scannerALLY HASSAN NAMANGAYA VS TUTINDAYA

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND REFERENCE NO. 32291 OF 2024 (Arising from the decision in Taxation Cause No. 26593 of2029 before Hon. M.P Mrio, Taxing Officer) ALLY HASSAN NAMANGAYA................................ ............... APPLICANT VERSUS TUTINDAGA JOHN MWAMBENJA (AS ADMINISTRATRIX OF THE ESTATE OF LATE SABETHA MJ MWAMBENJA)....... RESPONDENT RULING 19/03/2025 & 20/3/2025 h. MSAFIRI, J: The applicant has filed this application seeking for the following orders by this court:- 1. That this Honourable court be pleased to revise and set aside the Taxing Officer's decision in Taxation Cause No.00026593 of 2029 which awarded costs of TZS 5,990,000/= to the complainant. 2. That the awarded costs be reassessed in accordance with the principles of reasonableness andjustice, taking into account the provisions of Advocates Remuneration Order, GN No.269 of 2015, and other relevant legal guidelines. 3. Any other orders/reiiefs the Honourable Court will deem just and fit to grant. , L i The application was filed pursuant to Rule 7(1) and (2) of the Advocates Remuneration Order 2015 and Section 95 of the Civil Procedure Code, Cap 33 R.E 2019 and was supported by an affidavit of Ally Hassan Namangaya, the applicant himself. The respondent filed a counter affidavit in contest of the application. It was deponed by Victor Alexander, Advocate instructed by the respondent to represent him. The hearing proceeded by way of written submission and the submission in chief by the applicant was drawn and filed by Mr Faraji Mangula, Advocate for the applicant while the reply submission was drawn and filed by Mr Victor Alexander, learned Advocate for the respondent. In the submission, Mr Mangula submitted that the reason for the instant reference is that the awarded TZS 5,000,000/= as instruction fee was unreasonable and contrary to the Advocates Remuneration Order No. 264 of 2015. That the Taxing Officer was required to award under item l(m)(ii) of the Eleventh Schedule of the Order. The counsel cited the case of Gold Africa Ltd vs. EB-Hance Co. Ltd, Taxation Reference No. 2714 of 2024, HC Commercial Division (Unreported) where the court emphasized that while the Taxing Officer has discretion in awarding instruction fees, such discretion must be exercised reasonably and not arbitrarily. 2 Mr Mangula submitted on the second reason for the instant reference is that the Taxing Officer ruling lacks a detailed explanation or justification for the awarded fees. He pointed that it is a fundamental principle that decisions, especially those involving financial implications must be accompanied by clear reasons to enable parties to understand the basis of decision. He added that it is a well-established principle that taxation of costs must be fair, reasonable and grounded in proper justification. That the Taxing Officer assessment in this matter failed to meet these fundamental standards. The counsel prayed that this court to revise the costs awarded and be reassessed in accordance with the principles of reasonableness and justice to reflect the actual work done. Mr Alexander prayed to adopt the counter affidavit in support of application and submitted in reply that the applicant has failed to justify his prayer of revising and setting aside the Taxing Officer's decision and the costs awarded to be reassessed. That the law under Order 12(1) of the Advocate Remuneration Order, GN. 264 of 2015 gives discretion power to taxing officers to award costs and expenses that appear to be necessary or proper for the attainment of justice. That the law and the relevant circumstances of the application enabled the taxing officer to exercise her discretionary power to tax the amount 3 as it was incurred by the respondent in defending the mentioned application. That there is nowhere it was shown that the law regulating the bill of costs was misapplied. Mr Alexander submitted further that the amount of Tsh. 5,000,000/= taxed as instruction fee is the amount incurred by the respondent being assessed in 3% of the subject matter of the Land Case No 13 of 2016. That the same was submitted by the Decree holder in written submission in chief to prosecute her case, for the taxing officer to award the same as requested by the decree-holder it is proper and just for the attainment of justice. On the issue of attendance fees TZS.50,000/= per attendance, Mr Alexander submitted that it is a fixed amount used in every attendance of the counsel for the respondent and his officers to attend at court, even if, the applicant held brief for the respondent there must be an