20141210 TZHC Arusha

5SbD{= . , • IN THE HIGH COURT OF TANZANIA AT ARUSHA BILL OF COSTS NO. 55 OF 2013 {Originating from High Court Misc. Civ. Appl. No. 24/2010} POLI MERU COOPERATIVE SOCI,ETY LTD -----------APPLICANT ' VERSUS 1 GUSTAV KINYALA LYIMO ------- -------------------RESPONDENT W.R. MASHAURI - T /0 II 18/9/2014 & 10/12/2014 I RULING I The applicant/Decree Holder in this bill of costs Poli Meru Cooperative I Society Ltd. who has the Services of Mrs. Bigeye Advocate is claiming costs I against the judgment debtor Gustav Kinyala Lyimo (as Administrator of the I estate of Victor Makwela) at the tune of I shs.16,268,500.00/= allegedly was incurred in Misc. Civil Application no. 24 of 2010 which was struck out with I costs by the High Court on 16/8/2013. I The judgment debtor has the services of Misc. Neema Mutayangulwa Advocate. ' The bill of costs is comprised of 39 items but mistakenly written 41 ' items. When the application came up iin court for hearing on 11/12/2013, counsels for the parties besought from the court leave to dispose of the application by filing written submissions. Thejr prayer was granted. 1 • I I ' In her written submission in support of the bill of costs, counsel for I the Decree Holder submitted in respect, of the charged instruction fee of shs.3,000,000/= to be reasonable and q)mmensurate with work done and or involved in the preparation and defending in Misc Civil Application No.24 of 2010 which had been filed in court with several payers. The affidavit by Gustav Kinyala Lyimo had 17 paragraphs and that by counsel for the applicant Neema Mtayangulwa had 9 paragraphs all of which were replied • by counsel for the respondent who in pr,eparing for the hearing had to visit the applicable law i.e. the CPC cap.33 R.E. 2002 as well as the law of I Limitation Act Cap. 89 R.E. 2002. By so,doing she involved a long time and energy and therefore entitled her toI payment of instruction fee of shs.3,000,000/= I That, under item 2 is claiming fo~ shs.90,000/= being costs for filing and or drafting and filing 3 counter-Affidavits which exercise was tedious. ' It involved a lot of papers and pens to ,complete the exercise. She prayed I the court to tax the claim at as presented. In a claim of shs.90,000/= as indicated under item 3 she said was i value and costs for papers and Toner to produce nine copies of counter- I Affidavits. The claim of shs.15,000/~I as indicated under item No. 4 is costs for attending court to file the thr·ee counter-affidavits. The claims for attendances at a flat rate of shs.10,000/= as indicated under items No.5,8,9,10,15,16,17,18,26,27,18,26,27 and 28, counsel for the Decree Holder said are fair and reasonable and prayed the court to tax the same I at as presented. That, the same were costs for attending court for mention before the DR. 2' Under items No.6,7,11,12,13, and 14 are claims for mention before the Hon. Judge which is shs.50,000/= per attendance. And the claims at a flat rate shs.50,000/= as indicated under 19,20, and 21 are for attendances before the Hon. Judge for hearing and for hearing this taxation as indicated under item No. 30. Under items no. 22 is a claim of shs.100,000/= for preparation of bill of costs, shs.30,000/= for making three copies thereof as indicated under items No. 23 and 25 and shs.20,000/= for preparation of certificate as to folios. The claims under items No.32 to 39 are for disbursements all of , which make a sub-total of shs.12,233,500/=. That, all the claimed bill of costs at a total sum of shs.16,268,500/= is fair and reasonable. She prayed the court to tax the same as presented. In opposing the bill of costs, counsel for the respondent/judgment debtor started with a bill of costs of shs.3,000,000/= as indicated under item no. l. she submitted that the said instructio~ fee is exorbitant, unrealistic and exaggerated. That, the statutory scales for instruction fee in respect of applications is shs.1,000/=, be it on the low side but that is the law. She referred this to Rule 12 of GN. No.515 of 1991 which provides thus:- ''No advocate shall agree or accept remuneration more than provided by these rules'~ That, in terms of Rule 45 of GN No.515 supra, a bill of costs shall be taxed on the prescribed scale, unless a judge of the high court certifies on special grounds scale arising out of the nature and importance,· or the difficulty, or 3 - urgency of the case that they are to be taxed on the higher scale. The Misc. Civil application No. 24/201o' which is the subject matter of this application for bill of costs was struck out by court after counsel for the responded conceded to the preliminary objection raised by applicant's counsel. Furtherstill the applicant's counsel did not annex a receipt or voucher he issued to his client to acknowledge receipt of the money paid to her as instruction fee if any. In respect of the claim of shs.90,000/= for preparation of 3 counter- affidavits as indicated under item no. 2 and shs.90,000/= being costs for making photocopies, counsel for the respondent prayed the court to tax them off as the same cannot be claimed separately from the instruction fee. The claims are inseparable. For claims for attendances as indicated under items No. 4,5,8,9,10,15.16,17 and 18 which make a sub-total of shs.75,000/= counsel for the responded accepted,the claims to be fair and reasonable. Counsel