COMMERCIAL APPLICATION NO

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL APPLICATION NO. 09316 OF 2024 BAHDELA COMPANY LIMITED ........................................................APPLICANT Versus PETROFUEL (T) LIMITED .............................................................RESPONDENT RULING Date of last order: 1/10/2024 Date of Ruling :25/10/2024 GONZI, J The Applicant is challenging the Taxing officer’s ruling in Taxation Cause No. 129 of 2023, dated 09.02.2024 arising from Commercial Case No. 63 of 2022. The application is preferred by Chamber Summons under Order 7(1) and (2) of the Advocates Remuneration Order, GN No. 263 of 2015 (the Remuneration Order) supported by an affidavit of the applicant’s Advocate Mr. Samson Edward Mbamba. According to Applicant’s affidavit the Respondent filed a bill of costs in Taxation Cause No. 129 of 2023 originating from Commercial Case No. 63 of 1 2022 and was awarded TZS. 41,121,820/= as per Annexture B to the affidavit. Aggrieved by the decision of the Taxing Officer, the Applicant has advanced two reasons in challenging the decision. Firstly, that the Hon Taxing master improperly exercised her discretion as she did not take into account the necessary principles, hence awarded huge sums of costs. Secondly, the Judgment was exparte thus the proceedings were not complex and did not involve more than one witness as to attract a colossal sum of awarded costs. On 26/08/2024, the Court directed the partied to argue the matter by way of written submissions. The Applicant was represented by Messrs. Samson Edward Mbamba and Godwin Mussa Mwapongo, Learned Advocates. On the other hand, the Respondent enjoyed the service of Mr. Stephen Mosha, Learned Advocate. The learned advocates for the Applicants submitted with regard to the first ground that it is a principle of law that the decision of any judicial body exercising discretion can be annulled if there is an improper exercise of such discretion. They made reference to the case of Abdi Saleh Vs. Asac Care 2 Unit, Civil Revision No. 3 of 2012 (unreported) where the Court of Appeal observed at page 7 that: “As the predecessor Court of Appeal for East Africa aptly put it in MBOGO AND ANOTHER V SHAH (1968) EA. 93, a superior court could only interfere with the exercise of discretion by an inferior court if: 1. It has misdirected itself; or 2. It has acted on matters on which it should not have acted or 3. It has failed to take into consideration matters which it should have taken into consideration; and in doing so; arrived at a wrong conclusion” They submitted that one of the mandatory requirements in the exercise of discretion is the need to show reasons for any decision. They submitted that the Honourable Taxing Officer awarded TZS. 26,801,820/= as instruction fees without showing reasons and that she cited item 8 of the 9th schedule to the Advocates remuneration order. They referred to the case of Hotel Travertine Ltd Vs. National Bank of Commerce, Taxation Civil Reference No. 9 of 2006, (unreported) which 3 is to the effect that notwithstanding the provision providing for a scale, still the award of instruction fees is in the discretion of the Taxing Master. They argued that the Taxing Master ought to have shown reasons why she had exercised the discretion to award TZS. 26,801,820 as instruction fees contending that it was not enough to cite the provision of the law she cited because she had the discretion to award lesser amount than as per the scale. Submitting further, they argued that the Taxing Master awarded a Total of TZS. 1,600,000/= as attendance costs. However, she did not give reasons for the exercise of the discretion to that end. They argued further that the Taxing Officer further awarded TZS. 10,470,000/= being the filing fees paid to the Court whilst that amount of filing fees followed a suit for an exaggerated claim of TZS. 4,046,696,990/= allegedly being the outstanding and un-paid price of fuel; only to be awarded TZS. 893,394,000/= by the court as the decretal sum. They submitted that if the respondent had not exaggerated the suit amount, the Taxing Officer could not have awarded such colossal sum of money as filing fees. The concluded that there was an improper awarding of the filing fees on the exaggerated sum, more so 4 without showing reasons for the decision. Hence, they faulted the decision of the Taxing Officer. Referring to the case of Yusuph Mpini & 2 