Sianga v. Elias Misc. Civ. App. 3-A-71; 17/3/72; Bramble J.

Sianga v. Elias Misc. Civ. App. 3-A-71; 17/3/72; Bramble J.

This is a objection to taxation under rule 5 of the Advocates Remuneration and Taxation of Costs Rules, 1921. The Bill of costs was taxed in favour of the respondent who was successful in an appeal from a decision of the Moshi Rent Tribunal. The advocate who conducted the appeal on his behalf did not draw up the memorandum of appeal and was only engaged to argue it. The respondent was allowed 700/- under the item “for instructions.” This was opposed to on the ground that the respondent’s advocate can only be granted a fee for what he did i.e. conducting and arguing the appeal, but could not get an instruction fee.

            Held: (1)”The point in issue is how the term is “instructions” to be interpreted. In a reference in The Matter of the Stamp Ordinance, 1931 and in The matter of The Companies Ordinance, 1931 and the Bohemba Mines Limited Misc. App. 1 of 1940 quoted in the Tanganyika Law Reports Vol. 1 page 397, Webb C. J. said: - “In my opinion the word “instructions” in our rules should not be construed as if it were a term of art, but should be construed in relation to the conditions and circumstance of the country in which those rules are to be operate. Here an advocate is both solicitor and barrister, and the meaning that has been given and in my judgment rightly given, to the words “Fees for instructions” was that they are intended to cover, not merely the attendance of a solicitor when he takes his clients instructions, but all his work, other than that which is elsewhere specially provided for, in looking up the law and preparing he case for trial; in other words they correspond rightly to the fee marked on counsel’s brief.” I accept this view. The kinds of instructions mentioned in the First Schedule to Part 111 of the Rules are not exhaustive and indeed the fee of Shs. 60/= on the lower scale and Shs. 100/= on the higher scale for petition of appeal or opposing appeal would appear to be for the advocates attendance to receive instructions only. This does not cover remuneration for drafting a petition of appeal after studying the facts on the case and the law or studying these before proceeding to argue the appeal in courts. The present rules in England leave the taxation of instruction for appeal from an interlocutory or final order or judgment in the discretion of the Taxing Master and there are nine items under this heading; they include, for example, taking instructions to appeal, considering facts and law, perusing pleadings, affidavits, and other relevant documents, general care and conduct of the proceeding. This is in keeping with the interpretation of instructions in these courts. No case has been cited to support the proposition that instruction fees are limited to the attendance to receive instructions. All the decisions give the wider interpretation.” (2) Objection disallowed.