20090415 TZCA Dar es Salaam 1

IN THE COURT OFAPPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 66 OF 2002 BETWEEN THE PERMANENT SECRETARY (ESTABLISHMENTS)] THE ATTORNEY GENERAL ]...... APPELLANTS VERSUS HILAL HAMED RASHID & 4 OTHERS ............................ . RESPONDENTS RULING MARUMA, DR-CA/TAXING OFFICER: Mr. Twaibu the learned advocate representing appellants has lodged 16 itemized bill of costs at a grand total of Tshs. 45,090,500/- out of which item 2-16 related to court services and item no.1 concerns the instruction fees at total of Tshs. 451 0001 000/-. The dispute in this refence is directed against the item no.1 the instruction fees. Mr. Twaibu for the applicants submitted that the amount charged for the instruction fees based upon the principles of taxation which were already settled. Supporting this 13 I I Mr. Twaibu cited the case of Prime Chand Ray Chand Versus Qurry Service Case No. 3 of 1972 [EAC] page 162, where the Court of Appeal held that " The taxation of costs is not a mathematical based exercise. It is entire matter of opinion based experience. Cited other principles of taxation related to the case handled in the Court of Appeal it his view that item No. 1 should be taxed as charged as the appeal was actual the consolidation of two appeals of compexity nature involved the issue of great Public and Legal importance which required a lot of industries and researches on complexing matters. The record of appeal could show the decree holders whereby the 1 one was holding position No.2 in the Police force immediate below the Inspector General of the Police, the 2nd was a full Commissioner of the Police and the Director of Criminal Investigation (DCI) and the other three decree holders were Senior Commissioners of the Police. Their claim was based on the decision of the President of the United Republic of Tanzania who retired them in the Public Interest. Therefore the matter argued in the appeal required a lot of professional inputs as the records of appeal shows the list of authorities involved. Replying this Miss Sahel the learned advocate for the respondent contended that the amount of Tshs. 45,000,000/- charged for instruction fees was too excessive and unreasonable. Miss Sahel submitted that as her fellow learned brother pointed out rule 9(2) of the first schedule of the Court of Appeal Rules,1979, as the guiding principle for the taxation. It is her submission that the issue disputed in the Appeal was whether the decree holders were lawful retired. Therefore there was no much difficulties in arguing that ground, thus the amount of Tshs. 45,000,000/- was too excessive and not reasonable and it would caused injustice if granted. Miss Sahel proposed the amount of Tshs. 10,000,000/- to be fair regarding the industries and researches which have been done, cited paragraph 11(1) of the 3rd schedule of Court of Appeal Rules that 'on taxation the taxing officer shall allow such costs charged and disbursement as shall appear to him to have been reasonably incurred for the attainment of justice but no costs shall 3 V be allowed which appear to the taxing officer to have been incurred through overpayment, extravagance, overcaution negligence or mistake or by payment charges or expenses to witnesses or other persons or by other unusal expenses. As a general rule the allowance for instruction fees is a matter peculiarly in the taxing officer's discretion as provided under para 9(2) of the 3rd schedule of Court of Appel Rules that. "The fees to be allowed for instruction to appeal or to oppose an appeal shall be such sum as the taxing officer shall consider reasonable having regard to the amount involved in the appeal. Its nature importance and difficulty, the interest of the parties, the other costs to be allowed the general conduct of the proceedings, fund or person to bear the costs and all other relevant circumstances. Paragraph 9(1) provides that the fees to be allowes for instruction, to make support or oppose any application shall be such sum as the taxing officer shall consider reasonable but shall not be less than Tshs. 100/-. ri Taking into account the above provisions and considered the submissions of each party herein. It is true that the amount to be charged as instruction fees should be reasonable but such amount apart from being reasonable it should also be justified by the nature of the case its complexity time taken up by the arguments and amount of research involved. In the instant reference it can not be disputed that there wr€two appeals consolidated and respondents obviously incurred cost when they instructed their advocate and some legal research which have been done considering the presence of legislations, Judgment/Rulings and books as annextures to the appels. ( Respondent's list of Authorities). After giving the matter careful consideration. It is my view that a sum of Tshs.30,000,000/- meets the justice in this reference. I therefore order accordingly the item No. 1 instruction to defend an appeal to be taxed at a total of Tshs. 30,000,0001- and other item 2-16 to be taxed as presented at a total of Tshs. 90,500/- The grand total of bill of costs shall be Tshs. 30,090,500/-. U DATED at DAR ES SALAAM this 15th day of April, 2009. !&I1iSit1 TAXING OFFICER