watson kihaka ta lupelo investiment coltd vs the national insurance corporation t ltd another 2010 tzhccomd 12 19 october 2010

(COMMERCIAL DIVISION)

AT DAR ES SALAAM COMMERCIAL CASE NO. 25 OF 2003 CORPORATION (T) LTD .

THE PRESIDENTIAL PARASTATAL SECTOR The defendant was awarded cost in suite No. 21 2008 in a decree dated 2004. A bill of Cost was filed subsequently but before the delivery of its ruling the matter was forwarded to the Court of Appeal for Appeal purposes. The Appeal was struck out and the matter was returned to this registry. Now this ruling concerns that Bill of Cost which was already argued by a way of written submission. The Bill of Cost was argued by a way of Written Submission. The Decree holder is represented by Oscar Msechu while the Judgment Debtor was represented by Mdamu & Associates Advocates. The Decree Holder is claiming Tshs 8,000,000 as instruction fee on the ground that the instruction was in respect of two defendants and that a lot of research was involved in the case with handling of a number of witnesses. This amount is disputed by the Judgment debtor who 1 submits that according to the Advocates Remuneration and Taxation of Costs Rules, an instruction fee is 3% of the value of the subject matter. That in this matter the value of the subject matter is tsh 25,000,000, 3% of which is 750,000. According to the Judgement Debtor, the decree holder did not engage an outside counsel but only used its employee to defend the suite. From the above submission the Judgment debtor has opinion that since the decree holder used its officers to defend the suite then there

should be entitlement of tsh 8,000,000 as instruction fees. I don't think that there is any difference on taxation between tshs matters represented by a private advocate and the matter under representation of an employee of a party to the suite. I say so in reference to Section 13 of the Government Proceedings Act, where employees appear for the government. The section provides; In any civil proceedings to which the Government is a party, the costs of and incidental to the proceedings shall be awarded in the same manner and on the same principles as in cases between private persons and the court shall have power to make an order for the payment of costs by or to the Government accordingly: (a) in the case of proceedings to which by reason of any law or otherwise the Attorney-General, a Government department or any officer of the Government as such is authorised to be made a party, the court shall have regard to the nature of the proceedings and the character and circumstances in which the Attorney-General, the department or the officer of the Government appears, and may in the exercise of its discretion order any other party to the proceedings to pay the costs of the Attorney-General, department or officer, whatever may be the result of the proceedings; and (b) nothing in this section shall affect the power of the court to order or any law providing for, the payment of costs

out of any particular fund or property, or any law expressly relieving any department or officer of the Government of the liability to pay costs. " In this case the Defendants are public Corporations established by the Public Corporation Act. They operate under the government involvement. In my view cost should be charged as if it was a private advocate who appeared. With regards to the computation of the instruction fees the decree holder refers to the case of MGS International T Limited v. Halaise Pro - chemic Industries Limited (unreported) stated that the court has power to award the amount higher than the prescribed scale on the argument that the scales are outdated for being set way back in 1991. I agree with the counsel for the decree holder that the taxing officer has power to award a different scale of instruction fee from the one set in the Rules. However this discretion must be exercised judicially. Under the Rules Schedule xi paragraph j (i) The Taxing Officer, in the exercise of his discretion, shall take into consideration the other fees and allowances to the advocate (if any) in respect of the work to which any such allowance applies, the nature and importance of the cause or matter, the amount involved, the interest of the parties, the general conduct of the proceedings, and all other relevant circumstances; In the present case, the works involved according to

the Decree Holder attracted a lot of research and handling of a number of witnesses. In MGS case cited above, the amount allowed was above the prescribed rate despite the fact that the matter was under summary procedure and there was no full trial apart from some applications file in the due process. Coming to the present situation I agree with the decree holder that charging above the prescribed scale is justifiable due to the nature of the proceeding. However, 8,000,000 instead of 750000 is too excessive that is more than ten times the prescribed rate. In my view, 3 times the prescribed rate will be appropriate. Therefore item 1 on instruction fee is charged at Tsh 2,250,000. In items 4 - 15 concerning the attendance cost the decree holder claimed tsh 10,000 per item. This amount is disputed by the judgment debtor on the ground that is on the high side taking into account that taxes charges 1500 per root. The MGS case the decision of the taxing officer was upheld where ths 9000 was charged per attendance. One of the considered factors was the depreciation of the value of our currency. I allow the same amount for consistence purposes. Items 4 -15 are each charged at tsh 9000 making a total of Tshs 99,000/-. Items 2, concerning Perusal of plaint and other documents pertaining to the claim,item 3 on the Preparing Written Statement of defence and items 15 and 16 on Disbursements

respectively, are not disputes. The same are charged 100,000, 100,000 and 50,000 making a total of Tshs 250,000. Therefore items 2, 3, 15 and 16 are all charged at a total of Tsh 250,000 From the above consideration and computation the bill of costs is charged at a grand total of Tsh 2,599,000/= H K. T. Revocati Taxing Officer \q 1t 6})PlD Ruling delivered this 19th Day of October 2010 in the presence of Mr. Mayanga Advocate for Mr. Msechu Advocate for the Decree Holder and in the absence of the Judgement Debtor.