RULING ABEED MINAZALI MANJI v The Reg Trustee of mabinti wa Maria Kipalapala

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA LAND REFERENCE NO. 12243 OF 2024 ABEED MINAZALI MANJI (Administrator of The Estate of NADIR MINAZALI MANJI) …………………………………. APPLICANT VERSUS THE REGISTERED TRUSTEE OF MABINTI WA MARIA KIPALAPALA TABORA………………………..………....……... RESPONDENT RULING 4th & 26th July 2024. ITEMBA, J. By this application, the applicant is moving this court to examine the proceedings and Ruling of the taxing officer in Taxation No. 30 of 2023 for the purpose of satisfying itself as to correctness, legality or propriety of the said proceedings and ruling. Further, the applicant is inviting this court after finding the errors in the proceedings and ruling, to quash and set it aside for being excessive and unreasonable. The application is supported by an affidavit of the applicant while it is opposed by the counter affidavit of Dr. George Mwaisondola, counsel for the respondent. Briefly, the applicant herein sued the respondent and other four defendants in Land Case No. 23 of 2022.The matter was opposed by several points of Preliminary Objections. This court, on 16/6/2023 struck 1 out the suit with costs for failure to add Commissioner for Lands as a necessary party. The respondent being the winning party filed Taxation No. 30/2023 which was determined in her favour and the appellant herein was ordered to pay the respondent a total of Tshs. 6,475,000/=. The appellant was aggrieved by that decision hence this application. When the matter was scheduled for hearing, Mr. Daniel Malugu and Dr. George Mwaisondola both learned advocates represented the applicant and respondent respectively. It was the submission by Mr. Malugu that, the application is made under Order 7 rule 1(2) of the Advocates Remuneration Order, GN 264 of 2015 (hereinafter the Order). That, the decision of the Taxing Master was issued in the absence of parties and no summons was issued to parties contrary to O. XX rule 1 of the Civil Procedure Code (the CPC). According to him, the decision thereof is a nulity as it was held in Omary Shabani Nyambu v Dodoma Urban Water supply, Civil Appeal No. 303 of 2020 (unreported) at page 6. He went on submitting that, the instruction fee of Tshs. 4,000,000/= was excessively high and the respondents’ counsel could not prove the said amount because even the cheque submitted in support of the fee was not in the name of the respondent Registered Trustee of Mabinti wa 2 Maria but in the name of Morning Star. That, the amount was very high especially that the Land Case 23/2022 ended in the preliminary objection, the matter was not complex and no much efforts were made by the counsel in conducting that case. Reference was made to the case of Tanzania Rent Car Limited v Peter Kimuhu Civil Reference 9 of 2020. Mr. Malugu went on to submit that, the total appearances were only 5 and were made within 6 months therefore, the awarded costs aimed to punish the applicant and not to do justice. Regarding the cost for appearance, Mr. Malugu submitted that, it was double charged because according to the case of Junior Construction v MANTRA Ltd commercial reference No. 9 of 2022 attending to court is part of the business which the counsel is doing after being paid instruction fees. He therefore prayed for the fee to be re-determined. In reply, it was submitted by Dr. Mwaisondola that, the notice for ruling was issued and that, they were informed by phone but he did not appear. That, he was told by the court clerk that the respondent was also called. That, legality of the decision cannot be challenged when the parties were notified because no miscarriage of justice was occasioned. Further, taxation is governed by the Advocates Renumeration GN 264 of 2015, then 3 the CPC and the cited case of Omary Shabani Nyambu v Dodoma Urban Water supply are not applicable. In respect of the taxed amount, Dr. Mwaisondola submitted that, the taxing master used his discretion properly. That, in awarding instruction fee of Tshs. 4,000,000/= the taxing officer relied on the 11th schedule of the Order. Where the minimum costs to be awarded is Tshs. 1,000,000/=, hence considering the complexity nature of the case, time spent and time stayed in court for more than 12 months the taxing master cannot be faulted for awarding Tshs. 4,000,000/= instead of Tsh. 15,000,000/= which was prayed for. That, as proved by annextures Maria-B there is no dispute that the cheque was issued by the respondent. That, even without the cheque being issued, the amount was actually small. That, with regards to attendance fees of Tshs. 1,050,000 it was not contested in the reply submission. That, according to item 23(a) of the 8th schedule of the Order, for every 15 minutes the chargeable fee is Tshs. 50,000/= therefore, Tshs. 1,050,000/- was proper and it is not even