19980623 TZHC Mtwara

rk p '!HE HIGH COURT OF TANZANIA i· I ! AT MNARA ~-_........._ MISCELLANEOUS CfvIL APPLICAiION NO. 2 OF 1995 IN THE Wllr.rER OF A PEI'ITION FOR ~IND;tNG UP AND !N THE MATTER OF 1'1'1'-1~- RlOCLON COOPERATIVliHJ)lIOJ .{1984)LTD . i K•Ge-DEtlSI LIMITED • • - - - - - - - - - -PETITIONER Versus MTWARA REGION.COOP.•• - - - - - - - - • ~PGIDENT UNU!i. <1~~. .......... R U .L...... I N G: ;:- In early 1993, IC•G• _l)ew.e.i petiiicned for winding up .of the defunet Mtwara Reg::Loo Coop,eI-ative Union ( 1984) Ltd on the ground that the said- Unir.m ,r,ra,.. ~ to them a sum of Sha•12.t,-i.16+~• pl.u,s. i.11,terest a at bank'D rate which the Union failed to ·pay because of insolvency. Aft.er the .matter wru;. fil.e.d in. -Co-ul-t: the then learn.od, ~&sQt_ .to-~ ~ respondent firm Mr. Kunwembe -talked out the petitioner firm to accept n<=i~~-~;· and settle the matter. 01_;.~. · o~: _ Court. The respowlible Oft'1c;er ef the petitioner firm one l)ew-si wh:J · ordinarily ~ e s · in Moshi town J• • .an-1.... t d UJr .IU , &MJ:\.las:"0- :r-Q-:vl:r waerac.e • • Tl'-' :..ney ma,naged t c, ~ ,.., ~a,,,.+-, hi . . '+r . . . m 1n Kige>ma region where he was on a bus:'..ness trip. It was agre~d that the respondents were to send him en air ticket to enable him leave Kig-oma for Mtwara via J?~aaro.. It was done as ~eed.t· .M.-t-. ~ ¢0nle to M:w.ara on 24/6/1996. On his arrival here in Mtwar~, he was informed that Mtwara Region Cooperative Union ( 1984) L.td h"!a bec.'1. split up into two bodies; Masasi- <:!oQperative Union. Mtwara Cooperative Union and Newala '!'f"tr.l°""' In the cour,se of - n e ~ - _ attended by members fr;;,. both bodies, Mr. Dewsi was ipformed that both new Unions were prepared t,) pay the debt_ in the ratio of two thirds (2/3) for Masasi-Mtwara Coope:rativeUnion, and one third(~) for NewalE- Cooperative Union~ The terms of ag.:'eement were reduced into writ~ ~d registered in Court _on 10/10/1996. The decree in this case bases· o.~. tha._~_ understanding. The parties went further. Newala Cooperative Union agreed to pay their share of debt in three instalments with effect from 15/11/1996 and were expected to effect their final payment on 15/1/1997• On the other hand, Masasi-Mtwara Cooperative Union was to pay its share of debt in five instalments with effect from ;:0/11/1996 and were expected to effect their final payment on 31/3/1997•· According to Mr. Dewsi, that - 2 - i was the time when both reepondents were engaged in a caehew nut· , buying business, they asked him to stay and wait for the collections they were expecting out of the cashew business. He had to stay as requested. To the SurJ>rise of Hr. Dewsi n~ithei- of the two respondents paid a sing~e instalment even after 7 the cashew•bl,lying sea.son had elapsed, It was then that ,he came to Court and asked for execution of decree by way of attachment of the respondent's properties, which was granted 9 The respondents how·ever9 successfully filed .an application for stay o.f _execti.ti~: Xhey M~ted for more time in whi•h to pay their respective n$t,e by inst~lmr;mt. They were given sixty (60) days in. which . to pay"the . debt while Mr. Dewsi continued to wait. The . i - ~ t s failed to pay within the time. granted, l;Uld so at~hm.e.nt and sale of theiJ: .PJ'ope~ie.s was subsequently ~dered. • • · ... ..i:, • It is the contention of Mr. Dewsi that, he being the Offi4,e:- 0£ the petitioner Company \¥hich has a sound fin.an,c,i,.u PQSition1 · Sh.S-. 4:5 1000/= per day for ·a.11 the time he stayed ill M;wa.a.tf wait them fulfil their now and then promises is quite rea&QJts.bl~, · :• He quips further that the eoUl't· consider also all ; . . . the day.s he' ha.a ~ cU'ound -ad.nee ::i,li.ng his bill of Costs until when the· re.spqnd.e.uts w~li have paid all his ~ney and given him an air ~bls· · ~k'iJf him go back home•~ that :,.s Mtwara-Dar-es-,.salaam-Wo,sh5t, { {' ., · • . ' .. 