19900217 TZCA Dar es Salaam

\• - '(,~~~... ~-~",;., ~-~;i~-!,J"iN:fr: .-;. ·,.:. '". IN THE COURT OF' APPJ:::AL OF TAi~ZA!HA AT DJ..R ES SAL.'.,M1 CIVIL APPC:1\L NO. 29 OF 198f BS'r'!JEEN ESl"iAIL INTERNATIONAL LIMITi~D. • o a • o O APPELLANT And 1. J.B., KASIDI 2. M/S L.J. RIKARDS & COMPANY LTD., ... • RESPONDENTS (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) .· t ·: (Bah a ti, J.,) dated the 1st day of A11g11st, 1988 in Civil Case No. 271 of 1987 R UL I N G KAIJAGE, IDR,. - TJ.JCING MASTER: On behalf of their clients, the successful respondents in appeal and now the applicants in these p::-oceedings, Mr.• Kalunga for J.B. Kasidi and Mr .. Rai_thatha for M/S L..J. Rickards have ,. 'I l filed two separate bills each charging the sum of 3 million ., stillings plus against the unsucceiiful ap9ellant - the' respondent .~ in these taxation proceedings. Dr. Lamwai a;:,peared for the latter., t. Save for ite~s Nos. B, 1, 2, 9 and 19 in respect of the bill filed on behalf of the first applica!"lt and items Nos., 8, 1, . ..-·2, 9 and 20 'in resp,::!Ct of the bill filed on behalf of tht=; second applicant, Dr. Lamwai raised no objection to the rest of the items in both bills. i·Jithout much 3do, the it~ms which are n_<?··tt-objected , ,• '; to should ~e and same are accordingly taxed as presa~ted., While I ~repose to revist it~ms Nos .. 1, 2, 9, 19 and 20 · lcter in'this·ruling, I will now bag.in with item No. _8 which, in ~y vie~, raises crucial point~ for consideration and decision. It is this item which has beP.n stf.·ongly contested and i t is the same item chara~d the ~1m of ,~nn~·nnnl- 'h,-,;-~ ; __ ._ ____ .._~ .... - .L:--- 1(:~•;:Iq•z7~;'.W\'. r,, .; "':',_ '7 • j ::,:c.}·. ,~,~.- .J:.-.-·\· I, •• • •·>,' •··~~. :· ~.: .• Y(i• ·. 2 ... ~ '-:. I Both learned. Advocc1t.:=s for the a;)plicants h3v,2 :nade lengthy submissions in sup'port of item No.8. In a nut shell the. _, -:,.-, .: -.~ l~arned Advocates have' submitted that th2 app,:al was peculiar, of complex and much i1wolving: in terms of mat.ter3/ facts and lawo ~·. . ;_ . _.:}:· It ·is their cont8ntion that during the appeal they had to research ._ I into several matt~rs of Law unlike in the High CourL That, i~ I took them 5 working days t6 urgue the appeal and that th;i work i I I• done and which. was nec,~ssa.1;-y for the appeal was (:!nOrmouso It is further their -=mphatic submission that the amount charg2d as instruction fees in each bill is commensurate. On the other hand, Dr. Lamv1ai has argued that th,~ appeal never presented complex issues of fact or Law b•=ca 1se similar 1 rrctters . Of Law W'3re· . rais2d during ' th2 trial. In otherwords and acccrding_to himj the appeal involved reflections of matters of facts and law which w~re co~~red 'I in the High Court. Dr. Lamwai criticised the sum of 3,000)000/= cha~ged under it2ms No.8 and instead h~ sugg~stcd, at th1 highest, the sum of 200,000/= as n:asonable instruction fee 9n each bill. It is against this background, that 1· now proceed I to examin,2 and evaluat.3 the I -~·-.· ;_: ....:\ .. : submissions of the laarned a~vocates in so.far as thay touch . /r-~~ . . ,, . \:.__/ and conc~rn item No.a in both bills. 'j Appar:rntly, submissions by Mr. Kalunga and Mr. Rai thatha do not in any way. conflict. '! In fact th-~ir submissions do 1 supplem 2nt er3ch other and thts prob_ably explains the similarity 1 of various items in th2ir r2~pactive bills of costs. Indeedr .r,,r. I<alunga and Nr. Raithath'1 on om~ hand .and Dr. Lamwai on the I ,I other are essentially in agr~emant r~garding principles governing :1 'I the award of instruction f-2.zs and which were enunci-ated in . I .1 various East Afri~a Court de~isions in particulat the case of .I I i lREI\CHAND RAICHAD (1972) EA +2 and smpUfied in GEORGE MBUGUZI I I ·i I\ -l1 < 11 . ' 1I In these proceodings '.the hiarn0d advocaL,s for th8 . II applic.=:mts addressed me at 'isome 1,~ngth on the nature of the l appeal· and th'= difficultieJ which they had to contend. They heve submitted that they dJd a lot of resea~ch in m=:itt~rs of I . fact and law and that each \matt~r and docum,~nt was subjected . t o c 1 ose scru t.iny and in . t erpre 'j .t a t ion . . in· th a . 1 ig . ht o f th e 1 aw I . involved ·and sorrounding circumstclnces. Th01y furth•·,r assert 11 • I '1 thc.t the ?.!mount df work inv<iilvf?d in prepar=:ition of tlv~ appeal j was enormous and th.3t in th1 cours;;, of arguing th.~ app'2i31 they C ! 11. had to considl=?r qw..estions o 1 anticipatory b·r)?"'!Ch, pL~adirig s of I ·fraud, law of ag,~ncy, th,':! 