contested. That, the case of Tanzania rent a car (supra) is distinguishable as it was on taxation in appeal not in original suit. That, the cost of 4 prosecuting the bill of costs was Tshs. 155,000 and the taxing master was justified. Dr. Mwaisondola went on to say that the application has no merit, the taxing amount of 6,475,000/- was not excessive it should not be disturbed but actually be increased and the application should be dismissed with costs. In rejoinder Mr. Malugu reiterated the submission in chief with addition that that, records do not support the argument that parties were called by phone and that remains mere hearsay. That, the time spent in court is not counted as explained by the respondent’s counsel. I have keenly considered the submissions of both parties. I will start with the contention that there was no notice of the date of delivery of the ruling. It is true according to the records that the matter was scheduled for ruling on 15/9/2023, the records are silent as to what transpired until on 20/11/2023 when the ruling was delivered. There is no record that parties were notified on the change of date. I was invited by Mr. Malugu to nullify the ruling for it is delivered contrary to Order XX rule 1 of the CPC). I agree with the position laid down in the case of Omary Shabani Nyambu vs. Dodoma Urban Water Supply and Sewerage Authority (supra) where the Court of Appeal t page 5 and 6 said; 5 “According to the above excerpt, it is crystal clear that the so-called judgment was pronounced in the absence of the parties. There is nothing to show that the notice for the judgment was issued to the parties as it was ordered earlier on. In the case of Awadhi Iddi Kajass v. Mayfair Investment Limited, Civil Application No. 281/17 of 2017 (unreported), while discussing the competence of the judgment that was delivered in the absence of parties who had no notice of the date of its delivery, like in the case at hand, the Court held that there was no operative, valid and effective judgment delivered in the absence of the parties who had no notice of the date of its delivery. As regards the effect of a judgment not delivered in accordance with the law, the Court, in the same case of Awadhi Idd Kajass (supra), relied on the case of Gilian's Modern Bakary v. F. J. Kuntner (1954) 21 EACA 123 and held that the judgment which is not delivered in accordance with the law, could not be taken to have come into existence as to be capable of being appealed against. Applying the principle in judgment delivered in the absence of the parties was not an effective, operative or a valid judgment which could have been appealed against. It was a nullity.” That reasoning by the Court of Appeal was reached after considering Order XX rule 1 of the CPC which provides: "The Court, after the case has been heard, shall pronounce judgment in open court, either at once or on some future day, of which due 6 notice shall be given to the parties or their advocates". (Emphasis added) In this matter the proceedings were governed by the Advocates Remuneration Order and not the CPC. In the case of Juma Mganga Lukobora and 7 others vs Tanzania Medicine and Medical Devices Authority (TMDA) and 3 others, Misc. Civil Application No. 642 of 2020 (unreported), this court inter alia held that; “It is the further findings of the Court that one cannot borrow a provision from the Civil Procedure Code Principal legislation to Advocates Remuneration Order which are mere rules. If the legislature had intended that in case of lacuna in the Advocates Remuneration Order, recourse should be made to the Civil Procedure Code, it could have stated so in expressly in its provisions.” (emphasis added). Therefore, while I emphasize the need for parties to be notified on the date of delivery of court’s decisions, I do not see eye to eye that in the proceedings for bill of costs failure to notify parties in the bill of cost on the date of ruling will lead to nullification of Ruling. I am of the considered view that determinations of the bill of costs has its only peculiarity in accordance with the Advocates Remuneration Order and not the CPC. I 7 therefore proceed to determine the matter on merit to see whether the Taxing Officer was correct in his determination of the bill f cost. The respondent has prayed for Tshs. 15,000,000 as instruction fee, the taxing master awarded Tshs. 4,000,000/=. As I have stated herein, the respondent was a defendant in Civil Case No. 23 of 2022. According to item 1(d) of the 11th schedule to the Advocates Remuneration order, fee for defending proceedings is based on the taxing officer’s consideration but should not be less than 1,000,000/=. Therefore, the law only provides for minimum amount and it is upon the discretion of the taxing master to go above the minimum. The words discretion was defined in the case of Kiriisa vs. Attorney