20060510 TZHC Arusha

IN THE HICH COURT OF TANZANIA AT ARUSHA AMENDED BILL OF COSTS NO. S OF 1997 METHOD K. KIMOMOCORO }- (Advocate> ......................••APPLICANT VERSUS THE BOARD OF TRUSTEES OF TANZANIA NATIONAL PARK ..................... RESPONDENT <client> of c.c No.9/1994 RULINC LILA, T/MASTER: This, if I may be allowed to say, is a simple matter but in a way sought to be complicated by counsel for both sides. I am inclined to say so for the matter on the face of the record is very clear and free ' from doubts. A brief history of the matter will assist, 1am sure, both sides to grasp as to what is the duty of the taxing officer in this matter. The whole issue arises from the taxing master's decision of taxing the bill of costs <Bill of costs No.5/1997) filed by the applicant at a total of Tshs.40 Million. Aggrieved by the taxing master's decision the respondent filed a reference <Misc. Civil Application <REF. 2 No. 90/97) with the High court. In his ruling Hon. Mr. Justice Mkwawa ordered <at page 9 of the typed copy> that I quote in part;. ".•• I accordingly order that the instruction fees in the bill of costs be remitted to the taxing officer and the same be taxed abinitio. It might not fully serve the interests of justice to leave the matter there. For the avoidance of doubts it must be pointed out that evidence as to the Respondent's , salary at the material period must be given. In this case the same can be achieved by way of an affidavit with a view of the opposite party being given an opportunity to reply by way of counter- affidavit." From the above, it is clear that; 1. The only item, subject to taxing master's taxation is the item on instruction fees. The rest of the items remain undisturbed in that the taxin_g master's <then Rugazia DR> decision remain valid. 2. The then Respondent <now applicant) evidence as to his salary at the material period be presented to court by way of an affidavit which would be countered by the the applicant <now Respondent> by way of a counter-affidavit. Following the above what ought be before the taxing master is the Applicant's affidavit providing his salary at the material period and the Respondents counter-affidavit disproving the evidence by the applicant. 3 Having said the above I now turn to the affidavit filed by the applicant and the counter-affidavit filed by the Respondent and the submissions· thereof. While I don't dispute the applicant's version that the material period relevant to the High court order is between the 19th April, 1994 when the suit (Civil case No. 9 of 1994) was filed and 18th September, 1995 when the consent order was passed by the High court as the same is not disputed by the Respondent, 1 don't agree with him for reasons shown above, that the High court ordered or directed his bill of costs be taxed abinitio. 1insist that the high court clearly and categorically ordered only the instruction fees be taxed abinitio. The applicant has, in his affidavit indicated that his gross monthly salary for the 17 months (material period> amounted to Tshs.1,087,550/=. This amount has never been disputed by the Respondent who instead, as correctly submitted by learned D'Souza counsel for the applicant, of .filing a counter affidavit disproving the evidence contained in the applicants affidavit, seems to raise issues put to rest by Hon. Justice Mkwawa in his ruling dated 28 th December 1998. With respect to learned counsel for the Respondent as to how such salary evidence by the applicant should be applied in determining the legal fee (instruction fee>, Hon. Justice Mkwawa, had this to say at page 7 of his ruling. I quote in part; " .. .In other words, any amount by which the total fees exceed the advocate's salary and 4 office expenses must be paid to him by the employer.•" so what is expected of the Respondent is either to object to the applicant's salary as evidenced by his affidavit and or tell any office expenses which can be deducted, if agreed by the court, from the amount payable to the applicant when he acted as advocate of the Respondent. This has not done by the Respondent. 1, thus have no reason to disbelieve the applicant's evidence as to his salary at the material period and that there was no office expenses subject to be deducted from the amount payable to the applicant. A crucial issue here, now, is what is fair and reasonable amount payable to the applicant as instruction fees? This issue is not far from being difficult. In this respect both sides had very little submissions. The applicant only submits that such claim is contained in items 1,4 ands totaling to Tshs.41 million and requests the total claim be allowed in view of the holding of his Lordship that he would not raise an eve brow to a sum of Tshs.40 million being awarded as instruction fees bearing in mind that the value of the suit was tshs.12 billion. To the contrary, counsel for the Respondent submitted that an amount of five months salaries as instruction fees for the applicant for his legal services is reasonable and proper one. He, further left the matter to the taxing officer to use his wisdom and discretion. It is very clear from the record, submissions by the applicant and ruling by Hon. Justice Mkwawa that the suit against TANAPA (the 5 • Respondent) was for a sum of Tshs.12 billion plus. In his ruling Ho. Justice Mkwawa said, I quote; (page 6 of typed copy> "In the instant matter the suit against TANAPA was · for a sum Tshs. 12 billion plus. It is common ground that the respondent was instrumental in having an out-of-court settlement in the matter and that negotiatic,ns for a settlement took almost five months or so. It is thus incomprehensible for any one to suggest that no work was done particularly when comparison is made between what is claimed <in the plaint> against what was eventually achieved <the terms of settlement>." The honourable judge by the above words appreciates the efforts done by the applicant. I am at one with him. It is however clear that no defence was filed. Now applicable here is schedule IX to the Advocates Remuneration and taxation of costs Rules GN 515 of 1991 and applying the principle . enunciated in the Ruling by Honourable Justice Mkwawa in his ruling (pg 7>. Further the applicant would be entitled to only two-thirds of the fees. Schedule IX of GN 515 of 1991 provides that scale of fees for contentions proceedings for liquidated sum for amounts over 3 million as is the case here, the fees is 3% of the amount claimed. In this case therefore the applicant would be entitled to two-thirds of 3% of the amount claimed in the suit (12 billion>. 6 However, going by the bill of costs filed by the applicant the instruction fees is claimed in items 1,4, and 5 of the bill of costs. 1 have indicated above that the issue remitted back to taxing master for taxian abinitio is the instruction fees. Parties are therefore supposed to have argued afresh the matter. I have indicated above the argument by both sides in their respective submissions. submissions by the applicant, on the face of it, fall far short from establishing exceptional circumstances to warrant this court award costs under rules 13 and 14 of the Advocates Remuneration and Taxation of costs rules. GN 515 of 1991. 1 accordingly tax off costs claimed under items 4 and 5 of the bill of costs. 1 am remained with instruction fees claimed in item 1 only in which the applicant claims Tshs. 35 million as instruction fees. 1have, above, stated that the applicant in this matter would be entitled to two-thirds of 3 % of the suit claim c12 billion>. This gives Tshs.240 Million. But the applicant claims only Tshs.35, million which is far less than what he is entitled to. Bearing in mind that this is a 1997 matter and with the inflation that has taken place to our currency, I find the amount fair-and reasonable. But as directed by the High court Ruling <Hon. Mkwawa Judge>, the instruction fees payable should be less the salaries paid to applicant at the material period and office expenses incurred at the material period. As said above there is no evidence that there were any office expenses. Salaries paid to applicant at the material period as indicated by the applicant and not disputed by the Respondent is Tshs.1,087,550/=. so by simple arithmetic calculations, the applicant is entitled to be ,. . 7 paid tshs.35 million less tshs.1,087,550/ = which gives tshs.33,912,450/ = as instruction fees. I accordingly tax costs in item 1 at the above sum and tax off the rest. To avoid doubts, and as per the High court Ruling costs claimed in other items remain as were taxed by the then taxing master Hon. Rugazia DR (as he then was). 1so rule. Right of Appeal explained. £0 S.A. LILA TAXATION MASTER iio)-s-{ v l