for the responded opposed the claims of shs.50,000/= per attendance as indicated under items no. 6,7,11,12,13,14, 20, and 21 for want of time frame shown to have been spent in court. That, Misc Civil Application No. 24 of 2010 was heard only once on 16/8/2013. The counsel did not contest on the claim of shs.100,000/= being costs for preparation of bill of costs as indicated under item No. 22. The claim of shs.30,000/= for making three copies of the bill of costs is conclested. Counsel for the respondent submitted is on the High Side. She said that the bill of costs contains 5 pages and in Arusha and Dar es 4 · Salaam the charge of one copy of photocopy is shs.100/=. She prayed the court to tax the claimed shs.30,000/= at shs.1,500/= the rest be taxed off. For the claims under items No. 26-30 counsel for the judgment debtor prayed the court to tax them off for want of dates of attendances for claims of bus fare from Dar es salaam to Arusha at a charge of 33,000/= per trip for 8 trips which make a total sum of shs.528,000/= as indicated under item no. 37, counsel for the judgment debtor submitted was a wrong calculation because 8 trips x 33,000/= equals to shs.264,000/= and not 528,000/=. Nevertheless, the attached bus tickets are for five trips, four of shs.33,000/= and one of shs.28,000/:::; all of which make a sub-total of shs.160,000/=. She prayed the court to tax the same at shs.160,000/= and the remaining be taxed off. The claims for taxi fare charged at Arusha to the total of shs.400,000/= as indicated under item No. 38 mistakenly typed 40 for 40 trips and well as under item 39 mistakenly typed 41 which is shs.1,600,000/= in total of 40 trips in Dar es Salaam, counsel for the respondent prayed the court to tax all of them off for want of supporting receipts and or vouchers. In conclusion, counsel for the respondent besought this court to tax the Bill of costs judicially and allow costs properly incurred by the applicant. In rejoinder counsel for the applicant just made a tautology on what submitted in her submission in chief. She refuted the submission by counsel for the respondent that, the bill of costs of shs.3,000,000/= is exorbitant, unrealistic and exaggerated. That, the claim related to a land measuring approximately 13.8 hectors. That, by and large, the briefing 5 should be tested on the amount of work involved in preparing the hearing, the difficulties and importance of the case and the amount of money involved. That, the instruction fee of shs.3,000,000/= commensurate to the value of the subject matter and work done. That, there are three voluminous affidavits sworn by three different persons, one by Gustav Kinyala Lyimo - 17 paragraphs, another by M.A.J. Kamara - 5 paragraphs and that last by Neema Mutayangulwa Advocate. That, items No. 6,7,11,12,131,4, 20 and 21 are claims in respect of dates when the matter was fixed for hearing. So the claim of shs.50,000/= per attendance is reasonable and therefore ought to be taxed as presented. That, the claim of shs.30,000/= for 15 reprint copies as indicated under item No. 23 and shs.30,000/= for preparation and making copies as indicated under items No. 24 and 25 is fair and reasonable. The money was incurred for buying papers and tanner which is allowed under schedule xi 2(c) of GN. No.515 ' of 1991. That, the claims under items No. 26-29 are for attendances in court for mention and did not put the dates as that could be fixed by the court as and when necessary. That, the claim under item 30 was for attending in court for receiving ruling, she did not put a date as the date of ruling was reserved. She therefore anticipated because the reserved ruling should one day be ' delivered. That, the claim of shs.}00,000/= as perdiem covers for Hotel and accommodation, drinks and food. So the claim is not on the high side. Counsel also prayed the court to tax the amount as indicated under item ' 36 and 37 as presented irrespective of the fact that few bus tickets were I 6 - attached. That, the attached bus tickets are samples to justify that the bus fare from Dar es Salaam to Arusha and back is as indicated on those bus tickets and can assist the court in its decision. Counsel for applicant admitted had not attached Taxi fare tickets. She besought the court to take judicial notice that so far as she resides in Dar es Salaam must have used taxi transport so much in Arusha when attending the case. Upon so submitted, she prayed the court to tax the whole bill of costs of shs.16,268,500/= as presented. The question to be asked in this application is whether the instruction fee as well as other costs charged in this application are fair and reasonable. Starting with the charged instruction of shs.3,000,000/=, I have considered all what have been submitted by counsel for the applicant in particular that, the work done in preparing for hearing and or defending of the case commensurate to the charged bill of costs. That, the Misc. Civil Application No. 24/2010 had in the applicant's affidavit several prayers and bulk affidavits filed by Gustavu Kinyala Lyimo and Miss Neema Mutayangulwa. That all the affidavit's were replied by counsel for the Decree Hadler. However, the application No. 24 of 2010 was not fully tried. It was struck out with costs upon counsel for the judgment debtor then applicant conceded to the preliminary objection raised by respondent now Decree Holder. 