt2d that a ship, . the subj2ct matter of appeal was worth 115,000 US dollars which in rough estimate could be about 21,000,000 Tanzania shillings todayo. Dro Lamwai did challenge this ass8rtion and has argued that the valu~ of the ship was put at 114,000 US dollirs by the hirh court6 Be that as it m~y the average value of th~ ship could be slightly un--:Je.r or above 20,000, 000/= Tanzania shillings today. It is this valu~ of the ship which the laarnad advocates for the applicants asserts as one of the justifications for charging the amount refldcted in items No.~~ Whilst the _value of th~ subject matter of a suit is an important factor in assessing the quantum of any instruction fee, it is c;2rtaj_ nly not the only factor to be taken into account. I will proceed to 100k at Other factors her9under. oo~/4 In these procet:"!dings the learned advocat,::s for the applic.c1nts addressed me at some length on the nature of the appeal and the difficulti8s which they had to contendo They have submitted that they did a lot of t~search in matt~rs of feet and law and that each math,r and document was subjected to close scrutiny and int~rpr~t~tion in tha light of the law involved and sorrounding circlimstanceso Th~y furth,,r assert thct the· amount of work involvf~d in prepar':ltion of the app,3al was enormous ,and that in thc2 cours~ of arguing the oppeal they had to consider questions Of anticipatory brW'1Ch, pl.:,adinc1 s Of fraud, law of ag·:mcy, the law n,lating to p,~rformance bonrll, cancellation of t8nd2rs, sale of goods Ordinance, shipping and merine law, the 1-:iw and ·practice of International Fin:.ince with special ref~rance to performance bonds and the ·law of renunciationo They also dealt in great detail the provisions of So 20 of the s2le of goods Ordfnanceo Th,~y also contenrl that th-2re w::is no soft sailing and th3t they h3d to be on th2ir feet to answar every allegation and every querry.from bOth the appellant and the Court. Mr. Raith~tha had to prepare a supplem2ntary record of eppeal bec3use some of the exhibits wer~ not 3ttach2d in the rrain recordo • In ~esponsa to the subnissions made on behalf of the applicants, Dr .. Lamwai submitted that th"" advocat,2s for the arplicants did not emb3rk on any serious researcho He submitted statutes that the f..t. .. ~:;-:; used and oth~r ;:,uthOriti2s cib~d wer3 the same es those used in the High Court and that the issuas which were raised in the Court of App~al were similar to those r3ised in the High Cou:rto ooo/5 - 5 I hav~ had an opportunity of perusing the racord and reading the judgement of the Court which runs to about 28 pages of typ2script. I have indeed perus~d tha authoritias filed by· beth the appellant and the respondt:nt in app,?alo These incluoe supplementary lists pf authorities., It cannot be s3id that these were filed just for the s3ke of ito They w-2re cert-'3inly referred· to and were consid~red necessary in connection with the appeal. In fact the judgement adequate~y refHrs to these 2uthoriti-2s. True, that some of the authorities might have been svbjected to some discussion during th2 trial but in the Court of J:>ppeal they need not b,3 look.=d -':lt in a similar fashion and dirnensiOno Aft2r ~11 tha ap~~llants w~re substantially faulting the judgement of the trial court. This in turn must have necessitated the raspondents to st~dy and rasearch on ev~ry ellegation in appeal. consequ8ntly, the appeal took 5 full worki~g days to finish. It started 6n 22.2.89 until the 2nd day of March, 19890 At the ~nd of the day, the two la~rn~d ~dvocates for the appellant asked fer a certificate. Surel~I am not convinced that the certificate wes being asked for 3nd to be given just for its sake. It must hc-ve been a$ked for on tha strength of the appreciation that the appeal was compl2x on facts and L-':lw. I have considered th~ submiision of Dr. Lamwai against the submissions of Nr. Kalunga and Mr. Raithathi:l on the aforesaid pcints and. looking at the totality of circumst~n,::,2s sorrounding the appeal, I am bound to agre~ that th,3 ad vocab~ s for the • applicanti h9d to undergo a d<2tailed .r8search in preparation for. the appeal and it is right that I should taka this work into consideration in assessing the quantum of instruction fe~s. ••• /6 . • • 6 I am simiL1rly convinced tha.t much low was involved and a great_ d~al of preparation was nec,~ssary not only on the part of the. ·respbndents but also the appGll3nts. We indeed gath~r on page one of tho judgem,=nt wh,~r2 the: Court admitt<=dly stated that; " ••• The :fi51J:i:f;. of th<~ ca sc are not qui b~ so simpl-:~ and str?Jight fl forward. Also, tht2 cas,~ W'3S of its own kind and I think the first ona to find its way to the court of Appeal of T,1nzania. 1 have found no oth.;:r c_:=ise of similar facts and circumst3IU;s. The next point to consider is the quantum of the instruction fe~s which should be taxed against th0 bills. 0r. Lamwai made a .suggestion as to tl-}2 quantum of the instruction fees which he thC•ugnt would. b~ ~e-:1son3ble and he came to the conclusion that the sum of 200,000/= should be taxed against each bill and that the sum would adequ~tely repr~sent the amount of work involved. In my view, even having regard to the factors which I have ~entioned herein above, I do sh~re the sam~ vi~w with Dr. Lamwai to the ext~nt that the· instruction fee charged on e3ch bill is on the high side. As ~tated e3rl{~r ~n, th~ appe3l was no doubt a difficult one and the a~ount involved by th~n (if transl3ted in Tanzanian shillil"!g s) w::i s put .,t 16,000, 000/= by Mro Ra±thathao This was the value of the ship which formed th~ subj8ct m~tter of the appealo Th2refore, hav~ng r~gard to th8 amount involved in appe~l, its natu~~, importance and difficuity, th~ general conduct of thP proce:.Jding s cind the person to b2ar the costs ,.::r ccnsider the sum of 800 1 000/= is recJsonabl,:i and should b ·taxed1:; en i tern· No 8 against each bill and on sz:.r-.-~ the sum of 2,200, 000/= 0 is accdrdingly taxed off. o o o. o./7 7 I now pr~ceed to consider items Nos. 1, 2, 9 and 19 on the bill filed on behalf of the 1st applicant and items NOso 1, 2, 9 ' .' and 20 on the bill filed on behalf of the 2nd applicant. These i ten~s concern the perusal of various documents connected with the appeal. It is my opinion that; in terms of Rule 9(3) of the 3rd E,chedule to the Court of Appeal Rules, 1979 these i terns relcte to the work necessary and properly done in cOn!'lection \•1itt the appe~l and should therefore be included in instruction fees. It is therefore improper to charge them separately. Thus the st.·rr: of 24/= which represents these i terns is accordingly taxed off ~gainst each bill. Th~re being no other m~tters for cOmMent, the bill for the 1st applicant is taxed at 805,424/50 and the sum of 2,200,024/= is taxed off. Likewise, the bill for the 2nd applicant is taxed at 805, 582/25 and the sum of 2,200, 024/= is similarly 'taxed offo j/rlr2£fJ2--- cS.S .., "Ki\IJ,\GE) Ti1XII~G OFFICER Delivered this 17th day of February 7 1990 • . . r,....L ~-~ J2--__. /-/1 . _) 0-· ,...,"/ ( s. s • .,.Ki,IJ/,GE) ·, TJ,XING OFFICER ~~~~ 17/2/1990., i ,I