CB NDEGE v EO ALIYA AND AG 1988 TLR 91 (CA)

 CB NDEGE v EO ALIYA AND AG 1988 TLR 91 (CA)

Court Court of Appeal of Tanzania - Dar Es Salaam

Judge Msoffe, SDR

29th June, 1988

Flynote

Bills of costs - Party not blamed in any way by judgment - Whether liable to pay

costs. B

Bills of costs - Limitation as to costs - "Reasonable" amount depending on

circumstances of each case - Rule 9 of 3rd schedule Court of Appeal Rules 1979.

Bill of costs - Disbursements - Need for justification . C

-Headnote

In the court of appeal of Tanzania the appellant won his appeal against the

respondents. Following the verdict, the appellant filed a bill of costs through his

counsel, Mr. D Lukwaro, for a total sum of 965,237/90. A preliminary point was

raised that the first respondent should not have been made a party to the present

application because he was not blamed in any way in the court of appeal judgment

and as such, not liable to pay costs. E

The bill consisted of a total number of 19 items. At the time of hearing the 18th item

was struck off. Items 1, 3 - 11 were not in dispute and were taxed accordingly. Item 2

covered instructions costs under which a total sum of 250,000/= was presented. Items

12, 13, 14, 15, 16, 17, 19 and 20 were on disbursements. F

Held: (i) A decision as to who should or shouldn't pay costs is a matter for the court to

say and not the taxing master;

(ii) if the court was of a different view in so far as costs against the first

respondent, it should have specifically stated so;

(iii) the Court of Appeal judgment is clear that the appeal was allowed with

costs G without any qualifications as to who shouldn't pay costs;

(iv) the law on costs of instructions to appeal is contained in rule 9 of the 3rd

schedule to the Court of Appeal Rules, 1979 and the amount to be "reasonable"

depending on the particular circumstances of each case; H

(v) instructions costs to appeal must be commensurate with amount of time,

energy and industry involved and the sum should not be pegged to the "fund"

deposited by any party;

Case Information

Bill accordingly assessed. I

1988 TLR p92

MSOFFE SDR (TAXING MASTER)

No case referred to. A

Lukwaro for the appellant

Marando for the 1st respondent

Macha for the 2nd respondent B

[zJDz]Judgment

Msoffe, S.D.R. (Taxing Master).: In the Court of Appeal of Tanzania, Civil Appeal No.

3/87 the appellant Casmir Bigacho Ndege won his appeal against both respondents i.e.

Edward Oyombe Ayila and the Attorney General. Following that verdict, Mr. C

Lukwaro filed the appellant's bill of costs. The bill is for a total sum of Shs.

965,237/90. Further to filing the same, Mr. Lukwaro appeared and argued the bill

before me while the 1st and 2nd respondents were represented by both Mr. Marando

and Mrs. Macha respectively.

A preliminary point was raised from the very outset i.e. that the 1st respondent

should D not have been made a party to the present application. Mr. Marando who

raised this point, argued that Mr. Edward Oyombe Ayila should not be liable to pay

costs since he is not blamed in any way in C.A.T. judgment. In support of this

contention he cited, inter alia, the relevant Court's judgment at page 8 thus: E

We have gone through the other grounds of complaint, especially those in

connection with allegations of corrupt acts and in respect of the status of the 1st

respondent had failed to establish or prove his allegations. F

In answer to the above submission, both Mr. Lukwaro and Mrs. Macha were of the

view that the 1st respondent should pay costs; arguing among other things, that, a

decision as to who should or should not pay costs is a matter for the Court of Appeal

to G say and not the Taxing Master. And further that if the court was of a different

view in so far as the 1st respondent is concerned, it would have specifically stated so. I

agree.

Reading through the C.A.T. judgment it is clear that the appeal was allowed with

costs H without any qualifications as to who shouldn't pay costs. In that regard

therefore my answer to Mr. Marando's submission is simply that the 1st respondent is

also liable to pay costs.

The bill consists of a total number of 19 items, the 18th item having been struck off at

the I time of hearing this application. It was struck off at the request of counsel (Mr.

