CIVIL CASE NO 247 OF 2002

IN THE HIGH COURT OF TANZANIA tl AT DAR ES SALAAM CIVIL CASE NO. 247 OF 2002/ SJANBIC BANK............................PLAINTIFF VERSUS NATIONAL MEDIA GROUP AND 2 OTHERS....... DEFENDANT RULING MI K A Y O , 3 This reference has been taken out by Mklono & Co. Advocates from the ruling of the Taxing Master in a taxation in Civil Case No. 247 of 2002. The reference has been brought ^under Rule 5 (1) and (2) f the Advocates Remuneration and Taxation of costs Rules, 1991 and Section 95 of the Civil Procedure Code. '■ The history of this matter is not complicated. On 4/7/2002 the applicants herein sued the respondent for libel and claimed for payment of US $ 30 million as damages. After service, the respondents filled a written statement of defence on 5/8/2002 denying liability and claiming for costs. The case went through the usual litigation procedures thereafter. Mediation was recorded to have failed on 8/7/2003. On 6/5/2005 Prof. Mwaikusa for the plaintiffs (present applicants!) prayed for leave to withdraw the case. .Mr. Ngalo for the defendants (present respondents) did not object, but asked for costs, which were* awarded subject to taxation. The Taxing Master taxed the bill*; v Tshs. 450,223,500/=. The applicants are dissatisfied and have therefore filed this reference. The reference was argued by Prof. Mwaikusa, learned counsel and resisted by Colman Ngalo, learned coupsel. Prof. Mwaikusa's main reason for coming to this court is because he says the instruction fee awarded is extrem ely high, consid^^ig ] 1 ‘f that the case did not go to full trial. He arglied that in assessing the fees to be taxed, the Taxing Master has discretion, but is guided by a number of considerations. He said that the scales provided for in the Advocates Remuneration and Taxation of costs rules are intended to guide the Taxing-M aster and not to l’ command him. Prof. Mwaikusa took the view that the Taxing Master has to justify the award on instruction fees and not to merely rely on the scales. Therefore, he continued the Taxing Master should have considered that the case never took o f f ^ The learned counsel referred this-court to th^ case of A t t o r n e y G e n e r a l V s A m o s S h a v u T a x a tio n R e f e r e n c e N o . 2 5 / 2 0 0 0 (Court of Appeal - ■ * Dar Es salaam - unreported) and urged the court to avoid extremitism. .1 i ' 1 In arguing for the respondent, Mr. Ngalo, in direct respons< to the principle laid in A m o s S h a v u told the court that it is not an ordinary person who goes to court to claim for Us $ 30 million as damages for a defamatory publication. In the m atter at had, learned counsel said, had a' defence not been filed, the I ' applicants here would have asked for judgm eht under order VIII as amended and the law would have allowed them to get US $ 30 million. Mr. Ngalo went on and urged that the guiding law in taxation is the Advocates' Remuneration andTaxation of costs Rules. The rules have fixed as 3% for contentious proceedings, and the Taxing Master can only use his discretion in taxing more not less. The true bill in the present matter should have been Tshs. 900 million but the Taxing Master taxed it at 50% only. He said the Premchand Case as referred to in Am os Shavu (Premchand Raichand V. Quarry Services of Hast Africa i Limited ( 1972V EA 162) is no longer good Haw because it has no bearing to the present law on taxation. Besides'he said, Amos Shavu is not applicable here because jthe rules were not applicable before the Court of Appeal. i Learned counsel went on to observe thdt the proviso under Schedule IX entitles a person to two thirds (2/3) of the claim . when that person has not filed a defence. Injthe present matter, he said, they got less than 2/3 although they had filed a defence. He went on to say that the two cases referred by learned counsel for the applicant, that is, Prem chand and Amos Shavu emphasize one thing, that the High Court can interfere only if the Taxing Master acted on wjrong principles which was not the case here. Learned counsel for respondents prayed for dismissal of the reference with costs. Let me start with the general principles that govern a judg i sitting on a reference such as this. The taxdtion of instruction fees is a matter in the Taxing Master's discretion. Courts are reluctant to interfere-unless that discretion has be^n exercised unjudicially. What is this unjudicial exercise of discretion? This has generally been taken to mean acting on wrong p r in c ip le or applying wrong considerations in coming to ijhe decision of the Taxing Master. This position was taken in som e of the leading cases on taxation reference (see for exam ple R o b in H a s h a m V s A lib h a i K a d e r b h a i.(1 9 3 8 ) I T L R 6 7 6 , P r e m c h a n d R e ic h a n d V s Q u a r r y S e r v ic e s o f E a s t A f r ic a L im it e d ( 1 9 7 2 EA 1 6 2 The position was applied in A m o s i h a v u (supra). In i my opinion, the meaning of all this is that once the Taxing Master acts on the right principles and applies the right considerations in coming to his decision, this court should H interfere on the amount taxed. It was held in the case of Ujaqar Singh Vs Mbeva Cooperative Umljm. f 1968^1 HCD n 173- that:- "It would be im proper to consider a policy of reducing fees in assessing the instructions fee to be aw arded The meaning of this to me is that once the right principles have been applied, and once the right considerations have been taken into account, it would not be proper for this court to i interfere just because the fee prayed for appears high. I In the case of First Am erican Bank o f Kenya Vs Shah and others r20021 EA 64 Rinqera, 3 had this to say:- "It would be an error o f principle to take into account irrelevant factors o r o m it to consider relevant factors. And according to the Advocates Remuneration Order itse lf som e o f the relevant factors