General and another [1990-1994]1 EA 258 where it was held inter alia that; “…Discretion simply means the faculty of deciding or determining in accordance with the circumstances and what seems just, fair, right, equitable and reasonable in the circumstances…” (emphasis added) In our jurisprudence, discretional powers of the Taxing Officer are not exercised arbitrarily, the case laws have set out a list of conditions to be considered. In the case of Southern Highland Earthworks 8 Company Ltd v UAP Insurance Ltd, Taxation Reference No. 01 of 2021 (unreported) the following factors were outlined at page 5 of the ruling; a. The suit amount; b. Nature of the subject matter; c. Complexity of the suit d. Time taken for hearing and extent of research involved; e. Parties’ general behavior and facilitation of expeditious disposal of case; f. Public policy of affordability in litigation; and g. Maintenance of consistency in allowable quantum of costs. In his ruling, the taxing master at page 4 considered some of the factors, and I will quote; “To ascertain what should be charged, several factors including the nature of the subject matter, time spent, industry deployed and importance of the subject matter were taken on board. Time wise, a total of twelve months were consumed from the institution to the completion of the matter. Point of preliminary were raised and argued by way of written submission. Viewing all those objectively; I find it appropriate to tax item 1 at a tune of Tshs. 4,000,000”. Therefore, the Taxing Officer considered the time the matter survived in court and the fact that the matter ended in the Preliminary objection and 9 that it was heard by way of written submissions. According to the application for bill of cost filed by the respondent, there was tabled amount for consultation fee spent on 31/1/2023. It will be correct to conclude that the counsel for the respondent started to engage his time over the matter from 31/1/2023 when he was consulted by the respondent. In my interpretation, time spent for hearing should be distinguished from the time the matter survived in the court. The matter might survive before the court for a longer time in but not all days will include hearing, in some days the matter will be adjourned. It is my considered view that the time spent by the respondent in defending the suit was not more than six months. I have also considered the nature of the matter; it was correctly decided by the taxing master that, the matter ended on preliminary objection before my Brother Hon. Kamana J. who struck out the suit for being incompetent. I have also considered the last factor which requires maintenance of consistency in awarding quantum of costs. Luckily, I came across the judgement of my brother Hon. Morris J. in Civil Reference No. 1 of 2023 where the same parties herein were contesting for costs regarding their former suit before the District Land and Housing Tribunal. The matter before the tribunal ended on preliminary objection as well. The court 10 reduced the claimed amount from Tshs. 3,950,000 to Tshs. 1,5000,000/=. This court at page 14 of the ruling said; “Therefore, considering the circumstances involved in this matter, I am inclined to reduce the instruction fee to Tshs. 1,500,000. Without repeating myself, unnecessarily, the proceedings from which taxation emanated was neither based on liquidated sum nor was the case complex. Further, appearance by the respondent and/or his counsel is cumulative for seven months only; and in the interest of public policy, people should be allowed to access justice inexpensively; court justice should not be reserved only for the well-to-do people; and parties not to be penalized by the inactions or omissions of their respective advocates.” (emphasis added) Henceforth, considering consistency, and the nature of this matter, which engaged the respondent for six months and ended on Preliminary stages, taxation of Tshs. 2,000,000/= as instruction fee was enough to be issued to the respondent. I therefore reduce Tshs. 4,000,000/= taxed by the Registrar and substitute it with Tshs. 2,000,000/=. Regarding the cost for appearance, Mr. Malugu submitted that, it was double charged because attending to court is part of the business which the counsel is doing after being paid instruction fees. While I agree that 11 being paid the instruction fee the counsel is engaged to use his time and resources on prosecuting or defending proceedings, I hold a different view that the advocates remuneration order does not intend to curtail attendance fee. That is why under item 23 (a) of the 9th schedule of the Order the fee for attendance is set at Tshs. 50,000/- for every fifteen minutes. However, in awarding Tshs. 1,050,000/- the taxing master considered the time wasted in waiting for court sessions. I will differ with him in that, the law did not intend