19881111 TZHC Dar es Salaam

IN THE filGII COURT OF Tli.NZllNIA 1\.T DAR ES SAf.JV,M CIVIL CASE NO.5 OF 1986 TAHZi1.JHA INVESTMENT BANK. o • o o • • ., • o • • o o • • .. o • • ,. .. • • • PLAINTIFF versus NL.TIONL\L PRINTING COMPANY,. .... •. o •• • •• u •. oo ......... DEFENDANT RULING mm, PRM(EKTENDED JUilISDICTION). Tb.o suit clnirn is for shs.21,221, 742/- anQ it has been filed wider Order 35 (Suramary Procedure) of the Civil Procedure Codo. Mr1 1furando for the plaintiff held legal briefs on behalf' of the plaintiff. The suit was filed soraetimo in January, 1936' and on 13/3/06 the matter was first ln-ought before a Juel.go in chrunbcrs •£.or hearing of a cha11ber application for leave to defend the suit. From tho record Mr. IG.jugo and Company 1.dvocates appeared. for the defendant but on tha.t day the suit was adjourned as Mr.. :lf1:'l..I'ando was engaeed in aaother court. Mr, Marando was directed by tho Learned Judge Mapigano to file a counter- affidavit against tho one filed by Mr. Kijugo lJy lfJ/4/QD and tho suit to be oentionod on 19/4/DD.. On that dcliY the court ordered. that tho clwm,oor application would be heard on 24/6/fJG but when that day cclrae Mr. Kijugo · infornod the court that his clients were negotiating for a settlement and he therefore applied for an adjourrunent. Tl:.e matter was filoo. for mention.on 26/7/86 and on that~ the parties by consent agTeed to have the case fixed for hearil:lff on l6/9/D6. A similar situation happe.."1ed on 16/9/06 when it was on rrrutu.nl agrocraent that the case should be ln-ought up again on 4/11/86 with a view of enabling the parties to settle the r:iatter out of court. Nothing materialised as the record spea.lc3 by its elf, until 12/2/87 at 10.00 a.r.1. before honourable Mapieano, Ju.d.i:;o when the np1)li-:- cation :tor-.:l:~to defend was dismissed for none appearance of the parties, and especially the applicant-:- defend.ant who ought to prosete his applioat.ion. As service on the defendant :. was duly executoo., or knowledge of_ hearing of the chamber applicn.ti.on by tho defend.ant's advocate was wiquestio11B,ble, a certificate to that ,,effcc~:was . signed by tho Deputy Registrar on 24/6/fJ'J end on the strength of this and the foregone the Learned Judea Ki.ongoii gave judgraont in favour of the plaintiff' for shs.21, 221, 742/-:- plus interest and costs. This was on 26/6/GfJ. T1..1e matter was their put d.01m taxation. ..._J Mr. Marando, as usu.c-u, strenously argued in support of this bill of costs that, aJ. though the t1atter did not go for full trial, it cc.,1111ot be denied that raa.ttors in connection with Law of banking arc not u.nusucl relatively to ordinary civil litigations. That in preparing to file such n. suit,, the plaintiff(s ncl.vocate has to labou.r hiosolf to collect all the necessary det·niled inf orrnations, has to collect all the documents in - 2 - co:nnextmnnwitJ.1 the suit, to visit and receive information or stater:ionts f ,m the intended witnesses, to stuey tJ.1e relevant statutory provisions and case La.w relating to the matter in question. He further sulmi tted that as the facts in issue were of tecbJtlcal analysis and required specicl. research by an advocate other than tho 'USU.01 and. con.";lon causes of action. According to Mr. Marando, he was forced to file counter affidavit as his learned friend had fi!,lAd,ml n.ffidavit in support of his chamber application for leave to defend the suit. FinallJ'" the counsel statoc.l that since it is the noroaJ. prootice of this court to mmrd figure of between 5 and 10 of the principal sum claimed in the suit, it was in the oponion of the learned advocate that a figure of 5% of the total amount claimed would be just and reasonable in tho circumstances of the case. Accordingly he preys this court to+~~ iteo rrunber 1 on-his bill of costs, it beine in respect of instruction foe tJsue, at shs.1;061,037/~• Mr. Ki~o, Learned counsel for the judgcr.1ent debtor is in agreer:ient with Mr. Marando on all the itoos on the list except the first item. It is his contention that the plaint filed l)y his learned coJlliague h.a.s six folios and the suit was filed under sur.unary suit - a oatter,intondecl to be the shortest under tJ.10 civil law as it is intend.eel to out short · title tha. t would hav~pi~t of . · to hem- and disposEi, the litigation as well as to r:iininiso costs. The matter, however did not proceed to :f'ull hearing and in this co:nnti'XtlllQi, accordil:18' to Mr. IG.jugo, the stateraent by Mro Marando that the suit was cooplicated should not at all be entertained. fuVing heard both the counsels, ancl also having stucliod tb.e proceedings c-7t,. case quite closely, I tend to aeree with Mr. IG.jugo that the fee for instruction olaincd by Mr. Marando at shsol 1 o61,0G7/-:- is manifestly ~-;;~sivoo .Accordingly I tax the bill on i tora l!on.t shs.500,000/ •. The - ~ 7 of the iter:is a.re as anended on the bill sheet, i.e. itens ll'Ub:bers 2,3 and 4. Let the bill be adjusted accordingly by the registry officer in accordance ;ri th this ruline• hling delivered .t Da.r es Salaam 1/11/88 Mro Nfarando for the D/Iloldcr Mr. IG.jueo for t!.lo. J/Dobtor