Zuberi Gige v. The Returning Officer, Babati, and The Hon. Peter Marke, Misc. Civ. Cause 10-A-70, 8/7/72, Patel, Ag. J.

Zuberi Gige v. The Returning Officer, Babati, and The Hon. Peter Marke, Misc. Civ. Cause 10-A-70, 8/7/72, Patel, Ag. J.

This matter arose out of an election petition under the Election Act, 1970, by an unsuccessful parliamentary candidate who is the present applicant. In the original petition, the returning officer was the respondent, and the successful candidate, Mr. Marke, was later joined as the second respondent. The petitioner lost his case and costs were awarded against him. The respondents bill of costs as accepted by the taxing master included (inter alia) instruction fees ostensibly paid to a state attorney who represented the respondents. Moreover no bills or voucher were attached to support the disbursements claimed. The applicant now attacks the taxing master’s decision.

            Held: (1) By virtue of s. 132 (2) Election Act, 1970. The provisions of s. 45, First Schedule, Civil Procedure Code, relating to the awarding of costs, apply mutatis mutandis to election petitions. (2) Applicant’s counsel submitted that a state attorney is not an “advocate” as defined by s. 2, Advocates Ordinance, Cap. 341, as “any person whose name is duly entered as an advocate upon the Roll”. However “a state attorney is an advocate under section 3 of the Advocates Ordinance as he is entitled to practice as an advocate in the High court or any court subordinate there to provided he does so in connection with the duties of his office.” (3) “The question arises whether Instruction Fees are included in the order of the court when it awarded costs to the respondent, who in the present Bill of costs is the Returning Officer and not the successful candidate ….. It is a fact that neither of the respondents paid any fees to the sated attorney who represented them at the hearing of the partition, who again is paid a salary by the Republic and he represented the Attorney General and normally represents the Attorney General in Courts. ….. Is the Attorney General or the Republic entitled to instruction fees amounting to Shs. 2,000/= when in fact this sum is not shown to have been spent by anyone to anybody? Or did the state attorney argue the petition as part of his normal duties? I refer to Para 585 of Halsbury’s Laws of England, 3^rd edition Vo, 14, on page 320-320. It says: “The Director of Public Prosecutions and his assistant or representatives are to be paid such allowances as the Treasury may approve for expenses for the purposes of Part 111 of the Representation of the Peoples Act 1949 other than his general duties of making inquiries into corrupt or illegal practices which he is informed have occurred and of instituting prosecutions which appear to be required. The costs incurred in defraying the expenses of the Director of Public Prosecutions incurred for those purposes including the remuneration of his representative are in the first instance, to be paid by the Treasury.” The operative words have been underlined by me which are “expenses “ “other than his general duties” and “costs incurred”. The word “expenses” suggests money actually spent and not “instruction fees.” As for “other than his general duties”, are not instructions to the state attorney, who is a representative of the Attorney General, to defend the petition and conduct the hearing of the petition a part of his general duties as a state attorney? The words “costs incurred” would mean money actually spent and not instruction fees. [Citing as the closest precedent R. v.  Michael Mhuto, (1970) H.C.D. n. 212] ……. For these reasons, though the petition was dismissed with costs, this order for costs does not and cannot include instruction fees as claimed by the respondent and the respondent and the respondent is not entitled to it.” (4) “Now I will deal with the second leg of Mr. Kirrita’s arguments which is on disbursements claimed. The main claimed were attached to the said bill of costs as required by Rule 53 of the advocates Remuneration and Taxation of costs Rules, Cap. 9 Vol. 1 of the Applied Laws ….. Going through the bill of costs it can be seen that not only has the respondent failed to submit supporting bills and vouchers but the amount claimed as disbursements is not correctly itemized ….. Moreover under Rule 60 of Cap. 9 it is mandatory for an advocate to make a signed statement when claiming witnesses’ expenses containing many details … The taxing master just did not have sufficient material before him to enable him to decide which disbursements to allow and how much and in respect of whom …. This Court as a rule does not interfere with the decision of the taxing master on a question of fact or amount but where the taxing master has not had reasonably sufficient material before him or has not taken into account matters that he should have considered, this court can order a Review. For this I refer to Halsbury’s Laws of England, 3^rd edition, Vo, 14, paragraph 821 on page 838-439. For these reasons I order that a Review of Respondent’s Bill of Costs as regards disbursements only be conducted before another taxing master.”