officer from the office of the respondent of which the one who incurred those costs is the respondent. On the case of Gold Africa Limited versus Eb- Hance Company Limited (supra) cited by the applicant, Mr Alexander argued that it is different from the matter at hand and the court is not bound by it. rW / 4 He said that, as the applicant is moving the court to reassess the taxed bill of costs, it is the respondent prayer before this Court to consider that the respondent is still incurring costs more than what the applicant is praying to be reassessed. Mr Alexander moved the court to find that this application lacks merit and dismiss it with costs. On rejoinder, Mr. Mangula largely reiterated his submission in chief. He added that, the provisions of the Advocates Remuneration Order do not give power to the Taxing Officer to grant costs as he/she thinks fit. That this misconceived belief by the counsel for the respondent is contrary to what is provided by the law. That the law authorizes the Taxing Officer to award such costs and expenses as provided by the law, that is the Advocates Remuneration Order but in granting the same, the Taxing Officer should consider reasonableness and candour. Also the same should also be accompanied by clear reasons to enable the parties to understand the basis of the decision, something which is wanting in the Taxing Officer's decision. Mr Mangula rejoined further and vehemently contested the claims by the counsel for the respondent in regard of payment of TSZ 50,000 that there was "an officer" of the respondent present at the Court on 20/9/2024 when the counsel for the applicant held brief for the respondent. Mr 5 Mangula pointed that the claims are absurd and that that the respondent failed to realize that the said officer is not an advocate of the High Court of Tanzania and Courts subordinate thereto. He reminded the counsel for the respondent that, remuneration in regard to this case is reserved for Advocates only and not otherwise. Therefore, such claims forwarded by the Respondent proves to be baseless. On the cited case by the applicant, the case of Gold Africa Ltd vs.Eb- Hance Co. Ltd (Supra), Mr Mangula contended that it was different from the case at hand. Mr Mangula prayed the court to revise, set aside and reassess the Taxing Officer's decision in light of fairness and justice. Briefly, the Taxation Cause No. 26593 of 2024 emanated from Misc. Land Application No. 16386 of 2024 in this court before Hon. Luvanda,! The applicant has filed the said application seeking for extension of time to file a notice of appeal out of time against the Judgment and Decree of this court in Land Case No. 13 of 2016. After hearing, the application was dismissed with costs. Following that, the respondent in the instant matter filed an Application for Taxation which was granted and the respondent was awarded costs of TZS 5,490,000. The applicant was dissatisfied hence this application. 6 The reference is based upon two major grounds; First, that the Taxing Officer's discretionary power was not exercised judiciously and; Second, it was the averment of the applicant in his affidavit that, he was dissatisfied with the taxation on reasons that the instruction fee of TZS 5,000,000/= is excessive and contrary to the provisions of law, that the Taxing Officer failed to provide sufficient justification of awarded fees and that the claimed attendance and drafting fees are exaggerated and contrary to established norms and practice. On the respondent's side, through his counter affidavit, he denied the claims of the applicant and asserted that the instruction fees, drafting fees and attendance fees are not excessive but are justifiably and reasonably taxed according to the relevant circumstances of the matter. In the case of George Mbuguzi and another vs. A.S.Maskini [1980] T.L.R 53, it was held that a decision of a taxing officer will be interfered with by a court only when the court is satisfied that the decision was arrived at upon an application of a wrong principle or wrong consideration. Guided by the above principle, the pertinent issue is therefore whether in Taxation Cause No. 26593 of 2024, the taxing officer exercised her powers injudiciously by acting upon wrong principles or wrong consideration.yM 7 In her ruling, the Taxing Officer stated that the law governing quantum of fees in taxation bill of costs is Advocates Remuneration Order, GN No. 264 of 2015. That Order 41 of the Order governs how bill of cost incurred should be taxed generally. The Taxing Officer stated further that for the purpose of the bill of costs presented before her, the 11th and 8th