20131004 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO.146 OF 2004 THE SENATE OF THE UNIVERSITY OF DAR ES SALAAM ..... ■ •••••••••••••••••••••••••••• APPELLANT I. I I •••••••••••••••••••••••• VERSUS RIHARD KAJUNA MUZO ............................................................. RESPONDENT {Appeal from the Judgment and Decree of the High Court of Tanzania at Dar es Salaam) (Bubeshi, J.) dated the 18th day of October, 2001 In High Court Civil Case No. 459 of 1999 RULING 23rd August, 2013 & 11 th October, 2013 MALEWO, TAXING OFFICER This is a ruling for taxation of a Bill of Costs, in Civil Appeal No. 146 of 2004. The decree holder in this case is The Senate of the University of Dar es Salaam. Through its advocate Mr. Willfred Mathias Mzava, filed a Bill of Costs of a_ total sum of Shs. 25,291, 500. The judgment debtor had the service of Ms. Majamba, learned advocate. Mr. Mzava argued that items 3 to 19 are standard according to the Court of Appeal Rules, 2009 , - and he prayed the same be granted as presented. As for items, 21 and 22 Mr. Mzava submitted that they are court fees and the same should be granted as presented. As for item 23, i.e "taxi charges to and from · the 1 L- "" Court 28 trips @ 4000 amounting to 102,000/= should be granted as presented despite the fact that he had no receipts to substantiate the same but he submitted that he used his personal transport. In items 1 and 2 relating to instructions to appeal to the Court of Appeal and perusing the documents respectively, he is of the view that the same should be granted as presented considering the work involved, research, perusal and preparation of their appeal, its nature, importance and difficult. Mr. Mzava submitted further that as far as the appeal was concerned, he filed a list of authorities and that the Court of Appeal record was of 407 pages. He submitted further that the respondent claimed in the High Court 200,000,000/= plus interest. And it was a defamation case, that many authorities were cited and that a lot of homework was involved. The case was filed 2004 to 2008 when was finally determined. The said items should be granted as presented. He cited rule 9(2) and rule 11 of the Taxation of Costs rules appearing in the Third Schedule and also the cases of Premchand Raichand Ltd and Another vs. Quarry Services of East Africa Ltd and Others (1972) EA 162 and George Mbuguzi and Another vs. A. S. Maskini (1980) TLR 53. 2 , Ms. Majamba, learned advocate representing the respondent opposed the application. M/S Majamba argued that items 1 is excessive. That the amount awarded/subject matter is 30,000,000/=. The amount claimed is more than 66% of the actual amount awarded. The learned advocate was of the view that 5% of 30,000,000/= is very reasonable and not 20%. She was also of the view that item 2 should not have been presented as a separate item. That the same should have been part of item 1 regarding instruction fee. He cited laluma General supplies LTD Vs Stanbick Bank (T) Limited Civil Appeal No. 34 of 2010 Court of Appeal(unreported). As for item 3, M/s Majamba was of the view that 20,000/= was on high side and 10,000/= is very reasonable. Item 4, the learned advocate was of the view that 50,000 is much on high side. Single page 4,000/=? The learned advocate submitted further that doing a photocopy is not something profession. Ms Majamba argued that item 5, should not be granted as is part of item 23. As for item 6, very high and no receipt attached to substantiate the same . She stated further that photocopy is not more than 200. As for item 7, the learned advocate was of the view that the same is part of item 23. Items 8 and 9, was also of the view that the same are part of item 6 also item 10. On item 11, the 3 learned advocate argued that the appeal was not long and therefore the amount claimed is on high side. That this should be part of the instruction fee and if awarded, not more than 50,000/=. On item 12 which shows attending court for receiving judgement, Ms. Majamba argued that the same is on high side, reasonable amount is 10,000/=. Items 13 & 14 on very high side. Item 13, even 50,000/= is very high and item 14, the learned advocate was of the view that 1000/= per page is reasonable. As for item 15, the learned advocate was of the view that the same should have been part of the Bill of Costs and the same should be covered under item 13. In item 16, the learned advocate was of the view that the same was taken by item 23. That items 17 & 18 so much high. Less than 50,000/= is reasonable. Item 19, the learned advocate also was of the view that the same was too much, that he should claim like receiving judgment. Items 21 and 23 were not disputed. Item 23, highly disputed by the learned advocate and that no receipts attached and therefore the same should not stand. That personal car cannot replace a tax. Let us start with the guiding provision i.e rule 9(2) of the Taxation of Costs Rule Set out in the Third Schedule to the Tanzania Court of Appeal Rules, 2009. The rule reads thus:- 4 "9. Quantum of costs (1) ................................ (2) The fee 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 relevant circumstance." I will begin by granting items 21 and 22 as prayed because they have not been disputed by the respondent. This would amount to Tshs. 59,500/=. Item 3 is contested. The scale provides for a maximum of Shs. 15,000/=. Tshs. 5,000/= is therefore taxed off in item 3 leaving shs. 15,000/=. Item 4, this is also contested. I am of the view that the amount of Tshs 5,000/= is reasonable. I tax off shs 45,000/= on item 4 and tax the same at shs 5,000/= only. That item 5 should not be granted as presented as is part of item 23. I do not agree with the learned advocate for the respondent that item 5 is part of item 23. Rule 9(3) of the Taxation and Costs rule which appear as 5 the Third Schedule of the Tanzania Court of Appeal Rules, 2009 provides thus:- "Quantum of costs 1 . ........................................... . 