20030930 TZHC Dar es salaam

I IN THE HIGH COUPT OF TANZANL AT PAR 1T3 3AIAAM, MISC. CIVIL OAIJ3E NO. 12+ OF 2003 VS MAfIA AND COMPANY ADVOCATE3 APPLICANT 3 VERSUS. HTZIION MAGOP I ., RESPONDENT. RULING A4vocetes Ordinance. Cap This is an application uxider :3 55 of t:e 3+1 and S 95 of the Civil procedure code 1966. It is filed by M/S r4aira and Company Advocates, a firm of Advocates against HEZRON MAGORI.Mr Moses Maira a senior Counsel of the firm has taken it upon himself and rte firm in these proceedin. s while Prof UgongoFimbo represents the Respondent. In the application, the Applicant seeks for the following orders. s That HezrOn Magori yy N/7and Conpany Advocates instruction feeg for professiondi services rendered being Tshs 28,273,786420 or such costs as will be taxed by the taking master atLhé direction of this honourable Court, The Costs of this application he paid by the said HEZON MAGO1II. Any other orders (reliefs and directions as this Honourabl court may make in its discretion to meet the justice of the case. P The application it supported:hy the which-als. annexes copies of the variousrulings and .orders . of his court azid"theCourt ofApealeIn:his affidavitMr, Maira, has deposdhat his 4.-.-. f.irmwas Instructed by the Respondent to:.cief end him in, variu .appications narne'3.N civilapplication 200/97, High court (DSM, Misc Civil Application N. 180/2000 9 Court of Appeal civil Appeal NO. 82/2001 and C ourt 1 ofAp 1,)eal civil Ap1icatiori140 55/2002 MrMaira has furthetated that the vaue.of the subject aatter is she 107,4865,13 and thus his firm was entitled to 3% of the cicims c ccdin Teas 3,000,000% lastly Mr Maira, deponed that so far his firm has been paid only shs 7,486,51A exclusive of VAT. In his Couhter affidavit the Respondent states that when he obtained the decree of Shs 107,486,513% the Applicant had not yet become his Advocate on 17/10/97. That the judgement debtor ; paidthe decretel ammount through the Applicant in November 20020 That on 29/11/2002 the Applicant wrote to the judgement Debtor's Advocate N/S Kilindu and Company demanding pajment of 33h21 ,407 1 302450 as VAT. The Respondent further states that on 2/12/200?p licant rmitted e to him a cheque of ohs 78,502,697.50 explaining that ohs 7,486,513/= was the agreed fees. However on seeking clarificationfrom TRA the latter informed him that the VAT due from him was only ohs 1,497.303. Reverting to the Applicant with that revelation the Applicant replied to him that he had deposited the amount intended for , Vin a fixed deposit and that he would remit it to him with interest. That on 26/3/ 2003 he allowed the Applicant to deduct the amount due to VAT, The Respondent admits that the Applicant.represented him at Kisutu RM'S Court, at this swon to the ort and before Lugakingira J.A. on 3/6/2002. He has t. effect however that.t.he applications before the high court and Civil Application I\O, 55/2 00 2 tenninated without a hearing. Further the Respoñdeht sttès In CiVil Applicati6no 82 of 2001' at th Coft'Of,' peal he was repreoenteh by i'lr Mogesa. The Respondent goé' on tb, state in his chuntér' affidavit, that GN 515/91 wa not aplicabIe th the . .' . .. • 1" "èet case, that the areed fees '. hd lreT been paid'and that the 'epicant oe'o him a thtal- of hs 24,261,917/10 and endsup 'by'iiigin ts court to order him to pay the saife" plis 1 interet and di'niiso applic at ion, , In his submission Mr Mairp has argued that he had manae to prove th'eexistexce..Of' Advocate and. cient r elticn-ship between his firm and the Respondent starting with execution proceedings at Kisutu R'MS Court He said the areennt"oñ the fee nt the rate of of th " total amount was ornl, and was' based' On he Advocates Pelfluneratioia 'ad' Taàtin' of Costs Rules GN 515 of 1991. 'Thht ioether or 'no' the anibtuit isdir nd'Osoi*o1e o±'oxcessive it is fbr the Taking Mster to determine. ' 7. -.3- 0 In his submission, Prof Flobo learned counsel for the Respondent first started with a prelminary objection that all the materials appearing/ref ered to in the submission be expunged as they are matters of evidence which should not be part of a submission. He relied and cited the decision of this Court in VOCATIONAL FDUCATION AINING AIJTHOITY VS GHANA BUILDING CONTPACTO1S AND ANOTHER (Civil case ND. 198/55 (Unreported, Bar es salaam) He therefore asked this court to expunge those references. On the substance of the application Prof Fimbo, Submitted that for an agreement