20110629 TZHC Dar es Salaam

1 IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 168 OF 2007 \. (Original Misc. Application No. 23 of 2007 of Morogoro District Court) SHABANIJAFARI . . . . . . . . . . . . . . . . . ~APPELLANT J VERSUS MIKUMI NATIONAL PARK . . . . . . . . . . RESPONDENT Date of last order - 14/4/2011 Date of Judgment - 29/6/2011 JUDG,MENT Shangwa, J. This appeal was presented for filing on 22 nd October, ' 2007. The Appellant Shaban Safari was dissatisfied with the ·Ruling of Kahyoza, RM. delivered· on 5 th September, 2007 in Miscellaneous Application No. 23 of 2007 filed in the District Court of Morogoro at Morogoro. He has now appealed to this court on the following grounds:- 2 1. That the trial Magistrate (Taxing Officer) erred in law for not awarding him costs as awarded to him by his Lordship Kalegeya, J. as he then was in High Court Civil Case No. 127 of 2005. 2. That the trial Magistrate erred in law and fact by not' taking into consideration the fact that the order of being paid his costs issued by his Lordship Kalegeya, J. did not specify some categories of costs which he deserved to be paid and which were omitted to be included in his ruling. 3. That the trial Magistrate erred 1n law for not including costs which are his statutory rights. namely:- (a) House rent for two years and six months for two rooms@ shs.6,000/= per month= 12,000/= x 12 x 2½ = 360,000/= (Folio 11 of his bill of costs). 3 (b) Increased house rent shs.20,000/= X 12 X 2½ =600,000/= (c) Meals costs per day shs.10,000/= x 30 x 12 x 5 years= 18,000,000/=. (d) Hiring a Mkokoteni for business at a rate of shs.4,000/= 30 x 12 x 5 years - Shs. 7,200,000 / =. 4. That the trial Magistrate erred in law and fact for not awarding him costs of living at Morogoro waiting for payment of transport to his place of domicile. The appeal was argued by way of written submissions ordered by the court on 15 th November, 2010. The Appellant was represented by Alhaji Said El-Maamry, Advocate and the Respondent was represented by Mr. R.K. Nsimba (ESQ), Advocate. 4 In his written submissions, counsel for the Appellant submitted that although taxes and daladalas are required by law to issue tickets, tax drivers and daladala conductors do not. For this reason, he prayed that all items not supported by receipts should be approved as claimed. He pointed out that for the items that were supported by receipts, there is no evidence to show that those receipts are forged. He contended that as the Applicant has never been charged and convicted of forgery, and, as a person is deemed innocent until he is proved guilty, it was wrong for the trial Magistrate to disallow the amount claimed by the Appellant on grounds of forgery as doing so is tantamount to condemning him unheard. On the question of using the same taxi and the inconsistency of numbers and dates on the receipts which 5 he was given, counsel for the Appellant contended that it is common for businessmen to develop relationship with customers so that they may go to them always and that the inconsistency of numbers on those receipts cannot be associated with the Appellant as those receipts were not given to him on the same date for him to compare their numbers. It was further submitted by counsel for the Appellan~ that items 41-43 concerning costs of house rent were properly raised. He said, the Appellant used to rent a house for which he used to pay rent and that he cannot go to court again for such claims as he cannot afford to pay the expenses to be incurred. Thus, he argued that it was wrong for the taxing officer not to allow such costs. 'I 6 Counsel for the Appellant drew the attention of this court to the instruction fee for this appeal amounting to Tshs.1,000,000/= and the cost of three times attendance at a rate of Tshs.30,000/= per attendance amounting to Tshs.90,000/=. Total Tshs.1,090,000/=. He requested this court to grant the same. On the other side, counsel for the Respondent submitted that the decision of the taxing officer was based on the principle laid down in the case of Zuberi V. Returning Officer and Another (1973) E.A 33 in which it was decided that all items claimed must be supported by receipts or vouchers. He appealed to this court to apply the decision in the case of Zuberi cited above in resolving this appeal and not otherwise. Counsel for the Respondent further submitted that Bills of costs are strictly meant for attendance to court 7 during court proceedings only. He contended therefore that costs of Appellant's daily upkeep, meals for 5 years, house rent or even costs for hiring of a Mkokoteni as claimed in the Bill of costs are devoid of merit and misconceived in law. Furthermore, counsel for the Respondent submitted that the Appellant's counsel has failed to defend the authenticity of the submitted taxi receipts and that he has simply adduced evidence in support of the unfounded claims which is unprocedural. With regard to the Appellant's claims in items 41 - 43 involving house rent, counsel for the Respondent submitted that new claims cannot be included in the Bill of costs as doing so is contrary the Rules of procedure and Taxation of costs. He disagreed with the submission by counsel for the 8 Appellant that raising the claim of cost for house rent in the Bill of costs is right. He contended that do~ng so is un procedural. In addition to that, counsel for the Respondent submitted that it is unprocedural for the Appellant to claim for costs in this appeal. Having digested the submissions and contentions by counsel for the parties, I now proceed to determine the grounds of appeal raised by the Appellant in his Memorandum of Appeal. First of all, it appears to me that the grounds of appeal in this case are interrelated. So, I will consider them together. The first and second grounds of appeal attract a question as to what Kalegeya, J. (as he then was) meant at page 12 of his typed judgment in Civil Case No. 127 of 2005 when he said and I quote:- "Appellant is also awarded costs". 