20000308 TZCA Dar es Salaam 1

IN THE com.~ OF APPEAL OF TANZANIA AT DAR ES SALAAM .----·--··---=-- CIVIL APPEAL NO. 44 OF 1995 BET,J.:i:EN TANGANYIKA MOTORS LIMITED••••••••••"•••••• APPELLANT AND TRAN.SQONTIN"JI:N'l'AL FORWARDER LII·UTID •••••••• RE,SPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Sala.am) ( ~.£arl0~ ) . dated the 26th day of July, 1995 in ,, RULING This Bill of Costs Consists of ( 23) items. 'fi1e Bill has been filed by Patel & Co., Advocates for the respondent/decree holders. The ·total amount claimed is shs.10,041,250/• out of whic_h shs.10,000,000/= under item (1) is with respect to instruction fee. 1 '' i' !' ! r Mr. Kinguji, the learned Advocate from Patel & Co. Advocates j I I I i appeared for the reBpondants. He submitted that the a.'Ilount of 1· I I shs.10,000,000/= claim~d as instruction fee is a reasonable amount· ·, i· I' i consider-ingthe volume of work done in defending the appeal. He I!. argued that the appeal involved co~plex matters and took two days to j argue, thus considering the time and energy spent in the preparation Ii of both the preliminary objection and the appeal, the amount claimed is reasonable and therefore he prayed that the claim under that item be f, ,,' ,,l taxed as presented. I I (; 'I As to other items, ~ir. Kinguji ,dropped items (2) and (20) which I;, i •.. /2 - 2 - concern perusal of record of appeal and addition of half of the Costs of all·items except item (1) resp8ctively. He submitted that items 3 - 19 are ~ccording to scales while items 21 - 23 are disbursements which have receipts and therefore prayed that they be taxed as presented. The Appellant/judgment debtor was rerresented by Mr. Majithia, lei;l.l'ned Advocate. In his submission he.disputed the amount of shs. 10 1 000,000/= claimed under ·item (1)·as being unreasonable given the nature of the appeal defended by the learned advocate for the decree holder. He submitted that the reasonable amount which the learned advocate for the respondent is entitled as instruction fee is shs. 1,000,000/= only. With regard to other items, Mr. Majithia did-not dispute them but rather left it to the Court to tax them as would be found just and reasonable. I :i Now, since item (1), concerns the instruction fee which is a I !'I ., remunaration· of an ·advocate, the·. question arises which pertains to the . jurisdiction of the Trucing Officer of the Court of Appeal. Although that point was not raised during the hearing of the taxation, being a question of law, it needs to be considered. This is ~pecially so because the perusal of the record of appeal shows that Patel & Co. through Mr. Kinguji, Learned Advocate represented the respondent both in the High Court and Court of Appeal. R. 118 (3) of the Tanzania Court of Appeal Rule::., 1979 provides as follows: 11 (3) The remunaration of an Advocate by his r: client in respect of any application or I appeal shall be subject to taxation in the High Court and shall be governed by the rules and scales applicable to proceedings iI in that Court." I -I ;' So, although Rule 118 (1) enpowers the Taxing Officer of the Court of 't 'I Appeal to tax the Costs as between party and party or Costs arising out ! of any application or appeal to the Court; R.118(3) ;~eludes the jurisdictions of taxing the remunaration of an advocate and vests that officer power upon the taxinglof the High Court. Sub-rule (1) of that rule provides: ••. /3 1/ 3 11 (1) The Registr~ shall be a trucing officer with power to tax the Coots as bGtween party and party of or arising out of any application or appeal to the Court." Considering the ambiguity in that Sub-rule, the Court of Appeal, (Kisanga,. J.A.) in the Case of Azi'? Suleiman Praji __y. Dr._Aman Waji£ ~..<?EE~, Civil Ref.::rence No. 14 of 1995 (unreported) had this to say: • 1 •• • th~ Sub-rule gives rise to ambiguity. Because one way of Construing it is that remunar,J.tion of an advocate by his client in respect of applic~tions· L or appeals to the Court of Appeal are to be truced in I the High Court •••• Yet it is not possible to see •,:" how the Registrar or Deputy Registrarr of the Court of Appeal can find his way into the High Court and conduct the taxation there •••• I think the correct procedure is to present seperately two Bills of C6st 1 one in respect of Costs in the High Court and the other in respect of those arising in the Court of Appeal c:nd the two are to be truced sepcrately by the taxing officers of the respective Courts~••:, The Court further elaborated in that authority that the remunaration of an advocate· can only be truced by the talCing officer of the Court of Appeal where the advocate is retained for the 2,¥'"~~ time in the Court of Appeal. The relcv0.!lt part of that ruling provides as hereunder: II it means that such remunaration is to be truced in the High Court in which the advocc1.te concerned was retained for the matter giving rise to the relevant application or appeal. Where·thc advocate concerned was not so retained but wa.s retained only for the first time to handle the applicntion or appeal then the remunaration is to be taxed by . _ t.'.l.Xing officer of the: Court of App0al. ;; The above b&ing the position, since Patel & Co., Advocates through Mr. Kinguji, learnDd Advocate represented the respond0nts both in the High Court and the Court of Appeal, then th~ procedure to be adopted is as prescribed in the case cf Azim v •• Kabour~ cited above. Two set:l ••• /4 ..,, 4 of bills of Costs should be filed-one in the High Court and another in the Court of Appeal so that the remunaration of the .::concerned advocate is truced in the High Court as provided by the law. In the end therefore the bill of Costs is dismissed for want of jurisdiction. It is so ordered. DATED at DAR ES SAU.AM this 8th day of Miil'ch; 2000. -·--- TAXING OFFICER -·~· . ---