others Vs. Juma Y. Mkinga & 2 others, Civil Appeal No. 1 of 2017 (unreported), the High Court (as per Hon. Masabo, J.,) observed at page 4 thereof while quoting Geofields Tanzania Limited Vs. Maliasili Resources Ltd & others, (Misc. Commercial Cause No. 323 of 2015) [2016] TZHC COM D 8, thus: “Generally, costs are awarded not as a punishment of the defeated party but as a recompense to the successful party for the expenses to which he had been subjected or for whatever appears to the court to be the legal expenses incurred by the party against the expenses incurred by the party in prosecuting his suit or his defence. Costs are thus in the nature of incidental damages allowed to indemnify a party against the expense of successfully vindicating his rights in court and consequently the party to blame pays cost to the party without fault”. 5 The Learned Counsel for the Applicant concluded their submissions and prayed that the decision of the Taxing Officer be quashed and set aside with costs. Mr. Stephan Mosha, Learned Advocate for the respondent, submitted that the allowance for instruction fees is a matter peculiarly in the Taxing Officer's discretion and that courts are reluctant to interfere with that discretion unless it has been exercised injudiciously. He cited Order 12 (1) (2) of the Advocates Remuneration Order, GN. No. 263 of 2015, which states as follows: “12.-(1) The taxing officer may allow such costs, charges and expenses as authorized in this Order or appear to him to be necessary or proper for the attainment of justice. (2) The taxing officer shall not allow, any costs incurred or increased through over-caution, negligence or mistake, or by payment of special charges or expenses to witnesses or other persons.” On the issue of instruction fees, Mr. Mosha, Learned Advocate, submitted that as per the Taxing Master’s reasoning, the instruction fee was 6 rightly calculated based on the awarded amount of TZS. 893,394,000, not the inflated claim, thus the Taxing Master properly exercised discretion by adhering to the guidelines set forth in the item 8 of the Ninth Schedule of the Advocates Remuneration Order, GN. No. 263 of 2015. He argued that the said provision provides that for the amount over TZS. 400,000,000, the instruction fees will be calculated at 3 percent thereof. Mr. Mosha, submitted that the Advocates Remuneration Order, GN. No. 263 of 2015, specifically the Ninth Schedule, provides that instruction fees should reflect the actual amount in dispute. Thus, the Taxing Master's decision to tax the instruction fee at TZS. 26,801,820 as 3 percent of TZS. 893,394,000, was reasonable. On the attendance costs awarded, Mr. Mosha, Learned Advocate, submitted that the Taxing Master made a fair assessment considering the nature of the proceedings. The attendance costs awarded were reasonable given that many hearings lasted less than the estimated time that would justify higher charges. On the issue of filing fees being disproportionately based on the exaggerated claims, Mr. Mosha, Learned Advocate, submitted that the 7 court's responsibility is to award costs based on the procedural requirements rather than the merit of the claim itself. Mr. Mosha, Learned Advocate, submitted that the fees were legitimately incurred in the course of pursuing the claim, which was ultimately decided by the court. Mr. Mosha, Learned Advocate, submitted that that the cited case law does not support the claim that discretion was exercised improperly rather affirms that the Taxing Master acted within her mandate. Mr. Mosha, Learned Advocate, submitted on the basis of the decision in Yusuph Mpini & 2 Others Vs. Juma Y. Mkinga & 2 Others. & 2 Others, Civil Appeal No. 1 Of 2017, that the essence of judicial discretion is that it may not be overturned unless there is clear evidence of improper exercise. He argued that the Applicant has not demonstrated such impropriety on the part of the Taxing Officer. Mr. Mosha, Learned Advocate, reiterated that the Taxing Master’s ruling was not only well-reasoned but also consistent with the applicable laws governing taxation of costs. He prayed that the applicant’s application for reference be dismissed in its entirety with costs. 