HAJI ATHUMANI ISSA v RWEITAMA MUTATU 1992 TLR 372 (HC)

 HAJI ATHUMANI ISSA v RWEITAMA MUTATU 1992 TLR 372 (HC)

Court High Court of Tanzania - Mwanza

Judge Masanche J

10 December, 1992

Flynote

Taxation of Costs - Bill of costs - Omnibus award - Whether supportable. E

-Headnote

The taxing master entertained an application for the Bill of Costs in the absence of the

applicants and awarded what appears to be an omnibus figure of shs. 100,450/=. On

appeal against such an award. F

Held: (i) Although judges will in most cases not interfere with questions of quantum

the court could interfere if the taxing master clearly acted unjudicially;

(ii) costs which were incurred well after the case had been finalized should not

be the G concern of the applicant;

(iii) since the case ended up ex parte and not much research went into the

hearing, the award for advocates fees was on the high side.

Case Information

Order accordingly. H

Katabalwa, for the applicant.

Judgment

Masanche, J.: This is an appeal by one Haji Athuman Issa, who is represented by Mr.

Katabalwa, the learned advocate, against an award of Bill of costs to one Rweitama I

Mutatu. The respondent

1992 TLR p373

MASANCHE J

was awarded what appears to be an omnibus figure of Shs. A

100,450/=. The respondent had asked to be awarded a figure of shs.131,450/= plus shs.

7,120/= as costs.

It is common knowledge that the applicants had wrongly filed a case, against the

respondents, in the High Court. Counsel, Mr. Katabalwa, and Mr. Rweyemamu,

appeared before the High Court. In the end, the case got dismissed and the present B

applicant was condemned in costs.

The Bill of costs had been filed by the respondent himself, and not an advocate,

which has surprised me. Anyhow, it appears Mr. Rweyemamu had or has abandoned

the respondent. C

But then, can the respondent come back and claim costs for the appearance of his

advocate? This he cannot do, especially where the record does not show whether the

respondent appeared or not.

Can, again, the respondent apply to be paid costs for anything that might have

happened after the conclusion of the case, which we are told was on 16/10/89? I agree

with Mr. D Katabalwa that the respondent cannot so claim.

Admittedly, the application for the Bill of Costs was entertained by the taxing master

in the absence of the applicants. But, even then, the taxing master was bound, to my

mind, E to consider the reply of the respondent, which was in the file. A person who

prosecutes a case alone, in the absence of the other party on the other side, does not

have an easy ride to the case. He has, still, to prove the case on a balance of

probability. The court does not have to take everything that is thrown in: My brother

Bahati, J, has F remarked in the case of Felix M. Shirima v Mohamed Farahani and

another, (Civil Case No. 23 of 1981 of High Court Dar es Salaam Registry unreported)

that:

There must be proof of the case on the standard required by law, which is on

the balance of G probabilities even where a case proceeds ex parte.

Respondent, in this case, while acting ex parte, only threw in figures on the table of

the taxing master, and the taxing master endorsed them. He slashed some shs.30,000/=

H only.

The law about taxation is this: That judges will in most cases not interfere with

questions of quantum, because these are regarded as matters with which the taxing

master is particularly fitted to deal with. But, and that is a big 'but', the court could

interefere if the I taxing master clearly acted unjudicially. (See the case of Haidan

1992 TLR p374

MASANCHE J

Bin Mohamed Elmandry and others v Khadija Binti Ali Bin Salen [1956] 23 A

E.A.C.A. 313).

The Bill of costs shows that shs. 40,000/= was paid out for Advocates fees. That, to my

mind was on the high side. The case ended up ex parte. Not much research went into

the hearing. The law provides as follows: B

1. That briefing should be based on the amount of work involved; in

preparing for hearing, the difficulties and importance of the case, and the amount of

money involved; C

2. Time occupied in the hearing and the amount of research required to

examine the issues, is also considered (see the cases of George Mbugus and Another v

A.S. Maskini [1980] T.L.R., at page 53 Premchant v Quarry Services [1972] E.A. 1962;

and D Haidari's case quoted Supra).

I slash shilling 20,000/= from item No. 1. I award Shs.20,000/= only, on that item.

The items on disbursements have caused me concern. E

It is true that the respondent has inflated some of them, I, again, doubt of the

authenticity of many of the food receipts. They all seem to be in the handwriting of

the respondent himself. I have also been unable to verify on the lodging receipts.

They also seem to be in the handwriting of the respondent himself. F

There are also costs which were incurred well after the case had been finalised. I

agree with Mr. Katabalwa that those costs should not be the concern of the applicant.

They are therefore struck out. On the whole, on disbursements, I would award

Shs.20,000/=. This should also include travel. G

The Bill of costs is taxed at Shs. 40,000/=

H Order accordingly.

1992 TLR p375

A