20000407 TZHC Dar es Salaam

,. IN THE HIGH COURT OF TANZANIA AT DARES SALAAM CIVIL APPEAL NO.140 OF 1997 JOEL AMINIEL KIANGI.. ....... APPELLANT VERSUS ZAHIRA KAKERE ........... RESPONDENT RULING I. MANENTO,J: This is a reference made by the judgment debtor under Rule 5 of the Advocates' ,,,, Remuneration and Taxation· of Costs Rule 1991 and section 95 of the Civil Procedure Code . . against the ruling of the taxing master dated 6/8/99. f For easy of follow up, 1 have decided to reproduce the proceedings and the ruling of the taxing master exparte, so that the reasons for this ruling are easily understood: On 6/8/99 the proceedings proceeded exparte after the judgment debtor or his advocate had failed or neglected to turn up to the court. Then Mr Lugua, learned counsel for. · ., the decree holder submitted as follows: "We have filed a bill of costs in the total sum of Tshs.2,869,000. The bill of cost of 26 items. All the items are according to Scale. 1t is to be noted that my client hails from Tanga and has changed Tshs.50,00_Q/= for a return journey Tanga-Dar es Salaam including accommodation. We pray that the bill of cost may be taxed as presented." L Then the taxing officer ruled int he following words: "On 2/6/99 Hon. Chipeta, J. Dismissed with costs an application for leave to appeal to the Court of Appeal of Tanzania against the Judgment of this comi (Bubeshi J.) On a point of law. The decree holder has now filed a bill of costs for taxation. The bill of costs consists of26 items and the decree holder is asking for a total ofTshs.2,867,000 as costs. Having perused the bill of costs I am satisfied that the sums of money claimed against \.. _. each of the items in the bill of costs are reasonable and according to scale. In the event the bill of costs is taxed as presented, i.e at a total ofTshs.2,867,000. lt is accordingly so ordered. Signed SDR-HC 6/8/99. On the first hearing of the reference, Mr Lugua, learned counsel for the decree holder successfully submitted that the reference was improperly before the court as it was not attached with the copy of the ruling of the taxing officer as required by Rule 5(2) of the government Notice No.515/1991. A fresh chamber application supported with an affidavit and attached with the ce1iified copy of the ruling of the taxing officer was filed and it was fixed for hearing on 8/12/99. Mr Lugua, learned counsel for the decree holder filed a notice of preliminary objections.with three points that: l. That the application is incompetent as it has been filed out of time. _j ... 2. This application is bad in law for failure to comply with the order of this court. ··1 It The application is bad in law for the misjoinder of parties. 3. ... Be_fore the hearing ofthecpreliminary objections on 8/12/99, Mr Thadayo, learned .. 3 counsel for the judgment debtor raised a point that Mr Lugua has no locus standi in this application as the case was prosecuted by the Tanzania Legal Corporation and Mr Lugua replied that even if the case was prosecuted by the Tanzania Legal Corporation, a firm of advocate he was employed before he started his own fim1, yet he had a right of audience as the last advocate of the decree holder as per section 60 of the Rules. This section provides that where there has been a change of advocate, the advocate finally on the record shall draw a single bill for the whole of the matter in respect of which the costs have been awarded. My L · understanding of this section is that the advocate who represented the decree holder on the day when costs which are the subject matter for taxation is the advocate finally in the record and is the one who is to draw a single bill and not that the decree holder engages a new advocate just for the purposes of drawing the bill of cost. In so doing, the new advocate., cannot be in good position to argue for the fees paid to advocate as instruction fees. He cannot be vested with the information on how the matter was complicated, the research done ', or other consultations. I agree with Mr Lugua, learned counsel that a party has a right to engage an advocate vi of his or her choice. But that choice is limited to the proceedings of the case and not for the purpose of drawing the bill of cost. I say so on the strength of Section 60 of the Advocates·, !, Remuneration and Taxation of Costs, govenm1ent Notice 515 of 1~91. Even though Mr Lugua, learned counsel is the person who prosecuted the case when he was working with the • Tanzania Legal Corporation, yet he had no locus own his own. It was the Tanzania Legal Corporation which has the Locus as the last advocate of the decree holder as the final advocate in record. Mr Lugua, learned counsel was not operating as an advocate own his own firm of advocate. 4 At the beginning of this ruling, I reproduced the submissions of the learned counsel for the decree holder and the ruling of the taxing officer. J did so deliberately as I found that there were a grate irregularity on the way the taxation of the bill of cost was done. I found that the taxation contravened the provisions of Section 40 of the GN 515/91 as it did not follow the schedules allowed by the Rules, or if it followed, there were no reasons given as to why the schedule were not strictly followed. The taxing officer has discretion to tax the bill of costs not withstanding the prescribed scale, but if he decides so, he has no discretion not to give reasons for doing so. Giving reasons in any decision one makes is an important thing and a necessary one. Its importance has been elaborated int he case of Tanzania Air Services Ltd. V. Minutes For Labour, Attorney General and the commission for Labour (1999) T.L.R. 217 where Sarnatta J.K (as he then was) quoted a passage from a text book ti tied "The Road to Justice, where the importance of a judge giving reasons for his decision was discussed as follows: "The judge must give reasons for his decision for so doing he gives proof that he has heard and considered the evidence and arguments that have been produced before him on each side: and also that he has not taken extraneous considerations into account. It is of course true that his decision may be correct even though he should give no reasons for it or even give a wrong reason: but, in order that a trial should be fair, it is necessary, not only a conect decision should be reached, but also that it should be seen to be based on reasons, and that can only be seen if the judge himself state his reasons. Furthermore if his reasons are at fault, then they afford a basis on which the party aggrieved by his decision can appeal to the higher court. No judge is . 5 infallible, and every system of justice must provide for an appeal to a higher court to correct the errors of the judge below. The cry of Paul "I appeal into Caesar" represented a deep rooted human response. But no appeal can properly be determined unless the appellate court knows the reasons for the decision of the lower court. For that purpose, if for no other, the judge who tries the case must give his reasons". His lordship, Samatta J.K. as he then was held that "it is a fundamental requirement of fair play and justice that parties should know at the end of the day why a particular decision has taken". The taxing officer when taxing a bill of cost is performing the functions of a judge and therefore by giving reasons, it shows that he beard and considered the arguments and evidence that was produced before him, though exparte. The taxing officer in this bill of costs just said that on perusal of the bill of costs he was satisfied that each item in the bill of cost was in accordance to scale and reasonable. I don't see how he discussed each item in his ruling as to justify the exercise of his dicretion. The perusal is not enough, but he had to give· reasons as to why he said that the some of money claimed in each item was reasonable eg. !.J' Taking an item for attending the court on a mention at shs.50,000/=. As I said earlier, the items for attending courts for mention or hearing are not in accordance to scale and the absence of reasons as to why the amount was found to be reasonable though above the scale makes the other party fail to understand as to how the decis.ion was reached. Thus, failure to give reasons for a decision nullifies the ruling. After I had reached a conclusion that the learned counsel for the decree holder was not the last advocate in record to draw the bill of cost, I decided to invoke the inherent powers of this court under section 95 of the Civil Procedure code, 1966 for the ends of justice, so that . 6 the taxing officer is given directions such as giving reasons for his decision. In the end therefore, the preliminary objection is upheld and it is ordered that the bill of costs b~ taxed denoval in the presence of both parties and it should be before another taxing officer. No order as to cost is granted. A.R. Manento JUDGE. 7/4/2000