8 In their Rejoinder submissions, the Learned Counsel for the Applicant reiterated that in the present case apart from applying the scale, the taxing master awarded the scale rate without reasons as to why she had decided not to consider a “number of factors”, not only the statutory scales, thus improperly referring to Yusuph Mpini Case (Supra). After going through the rival submissions by the Learned Counsel for both sides, in my view the issues in this case are very narrow and straight forward hence calling for a brief de and swift determination thereof. There are three main areas in contention in this case and my determination will go along that line. The first area in contention is with regard to in instruction fees. The Applicant submitted that submitted that the Honourable Taxing Officer awarded TZS. 26,801,820/= as instruction fees without showing reasons. I find that this ground of complaint does not hold water. Reading through the impugned ruling, the Taxing Officer clearly gave explanation or reasons for her decision at page 4 thereof that the instruction fees was being awarded on the basis of the Awarded sum of TZS. 893,394,000/= instead of TZS. 9 4,046,696,990/= which had been claimed. The complaint of the Taxing Officer giving no reason, is thus unjustifiable. The second area of contention is on attendance fees. The Applicant argued that the Taxing Officer awarded a Total of TZS. 1,600,000/= as attendance costs. However, she did not give reasons for the exercise of the discretion to that end. This ground also does not hold water as it is defeated by the available records. At page 4 of the Taxing Officer’s Ruling in the second paragraph, the Taxing Officer has explained how she awarded the TZS. 1,600,000/= as attendance fees. It is clearly shown and explained that the Taxing Officer awarded TZS. 200,000/= per each day of attendance in court for 8 dates under items 17,18,19,20,21,22,23 and 24 of the Bill of costs. Hence the 8 dates were each taxed at TZS. 200,000/= hence making up TZS. 1,600,000/=. That is the reasoning and explanation of the Taxing Officer for arriving at the attendance fees of TZS. 1,600,000/=. In this regard, I find that the Taxing officer acted judiciously. The other area of complaint was on the amount taxed as filing fees. The Applicant complained that the filing fees were charged at a higher amount since it was assessed on the basis of the amount contained in the Plaint and not the final awarded amount granted in the decree at the end of 10 the case. This ground is unreasonable and does not hold water. The Taxing Officer under page 4 in the third paragraph explains how she ended up awarding the filing fees of TZS. 10,470,000/= that is the actual amount the Respondent paid in filing the suit claiming for TZS. 4,046,696,990/=. The Applicant wishes the Filing Fees to be reassessed at the end of the suit and to be taxed on the basis of the awarded decretal sum of TZS. 893,394,000/= rather than the amount on which it was assessed at the beginning of the suit. I do not accept the Applicant’s reasoning because at the time of filing the suit, the awarded decretal amount had not yet determined or ascertained by the court. The filing fees were assessed and actually paid on the basis of the presented claim. Filing fees cannot, practically, be assessed and paid on the basis of the final decretal sum which is yet to be determined, at the time of filing of the suit. I find the argument by the learned counsel for the applicant on this aspect devoid of merits. In the end all the three complaints levelled by the Applicant against the decision of the Taxing Officer fail. As it was submitted herein, in MBOGO AND ANOTHER V SHAH (1968) EA. 93, it was held that a superior court could only interfere with the exercise of discretion by an inferior court if it has misdirected itself; or it has acted on matters on which it should not have acted or it has failed to take into 11 consideration matters which it should have taken into consideration; and in doing so; arrived at a wrong conclusion. Reading through the ruling of the Taxing Officer, I find no grounds for interference with her decision. I therefore dismiss the application for reference with no order as to costs since the Respondent is adequately being reimbursed in the impugned Ruling of the Taxing Officer. The Application is dismissed. Each party to bear its own costs. It is so ordered. A. H. GONZI JUDGE 25/10/2024 Ruling is delivered in court this 25th day of October, 2024 in the presence of Ms. Ritha Mahoo, Advocate for the Respondent also holding brief for Mr. Samson Mbamba, Advocate for the Applicant. A. H. GONZI JUDGE 25/10/2024 12