HASSANI KILALA v JUMA SAID 1994 TLR 87 (HC)

 

HASSANI KILALA v JUMA SAID 1994 TLR 87 (HC)

Court High Court of Tanzania - Dodoma

Judge Mwalusanya J

CIVIL APPEAL 117 OF 1993 F

1 February, 1994

Flynote

Taxation of costs - Proper procedure to comply with - Proper taxing masters - GN 515

of 1991. G

-Headnote

The appellant filed a fresh case in a Primary Court intended to be a Bill of costs for

taxation for a case which started from a Primary Court and ended with the High

Court. The bill of costs presented H at the Primary Court was for a claim of Shs

123,000/=. After taxation the Primary Court Magistrate allowed a sum of Shs 21,000/=

only. On appeal the District Court raised the sum to Shs 37,200/=. He appealed further

to the High Court.

Held:

(i) It was improper for the appellant to file a fresh case for taxation I

1994 TLR p88

A proceedings; he should have filed his bill of costs in the same case file

itself in which he was successful;

(ii) For cases starting from the Primary Court and ending in the District

Court the taxing master is the Primary Court Magistrate Concerned;

(iii) For cases starting from the Primary Court and ending in the High

Court the taxing master is the District Registrar of the High Court;

B (iv) For cases starting from the Primary Court and ending in the Court of

Appeal of Tanzania the taxing master is the Registrar of the Court of Appeal or his

deputy. Order Accordingly.

Case Information

No case referred to.

[zJDz]Judgment

C Mwalusanya, J:

The appellant Hassani s/o Kilala filed a bill of costs at Kondoa Urban Primary Court

for taxation. In fact he filed a fresh case, Civil Case No 23 of 1993. The bill of costs

was for a case that started at D Kondoa Urban Primary Court as civil case No 3 of

1987, then the case went on appeal to Kondoa District Court as Civil Appeal No 16 of

1988 and ended with the High Court Dodoma Civil Appeal No 77 of 1991. The bill of

costs presented at the Primary Court was for a claim of Shs 123,880/=. The E bill of

costs after taxation a sum of Shs 21,000/= only was allowed. The District Court on

appeal raised the sum payable as costs to Shs 37,020/=. The appellant was aggrieved

and hence the appeal to this court.

It is patently clear that both the Primary Court and District Court are ignorant about

where taxation F proceedings are to be conducted. If they knew they would have

advised the appellant accordingly.

The first mistake that was made was that it was improper for the appellant to file a

fresh case for taxation proceedings. It was wrong in here to file Civil Case No 23 of

1993. The proper procedure is G for the applicant to file his bill of costs in the case

file itself in which he was successful - that is civil case No 3 of 1987. The taxation

proceedings in the main suit.

Secondly, it appears the two magistrates who dealt with the matter are not aware of

the The H Advocates Remuneration and Taxation of Costs Rules GN No 515 of 1991.

These Rules are made under the provisions of the Advocates Ordinance Cap 341.

These rules as per rule 2 are applicable to courts subordinate to the High Court. For

cases starting from the Primary Court and ending with the High Court the taxing

master is the District Registrar of the High Court. For a case starting with a I

Primary Court and ending with the Tanzania Court of Appeal the taxing master is the

Registrar of

1994 TLR p89

the Court of Appeal or his deputy. For a case starting from the Primary Court and

ending in a District A Court, the taxing master is the Primary Court Magistrate

concerned.

Therefore in the case at hand the Primary Court Magistrate concerned was wrong to

usurp the functions of the District Registrar because the suit in question ended in the

High Court. The trial B magistrate should have advised the appellant to file his bill

of costs with the High Court. The procedure explained above has an advantage

because the High Court has all the proceedings of the Primary Court and those of the

District Court and so it becomes easy to take note of appearance of the parties in

Court. In the case at hand the Primary Court Magistrate has no case file of the High

C Court and so he had only to guess or speculate as to how many appearances the

parties made at the High Court.

That was quite improper.

In the event I declare the proceedings of both courts below to be a nullity. The

appellant should file a D fresh bill of costs with the High Court. Each party will bear

its own costs of this appeal.

As this error that has presented itself in this appeal is common all over the Zone, I

direct the District Registrar to serve a copy of this judgment to all Primary Court

Magistrates and District Magistrates of this zone. Order accordingly. E

1994 TLR p89

F