19890805 TZCA Dar es Salaam

DJ TITE COURT OF APPEAL OF T.AHll\lHA AT DAR ES SALA.'1,M CIVIL !'.PFE.i\L NO. 46 OF 1987 Between Ki,MP-illil YA UCIIOKlJZI i0;WANZJ. LLI!Tm). • • • APPELLJ\NT • ii.nd ' GABRIEL C. RIWJ. • • • • • • • • • • • • • IDJSPONDEl'JT ' . RULING · The taxation of tllis bill had to proceed in the absence of the reopondent in line with the provisions of Rule ,G of the Third Sc1lcdule -~o the Court of Appeal Rules, 1S'79, after I w;;,,s satisfied that he was duly served in order to appear and resiot or otherwise the bill but did not wish to do so. Ur. Kapinga, learned advoce.te filed and appeared befor~ me to argue the applicant's bill of costso It i:J a bill with a to·~al number .I of 39 items totalling shs. 267,827.50. From the very outr:;et, r1r. Kapinga submitted, nnd I l'Gadily agree with him, that e):cep,~ for i terns 2 and the Disburf;e:11cnt i terns the rest arc according to ocalo. I will accordingly tax tl::.osc items as prosonted. As regards Ita171 2 on instructions to appec.l, o. total sum of 180,000/= is c.sked for. In support of it, rir. Kapinga ho.s urged that ·/ i ' ·::he. same is reaoonable taking into account oevcral factors ~•e• 1•1 ·•\. ,. (a) That thr:, caoc originated from the Roddcnt M.n.gistmte's J . ;, ·1 i Court of I,1wanzf1. where the respondent wc,s ~warded the sum 'i I of 2,125,000/= for keeping the vehicl0s of the applicant after attach,.icnt. (b) The decioion on (a) abo\ie involved the interpretation of the Atta.ch.'7lent and of 1964- as amended with the asr;es::iment the '"'c.pplicant c:.pi)Oc~,1cd to the Tiigh . .f" Court calling upon iJ~ to· interpret P£~ra 2 of the second ;' schedule to the Rulei::;, and that the 1Iigh Court confirmed •/ ! ! :· the decision of the lower court. 2 (c) The applicruit, still' disatisfiod sought and war:; denied leave ( . by the High Court to appee.1 to the Court of Appeal aftGr which he he.d to move the Court of Appeal itself for such le.1ve and was grc..nted. I ts.--..:' ~-;:. ~' (d) That in the whole of the above process the applicant anrl/or counsel h2,d to study the proceocline;c of all the concerned ·! courts in aclcli tion to s·tudying thoroughly the law tho Court of Apperu. was called upon to interpret; and that in Go doing the court was in effect being·cdled upon to venture into "virgin land" as none of the courts lw,d. ever before been called upon to interpret tho order in qu.ootion. (e) That generally taldng into account the .:i.raount involved, the complezity of the matter, e..nd ,che i~,1portanoe of the legal I questions raised by the appecl.; n.ll ·l;hece, wot.tld. taken in their tot0,1ity, justify tho 180,000/=. I agree with I-Ir. Ifrl.pinea. that the appeal wc1s to an extent irr.rolving but would not howeve:.:- go 11long with him that it WC.G so difficult a::: would justify the m..un of 180,0CO/= a.s inotruction fee. True, there ,ms ,.;he interpretation called. for which required. sorr,c roco:,.rch and 'tirae in preparation for the appcnl but I note however thc,t besider:; the s2,id legislation there was no other law, authority or otl:erwisc cited. bc:.':"ore •. the Court of Appeal in support of ite It is again true tb.r,t tho sum involved in the conccn1ecl courts was I fe.irly l:..igh, i.e. 2,126,000/=, but the Court of Appeal in allowtng the ,I -I appon.l held, and I quote:- .,I I l'I .I "The toto.l · anount of feos would. be for the first 15 dnys sho. 2,560/= and the rewn.ining 404 days (shs. 404-7-20) ... 8,080/= which make::;~ total of shs. 10,640/=. We hold tl12.t the$e c.re the fees that the court broker is ·entitled -~o receive and no more". ••... /3 I' .I :.r : .. ,; 1, 3 In the justice of this rnnttcr, I will reduce the ruaount under this I ,· item to such sum as I think io reasono:.ble tn.J.dnc into account_ all ,, "che relovant fnotors in the whole issue. In my·considered view n sun of 100,000/= would be rc~sonable. I.ccordingly ·i;~1is is the SULl I allow under this item c.nd tax off 80,000/=• Th~~ di"iib~~:~µt- i_tcr.1s nre well supportGcJ. by rooGipts. I h,we nothing \ ..• ' 0 ':,, to doubt (them. I will ·iJ'fue·: them n.s presented.• yl .~\ \ ; In the result the o.pJ>faoruit Is bill is ta.:~cd <1. t sl1s. 187 /327 /50 only. , ~ . ·;, i i. •• '• I '..," l ✓~ ! ~.. .' , I '--< ,-.; ..... • , . ~:/ /.,1· ( J. E. I~,30FFE ) ,_4'~,. I, ,-;;t:" ".,._ 1. ; ~::-;;;;;;;:~.. 5TII AUGUST, 1 989 DAR ES SALll.AN. ,/ f • . ,_. -:1 'i .! ·-,•.,i :I ,, ·1 I ~-- ·l ' I' i I. i