20101005 TZHC Dar es Salaam1

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IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CIVIL CASE NO. 173 OF 2008

NARAYANAN RADHAKRISHMAN NAMBIAR ..... . PLAINTIFF

VERSUS FED HA FUND LIMITED .................... 1 ST DEFENDANT INTERCHICK COMPANY LIMITED ...... 2ND DEFENDANT TANZANIA BREEDERS & FEED MILLS LTD ........... . 3RD DEFENDANT Date of last Order .. 11/8/2010 Date of Ruling .. 5/10/2010

RULING Shangwa, J. This is an application for security for costs. It was presented for filing by counsel for the Applicants / Defendants, Mr. Mwandambo on 30 th March, 2009. It is 2 supported by affidavit of the said Mwandambo,. Advocate. The security for costs which is applied for is USD 75,600.00. It is common ground that the Plaintiff is a foreigner and that he has no immovable assets within the jurisdiction of this court. It is common ground also that as the plain tiff is a foreigner and has no immovable property within the jurisdiction of this court, he has to pay security for costs. The matter which is in dispute is the amount of USD 75,000.00 which is applied for by counsel for the Applicants / defendants to be deposited as security for costs 1n form of cash, banker's guarantee or banker's cheque. Counsel for the Respondent /Plaintiff Mr. Eustance Rwebangira described the amount applied for by counsel 3 for the Applicants / Defendants to be deposited as security for costs to be something like a penalty. He said that, it is about 13% of the claimed amount. He gave two offers of the amount to be paid as security for costs. First, he offered for USD 3,000.000 instead of USD 75,000.00. Second, he reluctantly offered for USD 6,000.00 instead of USD 75,000. 00 basing on 1% remuneration fees having in mind that under the Rules, there is . no fixed percentage for remuneration

fees payable 1n foreign currency to Advocates. Whereas counsel for the Respondent / Plaintiff submitted that the amount of USD 3,000 is a reasonable amount to be paid as security for costs, counsel for the Applicants / Defendants submitted that payment of the said amount as security for costs would be a mockery of justice. He argued that as the Plaintiff is claiming for a . \ 4 total of USD 667,185.50 against the defendants, payment of USD 75,600.00 as security for costs is proper as the case between the parties involves liquidated claims against three defendants which attracts 3% x 3% of the claim for each defendant which amounts to 9%. As it appears, the issue which is involved in this case 1s how much money should be paid by the Plaintiff / Respondent as security for costs. Learned counsel for the Applicants / defendants referred the Court to Commercial Case No. 19 of 2000 Serafim Antunes Afonso V. Tongol Fishing Company Ltd in which a similar issue was raised and considered by the court Nsekela, J. as he then was. In that case, Nsekela, J. held that under 0. XX V r. 1 (1) of the Civil Procedure Code, 1966, the court has a discretion to order for security for costs and that it has to fix such sum as it thinks just, having regard to all circumstances of 5 the case. Furthermore, it was held by his Lordship that it is for the party seeking an order for security to put before

the court material that will make the court to make an estimate of the costs of litigation. In this case, both counsel have given me the basis on which the amount of security for costs should be determined. The basis which has been given to me by counsel for the Applicants / defendants is 9% of the amount claimed on grounds that there are three defendants and that each defendant is individually liable in so far as payment of costs are concerned. The basis which has been given to me by counsel for the plaintiff / Respondent is 3 % chargeable by Advocates where the amount claimed exceeds Tshs. 10,000,000/= as it happens to be the case here. ,- j.1 \ \ 6 In my view, the basis on which the amount of security for costs has to be determined is embodied in Order XXV r. 1 ( 1) of the Civil Procedure Code 1966 which gives discretion to the court to order the plaintiff or plaintiffs to give security for payment of costs. 0 XXV r. 1 (1) of the Civil Procedure Code provides inter - alia that the court may, either of its own motion or on the application of any defendant, order the plaintiff or plaintiffs, within a time fixed by it, to give security for the payment of all costs incurred and likely to be incurred by any defendant. Counsel for the Applicants / defendants did not tell me as to how much costs have been incurred by Applicants / Defendants. They have not told me also as to how

much costs are likely to be incurred by them. Now, should I base my decision of how much security for costs has to be ,.., deposited on the basis of 9% of the amount claimed by the 7 Plaintiff as proposed by counsel for the Applicants / Defendants or on the basis of 1% or 3% of the amount claimed by the Plaintiff as proposed by counsel for the Plaintiff / Respondent. The answer is no. This is because there is no material to show that the said amounts constitute all costs which have been incurred or which are likely to be incurred by the Applicants / Defendants. The basis given to me by each counsel for the parties is merely thereoretical. At any rate, the 2 nd and 3 rd defendants are facing a claim for payment ofUSD 410,000.00 and USD 257,185.50 respectively which was advanced to them by the plaintiff on 17/12/1998 as a loan plus agreed interest of 13.5% per annum see paragraph 14 of the plaint. Once it will be found that the said defendants are liable, judgment might -;r 8 be entered in favour of the Plaintiff / Respondent with costs to be paid by them. As the costs which have been incurred by the Applicants / Defendants and which are likely to be incurred by them have not been revealed to me in express terms, I will in my discretion, which I here by exercise order that the plaintiff/ Respondent should deposit in court USD 8,000.00 as security for costs to be paid within a period of thirty days from today. - A .Shangwa

JUDGE 5/10/2010 I 9 · Delivered in open court this 5 th day of October, 2010 in the presence of Mr. Rutakyamirwa for Mr. Rwebangira for the Plaintiff and Mr. Rutakyamirwa for Mr. Mwandambo for the defendant. Mention on 9/11/2010.

JUDGE 5/10/2010