RULING SUKARI RULING VS BURTON TWISA LAND REFERENCE NO

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB-REGISTRY AT MBEYA LAND REFERENCE NO. 3651 OF 2024 (Arising from the Decision of Taxing Master in Taxation Cause No. 38 of 2023. In the High Court of Tanzania at Mbeya) ALFRED SUKARI………………….…………………………APPLICANT VERSUS BURTON TWISA………………………………………..…..RESPONDENT RULING Date of last Order: 12th June, 2024 Date of Ruling: 13th August, 2024 KAWISHE, J.: This reference has been brought by way of chamber summons under the provisions of Order 7(1) of the Advocates Remuneration Order, 2015 G.N No. 263 of 2015. It was supported with an affidavit sworn by Alfred Sukari, the applicant. In the chamber summons the applicant prayed for the following orders: (i) That this Honourable court be pleased to quash and set aside the decision of Honourable A. Temu, Taxing master on the Taxation Cause No. 38 of 2023 dated 30th January 2024 for awarding colossal sums without justification and misapplying the law. 1 (ii) That this honourable court be pleased to reassess the cost awarded in the said Taxation cause. (iii) Any other relief this Honourable court may deem fit and just to grant. The respondent, Burton Twisa filed counter affidavit objecting the same. The matter was disposed by oral submissions. Mr. Habib Kamru Msonde, learned advocate represented the applicant while, Mr. Hassan Gyunda, learned advocate represented the respondent. The brief facts of this matter are as follows; the applicant herein, Alfred Sukari before this court was a plaintiff in Land Case No. 40 of 2022 which was confronted with preliminary points of objection from the 4th defendant who is now the respondent. The trial court sustained those preliminary objections and struck out the suit with costs. Having the matter struck out, the respondent Burton Twisa filed a Taxation Cause No. 38 of 2023 which was granted and taxed at the tune of TZS. 12,680,000/=. Aggrieved with the decision, the applicant filed this Reference before this court challenging decision of the taxing master. Submitting in support of the application, Mr. Kamru argued that, the amount taxed was of high side as the instruction fees were granted as presented, meaning that the amount was excessive. It was his argument that, during the hearing the issue was the proper schedule to be used in that taxation, was 9th or 11th schedule. 2 It was his submission that, the taxing master held that 9th schedule applies which deals with liquidated sum. He contended that, the issue is whether the land case which costs were awarded was on liquidated sum. It was his argument that, liquidated sum is on cases like breach of contract where there is a sum claimed by the plaintiff. He added that, one can peg the percent where the schedule provides for 3 to 7 percent. Mr. Kamru further argued that for other matters, taxation is not governed by the 9th schedule as there is no liquidated sum claim. To bolster his argument, he cited the cases of Edmund Ngeni vs. Mjanja Nagawa, Taxation Reference No. 01 of 2021, HC at Mwanza page 8 to 9, Tanzania Ports Authority and AG vs. JV Tangerm Construction Co Ltd and Technocombine Ltd (a joint venture), Commercial Reference Cause No.115 of 2022 page 15 to 16. Further, he submitted that the 9th schedule applies in money related cases where the amount is known at the beginning but in a land case like this at hand, what was claimed was the land and not the money hence, the taxing officer was supposed to tax under the 11th schedule. He prayed this court to re-assess and vary the amount of Tanzanian Shillings 12,000,000/= awarded as instruction fees which is excessive. 3 In reply, Mr. Gyunda submitted that, the amount taxed is not excessive rather, it is as per the law applicable in the taxation of bill of costs. He averred that, the 9th schedule to the Advocates Remuneration Order provides for taxation for liquidated sum in original and appellate jurisdiction and land cases. He added that, the subject of this contention has specifically certain amount of money which enabled the court to have jurisdiction. He submitted that, the case cited by the applicant’s learned advocate, Edmund Ngeni (supra) is distinguishable as it emanated from tortuous case. Mr. Gyunda further submitted that, the proper schedule must be the 9th because the Land Case No. 40 of 2022 had a specific amount which was prescribed for the value of that land which dictates the conferment of the jurisdiction of the High Court and the amount was above Tanzania Shillings 300,000,000/=. That, also land cases have values which can be compensatory. He asserted that, the principles of taxation were well observed by the taxing officer. Hence, the assessment was fairly reached by the taxing officer as she taxed at 4 percent of the value of the subject matter as the case ended at the preliminary stages. In fortifying his argument, he cited the case of Eco Bank (T) Ltd vs. AA Trans Ltd and Others, Civil Appeal No. 399 of 2020 CAT page 4 to 9. 