1. !-t :, On the other hand, the learned counsel for the ree~nts . ., ~' Mre Mlanzi ~ e d that the .decree holder is not entitl.ed to such costs by virtue of paragraph 5 of the compromise suit do ♦ument which \4, he said was to the effect that "the petitioner and t.b.e. .-~Qlldents '-· shall bear their own costs0 • He argued further that item· 4. ·of the compromise deed was to the effect that "the compromise deed shall have the force of a decree"• He thus argued the trucing master to dismiss this bill of Cos~s. I In the alternative, learned counsel Mr. Mlanzi submitted that the bill of costs filed by the decree holder. is defective and bad in law. He argued that it has not itemised the Shs. 25,000,000/= being claimed as Costs, nor did he produce evidence, say r~ceipts, to support his claim. He submitted that failure to do so offends the provisions of rule 53 of the Advocates' Remmuneration and Trucation Rules, Cape9• To further strengthern his point, he refered this Court to.the case of ZUBERI IDD vs. THE REI'UBNING OFFICER, BABA.TI (1974) L.,R.T. 52., He said 3 therefore that there is no sufficient material before me to allow s~oh a claim. In his reply to this, Mr. Dewsi argued that the question of 11 each bearing own Costs".would have been effective only where the respondents would have observed the _terms of the agreement, which he said was seriously falted. He.added that he could not have stayed here in Mtwara, but for them. He also said that Shs. 45,000/;;: he claims per day is his allowance pegged on his status in their Company. • The first issue to be determined here is whether or not by virtue of paragraph 5 read together with para 4 of the Compromise suit document - the decree holder should be precluded from contesting costs in this ' -· matter as argued by learned counsel Mr. Mlanzi for the respondents. It is quite true that paragraph 5 of the compromise deed says "• .. the petitioner and the respondents shall bear tlil.eir own costs"• Further, it is clear that paragraph 4 of that same document says "•••this agreement shall have'the force and effect of a decree of the Court. 11 Emphasis on the word agreement is supplied. According to Mro Dewsi, paragraphs 5 and 4 of the compromise Deed cannot stand because the respondents breached their part of the agreement. I am quite in agreement with Mr. Dewsi here because the parties had agreed that the whole debt would have been paid as per paragraph 3 11 :f'' and n~, of the compromise Deed, which they falted,, IvlA.MCU had agreed to pay thefr share of debt in five (5) instalments with effect from 30/11/199- ahd the final paym~nt was to be paid on 31/3/1997. Similarly'; NECU had agr'eed to pay the debt in three instalments starting 15/11/1996 and the last payment was to be effected on 15/1/1997. On the basis that both of them failed to satisfy their part of bargain, .the contract document was thus violated, hence that it will be very unfair to allow the respondents, on an issue Office kind, to find shelter on a document they never honoured. To the best of rrry views therefore, not withstanding the contents of paragraphs 4 and 5 of the compromise Deed, the decree holder is entitled to coet6 in this matter for reasons amply stated above. Another of Mr. Mlanzis' argument was that the bill of cqe t s filed by the decree holder is defective and bad in law because it did not itemise the Shse25 1 000,000/= he is claiming, further that the decree holder produced on evidence to back up his claime 4 .. Rule 53_of the Advocates' Remuneration and Taxation Rules, 1991 provides that: · " 53(1) Bills of costs shall be prepared in five columns: The first or left hand column for dutes showing year, month and days •. The second for the .number of items. The· third for the p~ticulars 'I of the service charged for. The fourth for the professional charges. The fifth for the Taxing Officer's deductions. Disbursement shall be shown separately at the foot of the bill"•· It is similarly clear that holding 4 in the case of ZUBETI GIGI VS. RUTURNING .OFFICER, BABA.TI AND ~OTHER .