Saspeter Ndalahwa vs Nathaniel Chamulomo and Others (Civil Appeal No. 49 of 1998) [2000] TZHC 192 (28 July 2000)

IN THE HIGH COUR!.' OF TAN?,ANIP. AT DAR ES SALAAM CIVIL APPEAL NO•••••••••••• 49 of 1998 SASPET:ER NDALAHWA •••••••• APPLICANT VEiV3US NATHANIEL Cl!AMUIOMO & 6 ornr;n.s. • • RESroNDmTS RULING ~~-~ MSHOTE - SDR - HC: The present b.ill of costs arises from an appe.:il in respect of ,t;:,:· .. :F':an application for temporary injunction pending hearing and determination of the main suit. The Appellant having succeded in the appeal has now filed a bill of costs in the total sum of Tshs. 1, 234,·ooo/=. The bill of costs is in four rna'in parts. The first part of the bill of costs covr instruction to file appeal and. the successful party in the appeal has asked for Ts. 1,000,000/= (item l). The sec.end part of the bill of costs cover perusing the ecoreparation of Memorandum of appeal and making three copies thereof. The. part of the bill of costs oovr appearances. The fourth part of the bill of costs cover disbursements. The parties are represented by Advocetes. Mr .. Kalolo appeElred for the decree holder and Mr. Galikano appeared for the Judgement debtor. Adv-ocates for the parties agTeed to proceed by way of written submissions which they-have duly filed. I am indebted to the Advocates for their research and btilliant submissions. In respect of item 1 of the bill of costs which c-otntr instructions to file appeal Advocate for the decree holder submitted that instruction fees of Tshs. 1,000,000 ;= is based on the fact that the appeal involved 7 respondents and that the subject matter is developed Land whose value was not docla.red but was within the monetary Jurisdiction of the Court below. He said that instruction fees of Tshs. 1 1 000 1 000/= if dcvided to the seven reepondents brings the nominal amount of Tshs,. 150,000/= per head hence bein,z a reasonable fee by any standard. Th Counsel submitted, further, that tho appeal had several interlocutory applications including heated arguments and counter arguments and that it required research on the Law of injunctions. That it also involved ~n application for chanse of venue and was contentions • •. ·2/·

With regard to itemE for ~ppearances (items 5 to 15) the oounsel submitted that thercoo rd was bulky and the amount spent in Court every day was many man-hours and that so for twenty two (22) appearances have been made thereby justifying the claim for such I instruction feeso The counsel finally submitted that the taxi charges represent the standard taxi cab charges from one part 6f the City to another and iP- the circumstances he requested the court to use its discretion under Rule 11 of the rules. To forfity his submission the counsel cited the ca1,es of CB., Ndege V .. Edward O. Avila & another 1988 TI.R 91 and Ujaga. Sigh V MBUGU 1988 HCD n 173. Counsel for the Judgement debtor has vehemently constested the bill of co1Sts 0 In the fir1St place the counsel argues that the main suit is yet to be determined an<l ~iven the fact thr;:t the aw,irded co.st.s were in respect of a temporary injunction taxation. of costs ouqht to be stayed until after the main suit hes been heard ahd finally determined. Without prejudice to this submission. ·counsel for the Judgement debtor. contested items 1, 2 and 3 of the bill of costs which were instruction to file ~ppeal, perusing of record and preparation · of appeal •. His arGument by and large is that the appellant filed the appeBl himself and th:::it therefore there was no instructions to file th.e appeal perusal of the record and preparation of the memorandum of. appeal on the part of counsel for the appellant. ~h';) c,.nl::-.sel argued th;,t from tl:.e re::,ord it was evident that the certificate of urgency and the memorandum of appeal were drawn and filed by the appellant himself and that counsel for the appellant only appeared to argue the appeal. Regarding items 3 and 4 the Counsel argued that item3 was_ on the high side, ·while item.Ji-was not justified. He so.id that the normal charge for making one copy of the memorandum of appez.l and two duplicate thereof was Tshs. 500/= enly, Regarding: items 6 1 7,8910 1 and 11 counsel for the Judgement debtor has submitted thnt the amounts charged for appearances were in violation of the provisions of the Advocates Remuner3tion and Taxation of co.sts Rule 1991 because the Rul0s Schedule XII provide that for attending cases in court Tshs. 750/= only is to be charged for 30 minutes .. In respect of items 12 1 13,14 and 15 of the bill of costs the counsel submitted that the figures indicated therein have been put 011 the high side and that they ought to be taxed in