4 He prayed this application be dismissed and the taxing officer’s ruling remain undisturbed. In his short rejoinder, Mr. Kamru reiterated his submission in chief and further argued that, the claim was not for liquidated sum as Land Case No. 40 was a claim to nullify the sale of the land by the order of the court, it was not a claim for money. That, the amount that mentioned to wit; Tanzania Shillings 300,000,000/= was to determine the jurisdiction of the court, it does not mean that Tanzania Shillings 300,000,000/= was the amount claimed by the respondent. Mr. Kamru further insisted that, the claim was to recover land and not a money claim hence, it is not a liquidated sum. Having gone through rival submissions from the parties, my point for determination is whether the Taxing Master correctly applied the 9th schedule in taxing instruction fees. In responding to the issue raised, I find it necessary not to meander around rather, to hit the bull’s eye straight away. By so doing, I am set to observe the position of the Court of Appeal in Eco Bank (T) Ltd vs. AA Trans Ltd and Others (supra), as cited by Mr. Gyunda, respondent’s leaned counsel. The main claim in the case was payment of Tanzania Shillings 994,818,151.12 and USD 1,299,761.98 plus interest accruing therefrom being outstanding loan amount extended to the first respondent and which was guaranteed 5 by the second, third and fourth respondents. In the cited case there was a claim with specific amount. Thus, there was a contractual breach. The respondents defaulted in paying back a loan as agreed. This means that, in the case there was a claim of a loan, the case was heard on merits while, the case at hand, not heard on merits as it was struck out at the preliminary stages. Also, the Tanzania Shillings 300,000,000/= in the case at hand was not the amount claimed rather, it was the value of the land in dispute. With due respect the case cited by the respondent’s learned counsel is distinguishable from the case at hand. In that, I concur with the applicant’s learned counsel that, the Tanzanian Shillings 300,000,000/= was not the amount claimed rather, it was the value of the land in dispute for jurisdictional purposes. Having observing the position of the case law cited above, I wish to throw a glance on the 9th schedule of the Advocate Remuneration Order, 2015. It provides for the scale of fees for contentious proceedings for liquidated sum in original and appellate jurisdiction. The applicant’s learned counsel Mr. Kamru cited the case of Emund Ngeni vs. Mjanja Nagagwa (supra) at page 8 in the last paragraph where it stated that: 6 “… liquidated sum is a compensatory figure for breach of a contract, based on an estimated or actual losses resulting from damages for breach of the concerned contract.” In the case at hand, as rightly submitted by Mr. Kamru the claim is to nullify the sale of the land by the order of the court hence, it does not fall under liquidated sum under the 9th schedule since it is a liquidated claim. It is his argument that, the case falls under the 11th schedule of the Advocates’ Remuneration Order, 2015. The schedule provides for costs of proceedings in the High Court, subordinate courts and tribunals specifically to say, to present, oppose, support winding up of company, dissolution of marriage, ancillary relief, custody, garnishee proceedings and prerogative orders, lastly to sue or defend in any case not provided for above. Moreover, a look at item (k) of schedule 11 reveals that it does not provide for specific amount to be taxed rather, directs reference to be made to the above item in that schedule. Regarding the immediate above item, it is item (j) which provides that, such sum as the taxing officer shall consider reasonable but not more than TZS.1,000,000/=. Although, the Taxing Master refuted the submission by the applicant’s counsel that, this matter does not fall under schedule 9, in my opinion, this matter does not qualify to be treated under such schedule. Given the fact that, schedule 9 is for liquidated damages while, the subject matter before the Taxing Master was not liquidated 7 then, it should have been determined under schedule 11 as suggested by the applicant’s counsel. In my view, the amount of money to wit; Tanzanian Shillings 300,000,000/= was not the subject matter. It was not a claim of money to be paid. It was just a value of the disputed land to ascertain the jurisdiction of the court to entertain the matter. Hence, it should the point of reference in the taxing. That, being the issue, the proper schedule to tax was schedule 11. In the circumstances item (j) was a proper provision of law for the Taxing Master to be guided with. Therefore, the order of the Taxing Master awarding costs under item 2 at the tune of Tanzania Shillings 12,000,000/= by applying 9th schedule in my humble view was not proper, as the claim was not on liquidated damages. Schedule 9 is for liquidated claims, but the case at hand is a land case which does not fall under liquidated damages. Further, the matter was disposed of at the preliminary stages. Consequently, the order is hereby quashed and set aside, in lieu thereof, I do hereby substitute it with the amount of Tanzania Shillings 1,000,000/= as per guidance of item (k) of the 11th schedule. That being the case, I do not see any necessity for disturbing the rest of the items in the bill of tax as the applicant did not make any complain on them. In the event the total taxed amount becomes Tanzania Shillings 1,680,000/=. I make no orders as to costs. 8 It is so ordered. Right of appeal explained. Dated and Delivered at MBEYA this 13th day of August, 2024. E. L. KAWISHE JUDGE Court: Ruling delivered virtually before Mr. Hassan Gynda, learned advocate for the respondent and Mr. Kapinga, holding brief for Kamru Msonde, learned advocate for the applicant. E. L. KAWISHE JUDGE 13/8/2024 9