7 It is trite case law that the moment an advocate is instructed to sue or defend a suit he becomes entitled to an instruction fee, but it is only necessary to look at the concludihg words of the particulars of the I instruction fee. If at any stage of a suit before trial is withdrawn in court by any of the parties or any of the parties concedes to a preliminary I objection raised by the other part the concession of which led to the end of I the suit with costs by whatever order of the court, the advocate would, as . I it is seen, be eligible to claim the minimum I instruction fee but could not properly claim in respect of the work he has not done. The entitlement under the instruction fee grows as the matter proceeds. (See Mayers and another v/s Hamilton and others (1975) E.A. 13). For the forgoing reason, 1 the charged instruction fee of shs.3,000,000/= on a matter which 1was not fully tried is on the high side. I The same is taxed at shs.2,500,00/:=. I In regard of the claim of shs.90,000/= for preparing three counter- 1 affidavits and also shs.90,000/=being costs for photocopies of the three I counter-affidavits as counsel forI the respondent/judgment debtor submitted, such claims for money i,ncurred in buying stationeries in a suit and making photocopies of instruments pertaing with a suit as indicated ' under items No. 2 and 3 items are part and parcel of the instruction fee charged. They cannot be claimed separately from the instruction fee. All the claims of shs.90,000/= each as indicated under items no. 2 and 3 of the bill of costs are hereby1 all taxed off. The claims for attendantes as indicate under items No. I 4,5,8,9,10,15,16,17,l8,26,27 and' 28 which make a sub-total of I 8 · shs.125,000/== are fair and reasonable. The same are taxed at as presented. The attendances claims for hearing and sometimes for mention at a flat rate of shs.50,000/== per attendance as indicated under items No. 6,7,ll.12,13,14,19,20,21,29 and '30 which make a sub-total of shs.550,000/== are extremely on the 'high side. Very far from the scales for attendance prescribed under schedule XII headed "ATTENDANCES" which is shs.750/== per every 30 minutes of stay in court. However, on my part, being Taxing Master acting under the provisions of Rule 11 of GN No.515 of 1991, I do hereby tax each attendance of shs.50,000/== s1,.1pra at shs.10,000/==. The rest is taxed off. This make a sub-total of shs.110,000/==/ taxed at. The claim of shs.100,000/== for preparation of the bill of costs as indicated under item no.22 is fair and reasonable. The same is taxed as presented. The claims of shs.30,000/== fbr making 3 copies, shs.20,000/= for preparing certificate as to folios and shs.30,000/= for making three copies as indicated under items No. 23,24 and 25 which make a sub-total of shs.80,000/== are all taxed off. Going to the claims for disbursements as indicated under items No. 32 to 39 which is mistakenly typed as item 41, the following is my taxation of the items respectively:- The claims for shs.4,500/== for filing counter-affidavits, shs.3,000/== for filing this bill of costs, and shs.2,000/== for filing of preliminary objection 9 .. which make a sub-total of shs.9,500/=_ as indicated under items No. 32,33, and 35 are fair and reasonable. They are taxed at as presented. The claim for perdiem of shs.100,000/= per day for 44 days which make a sub-total of shs.8,800,000/= is also unconscionable. The perdiem for a lawyer who has a status same as that of a judge of the High Court is payable at shs.85,000/= per diem i~ cities like Arusha, Mwanza, Dar es Salaam etc. I would award counsel for the applicant for all 44 perciem at a ' rate of 85,000/= of what I do but not for all 44 days for want of specific days shown in the bill of costs as well as supporting documents i.e. guest house receipts and bus tickets for all 44 days. In lieu thereof I award her 22 perdiems at a flat rate of shs.85,000/= which make a sub-total of ' shs.1,870,000/=. This therefore means that the claimed perdi~m of ' shs.8,800,000/= as indicated at item No. 34 is taxed at shs.1,870,000/= \ ' the remaining is taxed off. The charges for transport from Dar es Salaam to Arusha and back of shs.896,000/= being bus fare at a flat rate of shs. 28,000/= per trip for 32 trips and shs.264,000/= mistakenly. calculated to shs.528,000/= at a flat rate of shs.33,000/= for 8 trips as .'indicated under items No. 36 and 37 which make a total sum of shs.1,160,000/= are fair and reasonable. The same are taxed at as presented. The charges of Taxi fare at a flat rate of shs.5,000/= in Arusha for 40 ' trips is on the high side. A charge of shs.5,000/= per trip is taxed at shs.3,000/= per trip in Arusha and this makes a sub-total of shs.240,000/=. The rest is taxed off. And in Dar es Salaam, the charge of ' shs.20,000/= per trip by Taxi is or, the high side. The same is taxed at i • shs.10,000/= per trip. These make a sub-total of shs.800,000/= the rest is taxed off. i In the event, the whole claimed bill of costs of shs.16,268,S00/= is taxed at shs.5,035,000/=. The remairiling is tax off. / I I .R. MASHAURI I. TAXING OFFICERI 10/12!/2014 I I I Delivered in court in the absence of all parties this 10/12/2014. Parties to i be informed of the outcome as well a~ explained their right to appeal. I . I TAXING iOFFICER 10/1~/2014 ill