to take into account include the n atu re and importance o f the cause pr m a tte r, the am ount o r value o f the subject m a tte r involved, the interest of the parties , the g eneral conduct oi the proceedings...." .! In A m os Shavu the Court of Appeal h^d this to say:- " An award of a l$rge sum as instructions fee will only be ju stified by the nature o f the case , its com plexity , the time taken up by the hearing or argum ents, the am ount o f research involved etc". The court went on to quote from the case of Smith V. Buller ri875^ 19 Ea.473 as per Sir R. Majlins, V.C. and said;- " W hilst stressing that costs g ranted should not be excessive or oppressive b u t only such as are necessary for the conduct o f the litigation and that the court will interfere to reducp the quantum in proper cases, h^ld that he was entitled in reviewing the taxation to go in t ^ h e /• i nature o f the case , the length o f it and the subject m atter of it All said, in my opinion all this boils to this. The court cannot interfere with the Taxing Master's decision on taxation unless it is shown that either the decision was based on an erro of principle or the fee awarded was so manifestly excessive as t justify an inference that it was based on anjerror of principle. . In this reference Prof. Mwaikusa says the fees are extremely high, considering that the case did not go to full trial He also complained and said the scales under the Advocates Remuneration and Taxation of Costs rules a're not commands, ,1 1 but guides. The Taxing Master must justify the award on instructions fees and not merely parrot the scales. In the case of Ujagar Singh (Supra) it was held, as per Biron, J:- "An instruction fees is for work done in preparing i a case before trial, it is irrelevant w hether the trial itse lf would or would not be long and tedious . " In the First Am erican Bank of Kenya case (Supra) the court associated itself with the decision in Joreth Ltd Vs Kiqamo and Associates f2002) EA. 92 and said:- "In m y opinion, the full instruction fees to defend a suit is carried the m om ent a defence has been filed and the consequent progress o f the m a tte r is irrelevant to that item o f fees " Although the case of First American Blank of Kenya is merely of persuasive authority to this court, and although this court is also not bound by the decision in U ia g a r S in g h , JLam in ajirgsment with the two decision on the law as it should be. T herefore in this reference fees were earned .the m om ent the statement of defence was,filed. That a case did,not go to fu ll trial is irrelevant. Prof. Mwaikusa also referred the court to the A m o s Shavu case. That decision binds this court. But as rightly stated by Mr. Ngalo, that case although it deals with the general law on taxation, it is not of much assistance here because it dealt with l taxation in the Court of Appeal. That is why even the learned* Justice of Appeal who sat on that reference said the case of G e o rg e M b u a u s V s A .S . M a s lc in i ( 1 9 8 0 ) T L R 5 3 was not of assistance there. But it is relevant for this cjourt to consider the principles laid in that case. The court, quating P r e m c h a n d R a ic h a n d ( S u p r a ) laid four principles to consider:- r (i) that the costs be not allowed to rise to such level as i to confine access to the courts to khe w ealthy , { (ii) that the successful litigant ought to be fairly reim bursed for the costs he had had to incur. - (Hi) that the general level of rem uneration o f advocates m ust be such as to attract recruits to the profession. (iv) that there should be consistency iri the award m ad e" The plaintiffs in this case had claimed for US$ 30 million plus interest and costs. I agree with Mr. Ng&lo that this was not an ordinary person. And again if the defendants had not f i l ® a defence, a judgm ent would rightly be entered against them and they would by now be indebted to that am ount claimed. In my opinion, principle (i) and (ii) above is satisfied because of the level of the am ount claimed. That the respohdents here risked a staggering US $ 30 million decree against them if they made joke of the situation m ust have prepared well to file their defence, they therefore ought to be fairly reimbursed. Principle (iii) is also satisfied and I think this needs no explanation. Then there is schedule IX whicih would provide for consistency and therefore answer principle (iv). Now, would a claim of Tshs. 450 million be manifestly extravagant such as to make a misdirection of principle a i necessary inference? As I said above the am ount is surely not small by any standards. It is however just 50% of the scale under Schedule IX for claims over Tshs. 3 million. This was a Tshs. 30 billion plus claim. It is a huge claim. This court should not interfere on an award only because it is huge, but where • i wrpng principles were considered which would make the claim i look extravagant. The Taxing Master considered the scale and the amount claimed. He did not consider the com plexity of the matter. By their very nature, defamation cases are usually complex when litigated and I think, with respect, that this was Master considered these other principles, I do not think the award would have been different. What I am saying is that the non considering of all principles in taxing the bill on instruction to sue in this taxation did not occasion failure of justice because thfe Taxing Master was bound to come to the! same, conclusion, ir the circumstances of this matter. Having said that I am convinced that the am ount awarded by the Taxing Master is not manifestly extrayagant in the cirfcumstances of this case. ' I find this reference not meritorious and dismiss it with costs. JUDGE 'Y-. v. > > Delivered at;- Dar Es salaam this.22n r i»’. «..• ’ 4 * v d day of December, 20(15- T.B^Mmayo JUDGE 22/12/2005 For Applicant: Mponda For Respondent: M. Ngalo.