9 According to the Appellant, what Kalegeya, J. meant is that he should be paid by the Respondent all costs including costs of House rent and meals for five years while waiting for payment of his fare from Morogoro to his place of domicile at Kigoma and costs of hiring a Mkokoteni for his private transport business which he was doing for the period of five years while waiting for payment of his fare above mentioned. To him the order of Kalegeya, J meant that he should be paid all categories of costs as he did not specify what sort of costs he should be paid. I agree with counsel for the Respondent that the Appellant's understanding of what Kalegeya, J meant is a misconception at law. This is because what Kalegeya, J meant are costs of the suit and nothing more. Costs of the suit as we know them are for example costs of attendance in court for mention, hearing, judgment and or for ruling, 10 fare from home to court and back home, instruction fees, preparation of documents & reproduction of the same by photocopying devices. In taxing the Appellant's Bill of Costs, the trial Magistrate allowed Tshs. 95,000 / = claimed on item 1 of the Bill of costs as Advocates fees. That was correct. He also allowed a total of Tshs. 11,000 / = as costs of attendance on items 2 - 12 each at Tshs. 1,000 /-. That was correct. On items 13 - 17, he used his discretion and allowed a total of shs.22,500/= as costs of attendance in the High Court of Tanzania at Dar es Salaam each at shs.4,500/=. That was correct and I cannot interfere with the amount he decided to allow on those items. On items 18 - 40, the taxing officer allowed Tshs.1,000 / = as costs of attendance on each item. Thus, he allowed a total of Tshs.23,000/= on those items. In total, he allowed Tshs.151,500/= which included 11 the Advocates fees of Tshs.95,000/= and Tshs.56,500/= as costs of attendance both in the court of the Resident Magistrate at Morogoro and in the High Court on various dates. That was entirely correct. Now let me consider as to whether or not the taxing officer was correct in disallowing costs of transport to court which were claimed by the Appellant at items 2 - 10 and items 12 - 40 of his Bill of costs. In his ruling, the taxing officer agreed with counsel for the Respondent that the tickets issued to the Appellant for use of taxi are forged receipts and that therefore all items on which transport charges are claimed have nothing to support them. In doing so, he relied on the case of Zuberi V. Returning Officer and Another ( 1973) E.A. 33 in which it was held that all items claimed must be supported by receipts or vouchers. 12 As a matter of principle, all claims concerning transport charges 1n this case ought to have been supported by receipts or tickets. Such tickets ought to have been genuine ones. In this case, the taxing officer found that the Appellant's transport claims were supported by forged receipts and he disallowed them. For me, I think it was correct for him to disallow them. By disallowing- such claims which the taxing officer said were supported by anti-clockwise dated and numbered tax receipts, it cannot be said that the Appellant was convicted of the offence of forgery without being heard as it was done by counsel for the Appellant at page one of his written submissions . . Instead, the taxing officer should be commended which I hereby do for his decision not to betray justice by allowing taxi charges supported by forged receipts. 13 It is true as submitted by counsel for the Appellant at page one of his written submissions that taxi drivers and daladala conductors do not issue tickets or receipts. However, the principle which was laid down in the case of Zuberi already cited that all items claimed must be supported by receipts or vouchers cannot be ignored for one simple reason that without a ticket or voucher it cannot be established that the amount claimed is exactly what was incurred by the claimant. Counsel for the Appellant urged the Courts not to "bury their heads in the sand and rely only on the Zuberi case" and not to "close their eyes -to facts which are glaringly in evidence in the country''. However, courts should also not close their eyes to the fact that it is a duty of every passenger who boards a taxi or a daladala to demand a ticket or a receipt after paying his or her fare. Therefore, like the taxing officer this court cannot allow costs of transport on the items which 14 were not supported by tickets or receipts on mere grounds that taxi drivers and daladala conductors do not issue receipts in Tanzania. The question which fallows is whether this court can allow the costs for this appeal. As already stated, counsel for the Appellant made an extraneous claim for be1ng -paid - instruction fee of Tshs.1,000,000/= for this appeal and Tshs. 90,000 / = for three times of attendance for this appeal · each at Tshs.30,000/=. For me, I agree with counsel for the Respondent that it is not procedural to award costs for this appeal at this premature stage. In his rejoinder submissions, counsel for the Appellant said that the court can award costs for this appeal to avoid another hearing for taxation of costs. 15 \ With respect to counsel for the Appellant, one cannot claim for costs in a case which he or she has not won with costs. Therefore, it was not proper for him to claim costs for this appeal which he has not yet won with costs. In fact, this appeal stands to be dismissed. For the reasons, I have given in this judgment; I hereby dismiss it with costs. kv~ A. Shangwa JUDGE 29/6/2011 the presence of Mr. R.K. Nsimba for the Respondent who also holds brief for Alhaji Said El-Maamry for the Appellant and in the presence of the Appellant himself. ~ A.Shangwa JUDGE 29/6/2011