NA TZHC Dar es Salaam2 2

.• .' • versus e,. • • • l<ULING • .. Printpe. :;.•k 'i'a:1:,:;2.nia Ltu.. was the plaintiff in th:e s.uit aga.inst_- Tanzania l::itanc!.f;\rd (Nespapers) Ltd~' whereby t~e plaintif·f 1 ·s company, throuGh th0ir lawyer M/s Mkono and Company ,1dvocates .J wc.1.s awarded jut"•.[:;61,18nt py the late learned Judge, Mro Justi€e i.~ubama 1' as prdyed on the plainto ~or easy of reference t~e prayers ~ire ·l.. ~s .. follows:- . ( 1) J"udi.Je111011t a:;2-.inst the defendc;.nts in the sum of Shs. G7, c7~-, 4L~3/co; ·. .... . (2) Juclgef,ient. · Z-&,D.ins.t the defent'l.ants in the sum of .Shs •·. 1:1-· •• • -.. ,__;, l:. . ··•· •. 25;~LrL'..;354/.?:>"ti·, . . b~ing .. interest at 31% per annum on tlie. debi° from its tlue date its due date to lGth March, 1939; (3) furth .. r interest at 31% per.annum on shso 93,016,797/30 from 11th M~rch, 1~89 till the date of juugement; (4) interest at 12% per annum on the decretal amount from, the tebt of ju6tement till payment in full; 65) dama[,OSj (t;) Ce"sts; Cl e-· ,. { 7) Inter st at 7% per annum on the costs from the date of . . •. judgment till payment thereof in full; (8) Such further or other reliefs as the honourable court may deem.fit., Frmn the procee6.. in,?-,s of the case it is clear that the court allowed, ,,. ex-parte, all the c:l!.-Lims prayed on the plaint, ioe items 1, 2, 3, 4, 5; 0 .;i 6 anc.l 7. Th~ award was ~ranted after t4e plaintiff·, th1·oug~ M/s 1'1kono and Compc:1.11y Advocates, filed an affide.vi t to prove the claim ex-parte, ~she w~s cranted leave to do so, and upon the affid~vit · so f'§.j,,ed juClserncnt was granted ·as shown above (as prayec1. in-. the plaint2. - 2 - 'l'hat ju(ce;r.1ent having been given, the plaintiff's counsel filed a bill of costs to be taxed by the taxing Maste:i;: 0 , '.118 :ication proceedings started way back in 1989 before the New ~u18s, cited as the Atvocates l.:euiune1·ation and taxation of Costs li:u].es,.· 1991 came into operation in 1991., ' - Since 27th November, 1989 there were various adjournments for the taxation hearing and the main reason wa.s that juc'. 0 eti1ent debtor was not appearing despi,je notices served on him and, o:..· his ac,voccite, 'J.'his process went up to 12th February, 1991 when f1iro KctijaL~e, the then Leputy hegistrar., allowed an ora;l. application by i~he counsel for the decree holder to proceed ex- parte provinc the claims raised on the bill of costso Howsver ta~ailion die~ nut t~.ke place until 3rci ,-.uc:;ust, 1992 when Hro Ivinzava, lear·necl cui.:'.n: el from the Tanzania Let,al Corporation, appee.r.i.t;g fc1· the :JUS:~gernent d.ebtor, was opposed by Mr., l(~Lmeja to appear for the ju~~ernent debtor on the Braund that he did not hctve any loc~~---~:t?E_~l_~-~- This oral applicc1.tion was made before: ~r. Mushi, the ~e~uty hegistr~r, who in his ruling directed, or ~ ' . ordered thctt the c-:rnnsel for the judgement debtor did not haVe right to ar~ue this matter before seeking for leave for two matters:- \ (1) leave for setting aside the ex-p&rte order made on the d~tes above given; (2) leave tc .::,1Ypear ~or judgement debtor since he never macLe ar,pee,renc'e in the rnain suit, both applications to be made fcrmally by way of Chamber ~pplicationo J f hr. Mnzavas, lecc:.nec~ counsel for the judgement ,dQbtor filed a chc1.n1ber ar,,plici..d;ion and although OJ:l s.e-vaJ.¥11 oC:casions t}1e res1...