Lukwaro).

1988 TLR p93

MSOFFE SDR (TAXING MASTER)

Item 1, 3 - 11 are not in dispute. They are accordingly taxed as presented. A

Under item 2 (instructions to appeal) a total sum of 250,000/= is claimed. In support of

this claim Mr. Lukwaro contended, among other things, that much energy and time

were spent in preparing for and prosecuting the appeal. He had to go through 338

pages, look B for and cite relevant authorities, and that generally the appeal was

much involving in that it took two days to be heard, and that in the course of all that

time both points of law and fact were raised and argued. Both Mr. Marando and Mrs.

Macha were of the view tht the 250,000/= is on the high side and that awarding it

would amount to C excluding the poor from litigating their rights. They did not

however directly address themselves to Mr. Lukwaro's arguments on time, energy etc.

spent on the appeal. This notwithstanding, the law on this aspect is as contained in

Rule 9 of the Third Schedule to The Court of Appeal Rules, 1979. Going by the law

and the facts before me, I would D answer Mr. Lukwaro by simply saying this:- That

much as I agree that a fairly amount of time, energy, industry etc. were spent by

counsel but the 250,000/= is certainly not commensurate with all that effort. To my

mind the sum is on the high side. I say so fully conscious of the fact that in view of

the "fund" of the respondents (especially the 2nd E respondent) that sum could easily

be paid. The idea however is to allow such sum as would he reasonable in the

particular circumstances and not necessarily tying oneself to the "fund" of a person. In

my view a sum of 125,000/= would be reasonable and just in the circumstances. I

accordingly allow 125,000/= and tax off the rest. F

Item 12, 13, 14, 15, 16, 17, 19 and 20 are DISBURSEMENTS. Where possible receipts

were produced by counsel to justify the alleged expenditures. In others some of the

alleged expenditures were unreceipted it being alleged that it was not always easy to

G secure receipts. It is Mr. Lukwaro's general contention however that both the

receipted and non-receipted expenditures were necessary since in preparing for the

appeal the appellant had to travel extensively in looking for and instructing counsel

and that by so doing he had to incur considerable expenses. H

On the issue of DISBURSEMENTS and with particular reference to the present

application, the reasoning obtaining in Mulla's Code of Civil Procedure 13th Edition

Vol I and at page 152 para 7 is to a certain extent relevant for my purposes. In the said

paragraph Mulla states: I

1988 TLR p94

MSOFFE SDR (TAXING MASTER)

Everything which increases the litigation and the costs and which places on

the defendant a A burden which he ought not to bear in the litigation is a perfectly

good cause for depriving the plaintiff of costs. A successful party will be deprived of

the costs of issues which he has unneccesarily raised. B

Admittedly the appellant had to travel in order to look for and instruct counsel, and

that by so doing he had to incur expenses. However one wonders if all the trips were

really necessary. And assuming they were, one wonders further if it was necessary to

spend so C much time on each such trip. Indeed even some of the local expenses in

the form of taxi hire charges are also questionable.

Under item 12 a total of 81,470/30 is claimed as expenditure icurred during one such

trips. It is clear here that the appellant was in Dar es Salaam during this trip alone, for

a D total number of 31 days! Was it necessary for him to stay for all this long period?

One wonders if for all those days he was looking for counsel! I would only say that

much as one may appreciate the necessity for the trip in question, the time spent for

the purpose, was unnecessarily long. I will only allow the air tickets; a maximum of

ten days which I E fix at 3000/= per day to include both accommodation, food

expenses and local transport. Accordingly only the sum of Shs. 37,970/= is allowed for

this item; and the rest is taxed off.