(1~74) LRT. n.52 says that where a claim of disbursements. in a Bill of Costs is not itemised and supported by bill or vouchers or accompanied by advocate•s statement r~quired by rul~ 60, a Taxing Master does not have sufficient material before him to decide which disbursements to alloi1 and how much and in, respect ··of whom•. Looking at the Bill of·Costs filed by the decree holder in ·this matter one does not hat'z.ard to find that there is compliance to rule 53(1) of the Advocates• Remuneration and Taxation Rules, 1991. The only thing apparent here is that, sihce the contents in column two and three could have to be repeated for all the 560 days~ in the Sclfne 'Wa:f and manner, the decree holder decided to consolidate the items. In my view, I find nothing wrong with that, and it canno~ be said he v~olated the contents of rule 53(1) of the Advocates• Remeneration and Taxation Rules, 1991._ . This thus, cannot avail the respondents. In the case of ZUBER.I GIGI (Supra), the decree hmlder was claiming disbursements for transport charges, for witnesses who travelled from Babati and Dar-es-salaam to Arusha, and their hotel expenses all of which were lumped together, This fact distinguishes itself to the instant case where the basis of claim is an allowance for al.l the days he was in Mtwara and per the rate indicated,. One needs no supporting evidence to the claim of an allowance of the kind, unless the issued was the authenticity of the statement that he is entitled to get Shs~ 45 1 000/= a day, which was riot at all ,challenged by learned counsel Mr. Mlanzi. In the circumstances therefore, the case of ZUBERI GIGI cannot avail them as well. The last issue is whether or not the claim raised by the decree holder is one of those falling and is acceptable under the Advocates• Remuneration and Tazation Rules, 1991. I' ..l ' t ' -· 5 - There is no doubt that the question of allowances is covered under this law, I may refer to proviso to schedule XI para 1 below (j)~ As to what amount should be paid, the answer is available under schedule XII under the heading ALLOWANCE TO WITNESSES which is ejucidem generis to a party to the suit. Under that subheading,.it is .said that "others: According to their income 11 • In that the decree holder came to Mtwara from Moshi Via Kigoma (where he was on duty) and Dar<8es-salaam on the initiative of the respondents, and that his stayal here was due·to their now and then promises to pay which could not be filfilled, he is entitled to be reinmbursed for ·the 560 days he remained here in Mtwarae The rate of Shs• ~?_,000/= . per day was not challenged by the learned counsel for the respondents, and I have no basis why I should reject it as well. In the circumstances, he is enti·:led to be reininbursed Shs..25,200t000/= for the 56o days up to 3/4/98, · and a further sum at ·the rate of Shsft Shs• .45,.000/= per day from 4/4/98 till payment. The same to bear interest at a commercial r.ate from the ~.date of this ruling till payment in full. It is also decided h~re that the respondents will provide him an air ticket from Mtwara to Moshi. Via Dar-es-samaa.rtl as he requested hecau,se once again, this was not challenged by the l~arned counsel for the respondents Mro Mlanzi. • I B.MoKo .J1MILLA. TAXING OFFICfil< 23/6/98.. Rulling de~ivered in chambers this 24th June 1998 in the • ~ t~ ' • presence .·• of Mr., __Dews;i. for the decree holder,. t Mr. Seminono for ,NECU . . . and Ml'n Libuburu for MAMCU beth Judgement debts. '• /·.a " --~~==-----.. ..- I '." tfJo).t\ . ,,,-:;;:::.- --· ~- s~ J .-~.. ~,!"-' ... I. ~-0• ,DISTR{CT RWISTRAR C ./ 24/6/98.,