1 Iw r2l-3 ting to p,==rfor·mancl:! bond, 1 j '\ cancellation of t2nd 3rs, s,,J e of goods Ordinance, shipping and ,1. 1 marine law, the 13w and pracjltice of Intern3tional Fin:ir.c-::: with . .I speciai ref~rance to performrnci bonds and t~e law of renunciation. They also dealt in great d-~tlil the provisions of s.20 of the I s2le of goods Ordin=i:ic-2. Thiy :ilso conten,~. that th )l'.'·2 1 •ns no 11 soft sailing and that they htd to be on th2i~ feet to answer I every allr:?g3tion ,:1nd :2v•2.ry q~erry from bOth th,:! app,:.>lla:"lt and :1 the Court. Mr. Raithatha had to prepare a _supplem2ntary record Of appeal b~c3use some of th1 exhibits wer~ nbt attachad in th~ I Jllain record. I~ response to the subn~ssions I, mad8 on bahalf of the I . t1pplic,3nts, Dr. Lamwai submi ~led that the adv6cat2s for the arplicants did not embark on ~ny serious rese~rch. He submitted I that the statutes 11 !".;:. .. ~:;-=; us<.?d :ind Othc!r "JUthor1t1es.:<;::i·c.0d w2r,:. th . . •3 same . L. ,j c:s those used in the l-ligh Coult and that the ~ssues which .w<:'!re raised in the Court of App~allwere similar to .those r,:1iSed in ! . . ! I the High court. I ·:?'-·:· ,·•·•;-:J ... I I ~J~if-~?r~:,~s~~t'::'-'"' i't. · I: (:-..!,~:. _I 5 . i i I have had an opportu.ni ty of p,?rusing th<: n:cord .3nd :.:"·,::1~·: ·-· . .. . . i . .- "· reading the Judgement of the Court·which runs to about 28 pages t-- · 11 of _typescript. I have indeed peru s,:,d the authori ti-2s f ilod by I'I bCth the appellant and the kespond-:nt in app,2:1lo Th•::?se incluq.e !I sopplement~ry lists of authprities. It c~nnot be s3id that I! these were :filed just .·for tfhe s3ke Of it. They 1-.1,2re C,:rt;;iinly r·e.ferred tb . and w·2re ·considf'.:!red necessary in connection with the . . • 1 appeal .• In fact the judgem~nt adequately ref,~rs to th,2s12 i True, that seine of the authorities might have been ! • t d su b Jee.-= t o some d"iscussioi;-i- . I during . th.: trial but. in th2 Court of '1 11 · Appeal they need not b,:: loolf-=d ':lt in a simil.:ir f,:ishiOn ,3nd i[ dimension. Aft2r ~11 the adu2llants w~re substantially f~ulting -( thE judgem~nt of the trial Gourt. This in turn must have I necessi tat2d t!he r2spondents to st•1dy and r-2se3rch on •2V•:'ry i! ellegation in appeal. cons2quently, th-2 appeilal took 5 full working days to finish. I It started on.22.2.89 until ~he 2nd day of March, 1989. At the II E·nd of the day, th1,," two 12:'lrln•~d advocat~s for the app,.~llant asked ,i Ii for a c,~rtificate. Surely,, Ii. am not convinc-ed that the certificate . j I, 11.:c:s being asked for 3nd· to be given just for its sake. It must '1 . I, :,• hc,ve been asked for on th-2. s~rength of the appreciation that •_; :·-;~ f!t· the appeal was complex on fatts and Law. 1, ;:\t:;_ I fI I have consider·?d ~h-2 ,!,1bmission of Dr. L-3mwai against . I the submissions of Mr. Kalun4a and Mr; Raithatha.on the aforesaid ·" ~.:l ~: I! ;;»~_7_, ·.,, pcints and looking at the- totality of circumsbnco2s sorrounding -. 11 . th0. appeal, I am bound to agi;,•:!e that the advocate.s for the· ·<t{:, .. -~~!' . •.. ·t applic,rnts h=id to undergo c1 d,=tailed r•~·~ear_ch iri. pre·p3~ati on/for: !! the appeal and it is right that I should· talc2 ·this wdrk -into I . • ~~!]~?~rr ·:;-:;-:~~~~i~r?:· ,;~~~,w~~%~1-ttr:;rt:+~1?$!~fkl'~~~\\P~"o;<;~,l ~'!}',; ' , j . •• f. -l I' 7 :•){t(i I I rfow pr~ceed to con'.'sider items Nos. 1, 2, 9 and 19 on the I bill filed on behalf of the 1st applicant and i terns Nos. 1, 2, 9 .j I, and 20 on the bill filed oh behalf of the 2nd applicant. These I " i ter,'.S concern the perusal ?f various documents connected with .-1 < the appealo It is my opin}on that; in terms df Rule 9(3) of the ,J ·1·, ~:£?) ·t~t:.- . 3rd Schedule ~o the court pt Appeal Rules, 1979 these items I . relc te to' the work. nece·ssary ·, and properly done in connection \•1itl-, the appe"31 and should) therefore be included in instruction i! feesc It is therefore impfoper to charge them separa-tely. Thus I I the St:m of 24/ = which represents these items is accordingly ,I taxed off against each bili. ) The-re being· no other i matters for comr1ent, · the bill for the 1st applicant is taxed ,at 805,424/50 and the sum of 2,200,024/= .,. 1 I is taxed off. Likewise, the bill for the fnd applicant is taxed at 805,582/25 and the sum ?f 2,200 9 024/= is similarly taxed offc ! J~>2-q;L ( s. s. 'khIJ.,GE) ,. TilXING OFFICER i!I Delivered this 17th 1aY of February, 1990c I ~. . ,= .,0,/)_~ ~ . -,..✓,,· •~" f2.-._..... • (S.S. KhIJi~GE) Ti,XING OFFICER 17 /2/19900