Court name
Court of Appeal of Tanzania

CB Ndege vs EO Aliya and AG () [1988] TZCA 9 (01 June 1988);

Law report citations
1988 TLR 91 (TZCA)
Media neutral citation
[1988] TZCA 9

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).

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

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 Iexpenses and local transport. Accordingly I

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.

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.

F