for the waiting time to be considered. Waiting for court proceeding is a matter which is hard to prove and if allowed, it might trigger chaos in computation of costs and attract unnecessary and excessive taxation. This principle if applied, will also be impracticable when the matter is heard by way of teleconference. Further, in the same Reference No. 1 of 2023 between the parties herein it was stated at page 17 that; “…in law, appearance means appearance before the adjudicator when respective proceedings are recorded not the time spent in court corridors or registries.” As I have stated herein above, the Preliminary objection was heard by way of Written submissions. Therefore, save for the date of delivery of 12 the ruling and perusal of court’s file, parties cannot be said to have spent more than 15 minutes appearing before the court for mention, filling, or scheduling for written submissions. Therefore, I reduce the taxed Tshs. 300,000/= for item 2 and 3 to Tshs. 50,000/= each and taxation of items 5, 7, 9 and 10 are also reduced to Tshs. 50,000/= each. Regarding items 6 and 8 the taxed Tshs. 100,000 for each item was reasonable for delivery of ruling and perusal. I have also noted that item 4 for mention was not taxed by the Taxing Officer therefore, I tax it at Tshs. 50,000/=. Therefore, the cumulative cost for attendance is a total of Tshs. 550,000/= instead of Tshs. 1,050,000/=. The applicant did not object taxation of Tshs. 170,000/= being disbursement of court fee for filling and consultation fee therefore it stands as it is. Lastly, the fee for prosecuting the bill of costs was objected by Mr. Malugu that Attendance fees of the main case and attendance fees of bill of costs is not allowed and it is considered as double charge. According to Dr. Mwaisondola cost of prosecuting the bill of costs was taxed at Tshs. 155,000/-. To him, the amount was justified because even the bill of costs 13 has to be paid for. I have carefully read the ruling of the taxing Officer, the cost for prosecuting the bill of cost was taxed at Tshs. 1,000,000/=; attendance fee at Tshs. 200,000/= and folios of the written submission at Tshs. 155,000/= a total of Tshs 1,355,000/= was taxed contrary to what Dr. Mwaisondola said to be Tsh. 155,000/=. On taxing the amount of Tshs. 1,000,000/= the taxing officer considered item 1 (m) of the Remuneration Order which provides for fee for applications, notices of motion or chamber applications, (including appeals from taxation). In my view item 1 (m) was wrongly applied. What was before the Taxing Officer was a bill of costs not an appeal from Taxation. With regards to fee for prosecuting the bill of costs, the scale is not provided for, it is therefore left blank for the taxing master to fill it. Order 55 (3) of the Remuneration order reads; “Fees for attending taxation shall not be included in the body of the bill, but the item shall appear at the end, and the amount left blank for completion by the taxing officer.” What is completed in the blank item is a fee for attending taxation as opposed to instructions, drawing or appearance fees. Further, I was surprised that the ruling of the Taxing officer was delivered on 20/11/2023. 14 However, the taxing officer included the attendance fee for that date while according to the proceedings, the ruling was delivered in absence of both parties meaning that, the respondent entered no appearance. I think the law has a rationale in not prescribing the attendance fee for prosecuting the bill of costs. The taxing master is in good position to see what was reasonable amount considering the circumstances of the matter. What is awarded indeed must be reasonable and it shall not intend to punish the judgement debtor who was already ordered to pay cost to the decree holder. Dr. Mwaisondola submitted that Tshs. 155,000 was reasonable because even in the case of Strategis Insurance Tanzania Ltd vs Salaaman Health Centre, Civil Reference No. 5 of 2023 this court found the amount of Tshs. 500,000/=awarded to prosecute the bill of cost to be reasonable. Considering the element of consistency and the fact that parties appeared once when it was ordered the bill of costs to be argued by way of written submissions, Tshs. 500,000/= is reasonable for attendance to prosecute the bill of cost. I therefore reduced the taxed Tshs. 1,355,000 to Tshs. 500,000/=. 15 In upshot, the total taxed amount of Tshs. 6,475,000/= is reduced to Tshs 3,220,000/=. This application is therefore granted to that extent explained, with costs. It is so ordered. DATED at MWANZA this 26th day of July, 2024. L. K. J. ITEMBA JUDGE Ruling is delivered in chamber, in presence of Advocated Sunday Ulomi and Iche Mwakira both holding briefs for Advocated Daniel Marugu and Dr. George Mwaisondola for the applicant and respondent respectively and Ms. G. Mnjari, RMA. L. K. J. ITEMBA JUDGE 16