-.,J1de.rrt. decree hold.el' w""s given a chance to file a count.er ~ffid.c;;vii; -t:hat' legal~~pportunit;y w2.s not utilisedo FinaL y, however, filr 0 Nnzava was allowed to Jroceed ex-parte to op~ose the bill of costs bec~use the decree holde1' f.:,:r reasons not known on the court left the appli- cation ftir tc:,XillL, the bill completely unattencled in court. I entiJ:'-~ly .::.,c;:.:·ee with Nro JVlnz~va thc:t the only i te,il or, the b•ill for uiscussion is item No.2 which is in respect of instr't1ctions to sueo Un this item th~ decree holder 1 s advocate has claimed for bhs. lu,:5?0,?38/9O which is about 10% of the principal cl~im .. • B_ut accordinG t0 bchedule l.X. of the .i-cclvocates' l{emUliler£,tion a!ld ·raxation of Costs tl1e taxing master is bouna. to follow the proscribed fees on rnatte~s which are contentionso The present suit, however, as Mro Mnzava lws corr~otly put it, was not argued ~n court, it was clecio.ed ex-pa:cte ... irnc1 the matter been contepded as provided - 3 - unt.i.er i.:::>chedule IX the tc:xing master is allowed to tax the claim at 3% at minimum a11('. a.t 7% as maximum of the total liquidc,ted sum claimed in the :vlai11t, if the claim is over bhs. 3, UUO, 000/=. This means thc-<t 3% 2.t minimum rate of about .Shs. 100,UOO,OQO/= as princiapl is about Shs. 3,uuu,uuO/=, and the fee 'at 7% would be ~hs. 7,UuC,UGU/=o Yet, unuer the same Schedule (IX), it is pro- -. viuid th~t where the defendant does not dispute the claim and does not file def2nce, the scale of fees shaould be 2/3 (two ·thirds) e,f the fees above. 'l'his means that 2/3 of either Shs .. 3,G00,000/= o:c 7,uoo,ouo/= is either ~hs.2,0G0,000/=, or appro- ximately at :jhs. L1-,790,ooo/=, respectively. In the instant suit the plaintiffs, thruugh their advocute, filed a plaint which was annexed with documentary exhibits. The defendants never filed any written StD.t;ern,.nt of defence, and neither dia they dispute the claim. Therefore the applicable principle is the one enshrined unu.er .Schedule IX reciuirint; the taxing master to compute the amuunt claimec: at 2/3 of the prescribed fees under the Schedule. I hi::l.ve gone thrr.,u;;h the plaint and I am satisfied th~t apart from the fact that the IJi'infipal sum claimed was indeed a oolassal pecuniciry fi;_;u:.:·e, th.z issues, Prima fc.1c i!. are not simple o 'I'he learned counsel fo:c the plaintiff must have mau.e a thorough research .on the facts of the case, surely he must have studied the law on wLticll the claim was based and other matters :r-elatin:; to tht: the case. u11 tho 1Jrernises, us inc the 2/3 rule as provi(led for in terms of bchec,ule S of the i-.clvocate• s remuneration anc1. Tc: .xation of 1 costs it is i;JJ c0n=:i .ereu. view that an award of ~hs .. 5)::,,_l..,G::,~/= as a1::.,ainst the cl,dw of just above bhs. l\. ,ooo, UGO/= as costs for instruction to sue is justiceable in the circumstances of the case~ Accordingly item nmi1ber two on the a.i_Eenda is taxed. at Sp:s. 5,000,0CJO/=o As for tho items on disbursements, it is correct, as rightly so statetl by Hr. hnzava, that under hule·55 (l) receipts and vcuchers f0~ all disbursements ch~rged in a bill of costs togeth~r with all clocuments or drafts or copies thereof shall be· produced on taxation. Item 41 talks of court fees and the amount claimed. is quite mart,inul anC:l in my view it is just fair and reasonab_le that such incidental costs should be allowed in favour of the plaintiffo ~ In sum,-since all the other items on the baill are according to scale this mrans that the taxed bill is .:.ihs. lG, 578, 9GGo40 • • minus shs~• ~; 0p•)'l;.~OO/=, which is equal to shs. 5,578, 96G.~o.