2■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ ■ I ■ ■ ■ ■ ■ I 3. The sum allowed under subparagraph (2) shall include all work necessarily and properly done in connection with the appeal and not otherwise changeable including attendances, correspondence, perusal and consulting authorities. ,, 4 •••••••••••••••••••.........................•..........••.••••••• To my understanding the said item 5 together the following items 2, 5, 7, 8, 10 is to my mind "work necessarily and in connection with the appeal or defined in Rule 9(3)" and are covered under instruction fee. These items are hereby taxed off. Item 11, the learned advocate was of the view that this is part of item 1 and even if awarded should not exceed 50,000/=. The amount shown in item 11 is unreasonable, the same reduced to Shs. 60,000/=. 6 In item 23, Tshs. 102,000/= were claimed as tax charges to and from court 28 @ 4000/=. Ms Majamba, learned advocate disputed the same on the ground that no receipts were attached which is true. I hereby tax off the same for want of receipts. Item 13, The appellant charged Shs. 600,000/= for drawing the bill of costs, item 14, Shs. 150,000/= for making 4 copies thereof, Item 15, Shs 200,000/= for preparing certificate as to folios, Item 16, Shs. 20,000/= for filing Bill of Costs, Item 17, shs 200,000/= for attending court for taxation, Item 18, Shs. 200,000/= for attending court for taxation and Item 19, Shs. 200,000/= for attending court for receiving ruling of bill of costs. The scale provides for each of the mentioned items. Shs. 1,480,000/= is therefore taxed off in items 13, 14, 15, 16, 17,18 and 19 respectively leaving items 13 with shs.20,000/=, 14 with shs. 10,000/= 15, with shs. 20,000/= 16 with shs. 10,000/= 17 with shs. 10,000/=, 18 with shs. 10,000/= and 19 with shs. 10,000/=. Finally, the applicant charged Shs. 20,000,000/= as instructions to appeal to the Court of Appeal as per item 1 and Shs. 1,000,000/= for perusing the documents as per item 2. Mr. Mzava, learned advocate for the applicant submitted that considering the work done involved, research, perusal, its nature, importance and difficult, list of 7 authorities filed and the record of appeal of 407 pages and that the respondent claimed in the High Court 200,000,000/= plus interest and that it was a defamation case, the said items 1 and 2 should he granted as presented. Ms. Majamba, learned advocate representing the respondent opposed the same. Ms. Majamba argued that item 1 is very excessive. That the amount awarded is 30,000,000/= and therefore the amount claimed is more than 66% of the actual amount awarded. The learned advocate was of the view that 5% of 30,000,000/= is very reasonable and not 20%. She was also of the view that item 2 should not have been presented as a separate item. The same should have been part of item 1. As far as item 2 is concerned, I agree with Ms. Majamba. Rule 9(3) of the Taxation of costs rule supra provides. That being the position, item 2 is hereby taxed off as the respondent cannot be charge twice for the same item. As for item (1) being a claim of Tshs. 200,000,000/=. As I have said the question of costs has been provided for in para 9(1), (2), (3) and (4) of the Court of Appeal Rules, 2009 which provides thus:- 1) The fee to be allowed for instructions to make, support or oppose any application shall be such sum as the taxing officer shall consider reasonable but shall not be less than Shs.100/= 8 2) The fee 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, the fund or person to bear the costs and all other relevant circumstances. 3) The sum allowed under sub-paragraph (2) shall include all work necessarily and properly done in connection with the appeal and not otherwise changeable including attendances, correspondence, perusals and consulting authorities. 4) Other costs shall, subject to the provisions of paragraphs 10, 11 and 12, be awarded in accordance with the scale set out below or, in respect of any matter for which no provisions is made in those scales, in accordance with the scale applicable in the High Court. Mr. Mzava, learned advocate was of the view that the amount claimed in the High Court that of shs. 300,000,000/= should also be considered in taxing item 1. It is my thinking that a Bill of Costs filed in the Court of Appeal deals with issues in the Court of Appeal and not those of the High Court as Mr. Mzava, learned advocate argued. This is because a 9 ;. Bill of Costs in the Court of Appeal is not a bar to filing Bill of Costs in the High Court. Also I am of the view that unless there was proof that the said instruction fee was paid for in the High Court and again in the Court of . Appeal then the same could be granted. This has not been done. The quantum of costs surely remains in the discretion of the Taxation officer but has to be reasonable. I thus grant Tshs. 5,000,000/= only which I believe is reasonable the rest is taxed off. The total amount granted thus stands at Tshs. 5,229,500/=. DATED at DAR ES SALAAM this 4th day of October, 2013 M.A. MALEWO DEPUTY REGISTRAR TAXING OFEICER I certify that this is inal. rr,•· ~_'! ! !_:~ ·~ D ~: ' •L 7!. COUR .\ U1' ti. .~/J~; ,.J!/'t, / •, 1· wt ..'('/ ~ "-,.., .·. _,,/ 9 ~ -..:,,.";_;-.~--:- 10