Item 13 is another such trip where a total sum of 30,097/50 is claimed. Presumably he

had to make this other trip, again, to look for and instruct counsel if his first trip

under F item 12 hadn't been a success. However, the 15 days here was again

unnecessarily long. In the same way I will allow only his air tickets, and a maximum

of 3000/= per day to include accommodation, food expenses, and local transport. I

therefore allow only Shs. 11,985/= for this item and tax off the rest. G

Under item 14 he claims to have travelled to Dar es Salaam for the same reasons, and

claims a total sum of 160,805/25. According to Mr. Lukwaro, this trip (along with

those in items 12 and 13) was necessary since he was still looking for good counsel of

his H choice. It may be of interst to note here that all this time Mr. Lukwaro's firm

had not been engaged. Indeed it is not in dispute that they were engaged in February

1987. I will reluctantly accept Mr. Lukwaro's submission but will allow only the air

tickets and a maximum of two days which I fix at 3000/= per day to include

accommodation, food I expenses and local transport. Accordingly I

1988 TLR p95

MSOFFE SDR (TAXING MASTER)

allow a total sum of Shs. 8,985/= under this item and tax off the rest. A

Item 15 is yet another trip to Dar es Salaam where a total sum of Shs. 72,898/= is

claimed. To say the least this trip was not necessary. It was made at a time when Mr.

Lukwaro's firm had already been engaged vide item 16. Having instructed counsel

one B wonders if it was still necessary for him to travel to Dar es Salaam at this time.

I will accordingly disallow this item.

Item 16 was probably necessary since this was the time that he engaged counsel. As

mentioned earlier Mr. Lukwaro's firm was engaged in February 1987 and this trip was

C allegedly made between 25/1/87 and 28/2/87. The trip was necessary so that he

could adequately brief counsel. Against this item a total sum of Shs. 110,986/50 is

claimed being an amount spent during a total stay of 33 days! This again was another

unnecessarily long stay. One wonders if it takes one slightly more than a month to

brief D counsel! I will allow only his air ticket and a maximum of 6 (six) days at

3000/= per day to include accommodation, food expenses, and local transport.

Accordingly this item is taxed at Shs. 11,860.00 only.

Item 17 is yet another trip to Dar es Salaam (via Moshi) lasting for a total number of

31 days against which a total sum of 87,116/= is claimed. I share the view expressed

by E Mr. Marando that having briefed counsel this trip was absolutely unnecessary.

Indeed even Mr. Lukwaro does not justify the necessity for this particular trip in

spite, of course, of his general assertion (as he did with other items) that it was

necessary for him to travel and brief counsel. Even if one were to allow this item still

the period taken would be F highly questionable. All in all, I disallow the whole of

this item.

The trip in item 19 was necessary. This was made at a time when a date of hearing the

appeal had already been set and Notices issued. According to a Notice of hearing

dated G 20/6/87 the date of hearing the appeal was set for 13/7/87. It was therefore

necessary for the appellant to make final consultations with counsel with the view to

putting ends together. However it was not necessary for him to spend all that long

period from 14/6/87 to 24/6/87. Presumably by this time counsel had gone through

the record and H client's long stay was not only unnecessary but a useless bother to

counsel. I will allow only the tickets and a maximum of two days at 3000/= per day to

cover accommodation, food expenses and local transport. Accordingly the item is

taxed at Shs. 9860/= only.

Item 20 encompasses the period during which the appeal was heard. Against this item

a I total sum of Shs. 100,447/10 is claimed.

1988 TLR p96

It is certainly understandable why the appellant had to be in Dar es Salaam during the

A time of hearing the appeal and possibly some few days later to do the following:

(a) Wait for date of delivery of judgment.

(b) Sort out with counsel taxation matters after the judgement B

(c) Make travel arrangements home.

However, it is still not clear to me why he arrived in Dar es Salaam as early as 29/6/87

C when the appeal was set down for hearing on 13/7/87! This early arrival was

unnecessary. Even Mr. Lukwaro submitted nothing to justify this early arrival. The

appellant's presence two or three days before the date of hearing could be

understandable but not earlier. As such I will allow only his tickets, and a total of 21

D days (1/7/87 - 31/7/87) at Shs. 3000/= per day to include accommodation, food

expenses and local transport. Accordingly the item is taxed at Shs. 66,860/- only.

In the end result the appellant's bill of costs is taxed at Shs. two hundred and eighty

four thousand and eighty only (284.080/=). E

Bill accordingly assessed.

1988 TLR p96

F