to be enfoceable it must be in writing and that in the absence of such agreement as in 3re5etlt S the case it is not enforcable. Alternatively if there was such / agreement it was only for shs 7,486,513% which has already been paid and in fact overpaid by shs 21+,261,917/60 and that the Applicant is now withholding part of the Pespondents decretal amount to the tune of shs 24261,917/10 Prof Fimbo further submitted that schedue IX of GN 515/91 is not applicable, but in stead 8obedu1e XI (1) (j) is: Prof Fimbo further submitted that as the application failed to cite s 62 of the Advocates Ordinance (Cap 341) the application was incompetent and relied on the decision of the Court of Appeal in ALAMAS 11)1)15 W!INYI V NATIONAL. ---- ---- COMMERCE A11) ANOTHEr? Civil BANK OF----- ApplicatioND. 88 of 1998 (Unreported). econdiy the application has not exhibited a bill of costs as demanded by S 61 and 62 of the Advocates Ordinance, Therefore, he submitted, there is nothing upon which this court can exercise its jur,i-sdictionu5nder 3 62. of the Ordinance. He' relied on the decision of this court in. KAPINGA AND COMPANY V NBC (Misc. Civil Application NO. 217 of 19999. Thirdly Prof Pinbo subrnttcd that the Applicant had not delivered a bill of Costs to the Pespondent and this was contrary to S 61 of the Ordinance. At the end of the day Prof Fimbo prayed. that the application be dismigsed with costs. In his rejoinder Mr Maira sbhmitted that the of ETAVGIIANA BUILDING CO IPACTORS AND ANOTHER was qubted out of context as it was irrelevant as that cae did not order exclusion of pasages referring to the annexures but the annexures themselves. Secondly Mr Maira submitted that the agreement need not be in wnittin: but tik the'e was no agreement between his firm and the Pesaonclent any way. On the quest ion of exhibiting a bill of costs Mr i4aira submitted hst it has been the practise of this Court to direct that such bills be taxed by the Taxing Master and ned not be exhibited before the Courts . . 'I I] He relied on the deciiohs of andKKINGAVNBC Lastly Mr Naira submitted that S 61 and 62 of 'the Athocates Ordinance would only come into play 9 once this Court finds that the agrernent is valid, reasonable and fair and Order that a bill of c6sts be filed for taxation before the Taking Master. As prof Fimbo has raised a preliminary point of law on the submission of Mr Maira I intend to begin with it. Prof Fimbo submitted relying 'on the decision of Irando J in VTA V GHANA BUILDING COHIRATOI AND A NOTHER that materials referring to annexures in the Applican.ts written submission be expunged as they cannot form part there of, as 'they are evidence. I have cthefully looked at the ruling of Kyando J (as he then was), Kyando J Concluded in his ruling that:- Exhibits cannot be annexed to sibmissions as they cannot be tendered durihg. submisions .... I reject therefore the annexures annexed to the submissions of Mr Kayange.m This pasage i's also quoted by Prof Fimbo in his submission. The learned judge was 'clearly and specifically refering to annextures to submissions. It is these annexures which the learned judge 'ordered that they be expunged from the submis3ions 0 'I do not see any similarty' between that case and the present one 0 It is true that Mr Maira refered to some proceedings of the case in which he has defended the 'Respondent, It is true some of the orders were attached to the affidavit but I have seen none attached to the submission0 Therefore I agree with Mr Maira that the facts of that case are different from those in the present one. I will therefore hold that VJPA'S case is irrelevant here and I will accordingly Fimbo reject Prof preliminary objection. But even if Profpas correct I do not see how that 'would 'affect Mr Maira s submission fr even, in the VF7I1A case the High Courtuphal'Mr'" submission despite the' ­' orderexpunging the annexures from his submission. The next point of. contention is whether for an agreement between a client and an advocate to be enforced it must bei'n writing. It is contended by Prof Fimbo tbat for an applicatioh to be tenable under S 55 of the Advocates Ordinance the agreement must be in writting. Mr Maira learned cousel, or the other hand thinks not and finds support on this in the decision of Luanda J in KAPINGAV NBC Misc Civil Application NO, 117/ 2001. I have carefully read the provisions o± the Advocates Ordinance and also studied the ruling of my leared, brother J,,uanda J in the