" • I ccordance with the 2rgumant dvance in respect of items No. 4 and it0ms No. 6, 7i 8, 9, 10 and 11 of the bill of cost. He further submitted tht items 14 and 15 of the bill of coots should be taxed off for thty nnticipnte costs to be i'.ncurred after filing the bill of costs. Rcg;:;rding disbursement,s tho cour1sel submitted thot they were without proof save for foes paid in court and that this W8S in contr1.1vention of Rule 55(1) which makes it mandotory for the decree holder to produce receipts for the expenses incurred so thi1t the Court may satisfy 'itself thnt the same were prop,:rly cmd legr;aly incurred. To. fortfy his submission counsel citGd the c::i.se NATIONAL BANK OF COMMERNC:F: VS. IDD MSIYtAHO Civil Appeal No. 63 of 19970 In his rejoinder Counsel for the decree holder submitted tht tha argument that the suit is still pending does not make s0nse because as far :=.is thG temporary injunction is concerned the same has been finally determined in this r1ppe-"1 and since the costs of this appec1.l w,re not ordered to be costs in tho suit, it is proper that the bill costs be taxed. Regi:lrding the argument thnt counsel for the Jud::semcnt debtor is not entitled to costs for in,struct:i.on to file the Dppeol perusing and prer,aration of appc8l ( i terns l, 2 and 3) because the appelltmt · . filed the r;ppenl himGdf, counsel for the decree holder has submitted that instruction to fill} appeal includes research, prosocutiri..g and ,:.,,,. 1:.tte:,ndj.111;,; to it gcner:-::lly anct it is not Limited to drafting of the MemorP.:ndurn of Appe,lo Ho s::dd thnt it is why no charges have been made for tho drf.lwinc; or ongrossing of tho snme which hns a specific provision under schedulo VIII of GN 515 of 1991. I will begin with tho nr1-::ument of counsel of tho Judgment debtor that the taxtion of the pr8scnt bill of costs ought to be stayed until. the ma:i.n suit has b,:::en he,:1rd F.ln<l finally debrmined. It seems to me thnt there is no merit in this argument because as rightly submitted by counsel for the decreo holder th0 feet th0t the main suit is still pending does not op0r,:itc as ttay of t8:zntion becnuse in so f.:1r o.s the temporcry injunctti.on is conci.,rncd tho snmc h,:.s been finally and conclusively determined in this npp21. To o,,m it all the costs of thlts app-::nl were not ordcrc;d to be costs· in th0 suit. Under this circums.tnces the obj0ction is heroby overruled. the

... 4 ..... Now as I said before the first part of the bill of Costs were instructions· to file a;Jpeal~ 0o'UIISel for the Judgement debtor argues that it should be taxed off because the appellant filed the appeal himself. While it is true, from the record, that the certificate of urgency c:md the memorandum of appeal were drawn and filed by the appellant himsclft I respectifully agree with counsel for the decree hold.er that instruction includes, resenrch 1 prosecuting and attending to the a1nieal g1:nerally and it is not limited to afting of memorc1ndwn of appeal. Now turning to the bill of costs under part one (it-ems 1, 2 and 3) the 'decree holder has asked for Ts,. l,,000/= as instruction fees, < Tshs. 3 1 000/= for perusal of record,. Tshs. 5,000/= for preparing " of memorandum of appeal and ;I1shs. 3,000/= for making three copies thereof. It is to be noted that in taxing instruction costs the·taxing officer, under the Rules has to have reeard to the care and Labour required, the number and length of the papers to be perused, the nature 01~ _importance of the matter the amount a value of the subject matter involved, the interests of the parties, the complexity of the matter and all other circ.umstances oig the Ci'\se as may -be reasonable~ Having regard to all those factors, I am of the view that the sum of Tshs. 1 7 000 1 000/= claimed in item 1 of the bill of costs is on the high side and it is hereby reduced and ;:issessed at Tshs·. 500,000/= ( Five hundred thousand only)• For perusing· it is notdd that under schedule VIII of the ..... ' rules aparty is entitled to Tshs. 50.00 per folio (100 words) and for preparation Tshs. 250000 and for mr:iking copies thereof Ths. 40.00o On the basis of the Rules, I am satisfied that the sums of money cisfoed in ittims 2, 3 and L of the bill of costs are reasonable and according to scale. These items are therefore assessed and taxed as presented. I respect of appee.rnncc it is to be noted thd under Schedule VIII of the Rul1=s aparty is entitled to Tshso 750.00 per . 15 minutes or party thereof. Looking at the Rules I 1 :,am satisfied that the sum of money claimed for appc.?ranccs r.1re reasonabl.4 and according to scale. There item arc hereby taxed as presented, Finally I will deal with disbursement. Rule 55(1) of the Advocates Remuner.?.tion and Taxation of CoGts Rules 1991 (GN 515) provides:- 0 55 (1) P.eceipts or vouchers f?r all disbursements charged in a bill of costs together with all documents or draft or copies thereof shall be produced on·taxation"•

• 5 - It is statutory clear thDt in order for n party to be disbursed he must produce ri:;ccipts or vouchurs., The roquir0mont is m,':l.nd,1tory, The d2croe hold0r h,ois only produced :::-ecdpts for th:;; exp,.:mscs he incurred o.s filing fees.· 'I'he decree hold0r h::,s not produced recuipts rclotini tD taxi expenses. Howev,;r rulo 11 of the Tiulcs provides:- 7i_ 11 Noh-1ithstanding m-iythinr; contoined in these rul0s, on every tDx,:::tion, wh2thi.J1' in respect of non-contentions matter or contentions proceedings the 'I''.lxing Officer 3:.. J.l.E.~~.l such f·ces costs, ch::rges and expenses OS shell ap::,er;r ·-··-··"'·· .. -·. -· ........ L - -:. ........ -~ ....... ~ ..... . J ..... ..... - ......... -._ ... ·--· ........ ,,. ....... ,. ... -----=-- - ....... ~ .......... _ . Lookinp; nt the iL,ms'. for disbursement, I am scitisfiod th;:,t all such fees, costs ch·::,rges and cJ-tpenses were noce.ssnry ,:md proper. In the promiso.s th(:sc i t2ms 0re hor2by c:issessod and taxed ,3.s prcs..:mtud. In the fincl a·n,dysis tho present bill of costs is t.:ixed a.t a tot:11 of Tshs,, 734,000/=. It is accordingly so oider:,d. 28/7/2000 Coram: Nshote - DP./HC In person - D/Holder Mr. Galikano - J/Dcbtor Court: Ruling delivered thi.s 28/7/2000 F. S. HBFIOTE SDR/HC 28/7/2CXJO i'llI'o Gc:ilikano: We intend to make a reference ar;:::inst the decision -(-----~•...,__,...___,... of the toxing m2stur in the premises we pr",y for a copy of Ruling and docree. e,o . 0 Galikano -.?- . -· ·z:. eeo f(:.{\ ~() , .. •' ·-. ~