schedule cover the costs for fees prayed by the applicant. The Taxing Officer went on to held thus; "..In item for instruction fee of the advocate, I tax it under item 1 (m)(ii) of the 11th schedule which provides for fees to present the case, the taxing officer shall charge 5,000,000/=. I therefore tax Ally Hassan Namangana, the respondent to pay TZS 5,000,000/=..." Looking at the Taxing Officer's decision, she taxes the respondent under item l(m)(ii) of the 11th Schedule of the Order. However, I have read item l(m)(ii) of the 11th Schedule of the Order and it provide as follows:- (m) For applications, notices of motion or chamber applications, (including appeals from taxation) (i)Un-opposed.............................. 500,000/= (ii)Opposed................................ 1,000,000/= Here, it is clear that the Order provides that the instruction fees for applications which are opposed is TZS 1,000,000/=. The taxation 8 emanates from the Miscellaneous application for extension of time to file a notice of appeal, and it was opposed. Hence it falls under the provisions of 11th Schedule (m)(ii). It is not clear how the Taxing Officer arrived at the amount of TZS 5,000,000/= which she taxed the applicant/respondent at that time. I am aware that Rule 12 of the Advocates Remuneration Order gives discretion to the Taxing Officer to consider or allow costs or charges as it will appear to him/her to be necessary, but the same should show how she/he has arrived to the costs taxed. In this item of instruction fees, I find that it was exaggeratedly high for no any elaborated reasons. I don't agree with the submissions by the counsel for the respondent that the amount of TZS 5,000,000/= was taxed by assessing 3% of the subject matter in Land Case No. 13 of 2016. I disagree with this claim for reasons that first, the Taxing Officer was silent about the basis of her taxing the said amount, and second, the Taxing Officer could not tax by 3% of the subject matter since this was not a taxation proceedings on the costs of the main case but it was for the costs awarded in Application No. 16386 of 2024 whereby the respondent was seeking for extension of time to appeal. It is my finding basing on the above reason that the instruction fee to the tune of TZS 5,000,000/= was awarded on the basis of wrong principle of/ 9 law and facts and it was excessive. I alter the award of TZS 5,000,000/= and adjust it to TZS 1,000,000/=. The applicant also was dissatisfied by the award of TZS 50,000/= for each court attendance. That the amount is high and the applicant claim that on 20/9/2024, when the parties were set to appear before Hon. Luvanda,J, for ruling, the applicant held brief for the counsel of the respondent. That the awarded attendance and drafting fees was exaggerated and not supported by any compelling rationale. The respondent did not dispute the claim that the applicant held the brief of the respondent on 20/9/2025 when the application was for ruling. In the ruling, the Taxing Officer taxed the attending costs under Item 3(a) of the 8th Schedule of the Order. Under Item 3 of the Eighth Schedule, the attendance fee is TZS 50,000/= in ordinary cases. Since this is what is provided by the law, it is my view that the Taxing Master was right to charge the stated amount. However, since both applicant and respondent have agree that on 20/9/2025 the applicant held brief for the respondent then it is clear that on that date the respondent did not attend the court. Therefore, I tax off TZS 50,000/= from the award of TZS 150,000/=which was awarded as attendance fee and adjust it to TZS 100,000/=. On the fees for drafting documents, it is provided under the Eighth schedule at Item 2 that the fee for drawing is TZS 30,000/=. In the bill of io costs, the Taxing Officer awarded TZS 50,000/= per each document. Since the Taxing Officer did not elaborate on how she reached to the awarded amount, I also alter the amount and adjust it to TZS 30,000/= per each awarded document. The disbursement was awarded at TZS 40,000/= and was not contested by the applicant hence I will not touch it. For the foregoing analysis and reasons, the issue on whether the Taxing Officer acted injudiciously is answered in affirmative. The application succeeds and the Taxing Officer's ruling is altered. The award of TZS 5,000,000/= as instruction fees is adjusted to TZS 1,000,000/=, the attendance fee is adjusted to TZS 100,000/=, the fee for drawing documents is adjusted to TZS 30,000/= per each document. The disbursements remain as ruled by the taxing officer. Considering the circumstances of this matter, each party to bear its own costs. ii