Switi Mwalwange vs Asulwisye Manase (PC Civil Appeal No. 82 of 1988) [1998] TZHC 2305 (3 July 1998)

IN = 15 HIGH COURT OF TNZANIA AT MBEYA C),I1L APPEAL NO.182 OF 1988. (b th decision of the Dirict Court of District at Tukuyu in Civil Appeal No, 58 of 1983 Before: A.M. Nbaruku Senior Diagistrate) SITI HWALWANGE . .. .. APPELIJANT 0 Versus ASULWISYEMANAS ....,,,. RESPONDENT. RULING -- - - 0 •• - This is an objection to taxation by way of Reference,' The. Decree-Holder, AsulwisyeManase, subt-nitted a Bill of Costs of a total- claim of -ShpO7,8k3.00 before the Mbeya High Court Taxing Masterii The case originated in the Urban Primary ourt'of Tukuyu and came all the way to this Court through appeals. Out of the amount claimed, there was a claim of shs4600,000/= as damagi.s 'forbanana-plants and coffee trees 0 The taxing master correetlyheld that this was not a matter for him to decide on account of that it constituted a •.different case which ought to be..roved in a .ourt of law, and -thaf -.twas not part of expenses incurred in prosQ:uticn of this case. The 'taxing --master then taxed off the shs.600,0001= from the p,1tum leaving 'a balane of hs.107,843/= and, for reasons he gave, taxed t bill of costs at th.t figure. - The jud,gment-debtor, 'Switi Nwalwang-T, is resisting the taxation and '- - filed anffidavit in su'ort of hi-s grounds forthe ohjetion. His grounds are twofold: firstly, that the claims under the items taxed as presentedere -unduly on the high side, and, secondly, that 'the claims were wholly unsupported by receipts, tickets or other documents. 0 The taxing master conceded that the claims were wholly unsubstantiated. However, in taxing the claims aspresented he said: -

• 0000000.000/ 2 a - — — e- • *et

How.ever, there is no doubt that he(decreeholder) used some money in travelling to and from court, accommodation and for food 0 Also he used money in filing this suit4 All tiese cannot he questioned. There. was,. with respect, amisdirction here which constituted an error in principle. What the taxing master. said could not have stood as ground for taxing the claims as es'ented What was at issue were the amounts being claimed. That was...rhat be was supposed to have adjudicated upon. He was expected to have assessed the claims. But he did rldthing of the sort. He did not give any reason for taxing the clam's as presented. As it is well Imown,. on. the qu'estion of quañtm, decision of the taxing master is generally speaking final,. It must be a very exceptional case in which this court will even listen to ' application to review his decision, The • rationale for this is that in questions of quantum the judge is not nearly as • competent as the taxing master to say what is the proper amount 't be allowed. What was involved here was a question of quantum. But a judge may interfere, that notwithstanding, where, as here, the taxing master erred in principle or where; again as here, the taxing master., aid not exercise his discretioh judiciaU;" As no reasons for taxing the c1aims as prescted were given, the taxing maste will not be deemed to have exercised his discretion in a iudicial manner. His ruling, therefore, is reviewable,, • . . ... As averred by the judgment.debtor in his affidavit, the claims under. the items taxed as presented were not only unsubstantiated and lacked in details, but were unduly on the high side. First, claims under items 2 to 8 were for atending primary coutfo±mentioi for seven days. Shs.1.,0001= per day (total 7,000/-) was being claimed But it was common groLind that the decree-holder resided hardly two miles from the court building and that the c]aim was for the' years 1'98 ~ 'and 1983 when the value of the shilling 's vey thuOh higher than xiowt, That claim of shs,7,000/_ was, therefore, excessive an the obtaining circumstances. I tax off shs.,OOO/=. Second, there were the caims under •tOOO,000,/ 3

p 3 • item 9 to 15 which were for attending primary court with three witnesses for hearing for eight days. Shs.4,000/=.per day (total shs.32,000/=) was being cla:imed. That claim was clearly unrealistic. It was, as claimed by.the judgment-debtor, an invention. It could not have been the case that the D/H attended the primary court with three witnesses for hearing for eight days. It is inconceivablethat they could have spent same amounts every day. Even then, the amount of shs.32,0001= claimed was unduly excessive given that the claimwas for the year 1983 and that the D/H resided a short distance from the court building0 I tax off shs.2 1+000/=. Third, there were claims of shs,7,0 00/= per day for attending Pirngwe district court fnr five days (total shs.35, 000/=). But both Pungwe district court and Thkuyu Urban primary court were at Thkuyu which was a short distance from where the D/H resided and the claims were for the years 1983 and 1984. So the claim of shs.35,000/= was in those circumstances unduly excessive. I tax off shs.30, 000 1. In the event, I allow the application, tax off shs.59,000I= from the amount of shs.10?,843/= granted by the taxing master, and hereby allow an amount of shs 1 +8,8+3/=. In the circumstances of this case, the judgment-debtor will have the costs of the Reference to the judge.

• . AT MBEYA, .3 July 1998. For Applicant/J.D. Present.

• For Respondent/D.H.- Present. / • • B.P.MOSHI JUDGE,