KAPINGA CASE and I am afraid I do not agreed with him. C O'+I 0 0 -5- ii As rightly submitted by prof Fimbo S. 55 of the pdvocotes Ordinance must he read as a scheme and for purpoes there of it must be read in whole with part VI of the Advocates Ordinance titled FJj4mIQJ O' ADVOCATS In my view the intention of PART VI of the Ordinance is to provide for the mode and control of Advocatescosts. Therefore under the scheme, Advocates costs are either derived from the formulated as an Order under S 49 by the . Comittee, or the parties agree, by an agreement in writing under S 53. And the dividing line is S 52 which reads. As long as any order made as aforesaid Is in sperat ion the taxation of bills of costs of advocates shall, Ubjhct to subsequent of this part withrespect to agreements as to renumeration regulated by that order 0 It is plain from the above provision that the intention of the legislature was to put in effect a system where by in the absence of an agreement between the advocate and his client than the Order under s. 1+9 would he applicable 0 But if the parties wish they may put their agreement in writing. So it is clear that if an Advocate intends to ely on an agreement then that agreement must be in writtin, And I find support in this my view in the ugandan case of SOVOPANrIT -V NUKASAEIATMAJthDOTHER (1961+) E,J 1+90 which I find more sound ad pexsuasive. In that case Sir TJdO tjdoma C.J. (as he then was) traced the origins of s 55 of the Ugandan Advocates Ordinance which is in pari material with S. 51+ of rdinànce, and held that. If 3 55 56 of the Advocates Ordinance, 1956 applied it was still necesary for any agreement sought to be enforced by an advocate against his client in respect of his remuneration to be in writting signed by. the client, n a crefully reasoned ruling, Sir Udo tTdoma said at P. 1+97,. ait is correct of course that the operative words of great importance in 3 55 may be said to be, . •S•5dS 6.- "May ruak.e an agreement in writ tin and that phrase on the face of it appears to be merely permissive, that is to say, it is enabling and not disabling an advocate to enter into an agreement with his client. I think the plaintff's contention oversiicplifies the requirements of the section, In my view the whole of PART VI of the Ordinance . must be regarded as a'schenie Advocates were not precluded there by from entring into agreement with their clients verbally as to thei' remuneration. But the law however, refused to lend its support for the enforcement of such agreement unless it is made in writting. The reason for such insistence . is of course )aovious, and it is:suggested. tisat it was in order to enable the court to scrutinise the terms of such agreement so as to make certain • that an advocate did not comit charnperty or maintenance or any offence or that, such an aement was not oppressiiTe. As I said above I am persueded by this ecposition of the law •.ihh I adopt as the correct one 0 Uhich means,in my vew that while an agreemeflt I agree with Mr Maira, learned counsel that '. '. between an advocate and in his client regarding his remuneration need. not be • . in w&itting, I agree with Prof Fimbo on the other hand that such oral agreements may not he enforceable in Court since the law requires it to be in writting. Accordingly I Would unholci Prof Fimbo's submission on this aspect and hold that the Applicant who himself admits there is no written agreement on'remunai.aticn :tween him and the Respondent has failed to show the maintanahility of his action under 3. 55 of Advocates Ordinance and since there is a specific provision for the purpos .3. 95 of the Civil , Procedure Code Act is eouaJ.ly inappl ic able. -7- But that however is not to say thet the applicant Is not entitled enurnere.t1Ofl may to ... The Applicant :.: file his Bill of Costs in accordance (enmr. ion with the existing Advocates .. and ?axation of Costs) Rules GN 515191 and it is for the Master to determine the fairness and reasonableness of the bill in accordance tith establi 3hed principles. The application therefore, auceeds only in part. Each party thall bear his costs in this application. It is so ordered. • S.A. MASCATI JUDGE . 30/09/2003. ... Puling delivered in her.st1± 30th day of Sepeipber 2003 in the presence of Prof Fimbo for Mr Maira for the Applicant and Prof Pibo, for the Respondent and the Respondent in per8on. ............... ..............•,------ S A. MA3BATI J1JDGE • 30/0.9/2003. . . . ..