BENEDICT NTASI MWAKAGILA VS DERICK JOHAN LWINGA RULING

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MBEYA SUB – REGISTRY)

AT MBEYA LAND REFERENCE NO.13820 OF 2024 BENEDICT NTASI MWAKAGILA ……………………………..APPLICANT

VERSUS DERICK JOHAN LWINGA……………………………..…….RESPONDENT

RULING 03rd September & 30th October 2024 TIGANGA, J. Under Order 7 (1) and (2) of the Advocate Remuneration Order GN. 264 of 2015, the applicant moved this court by way of reference, to call, inspect, and determine the reference arising from the ruling in Bill of Costs No.2304 of 2024, J. Lyimo, Deputy Registrar, Taxing Officer, dated 17th May 2024, by quashing and setting aside the said ruling. He also asks for costs and any other relief that the court deems fit to grant. The application is by chamber summons supported by the affidavit sworn and filed by the applicant. In the affidavit, particularly in paragraph 4, the applicant complained that the claimed amount in the Bill of Costs was TZS. 1,580,000/=, but the amount taxed is TZS. 280,000/=. He said the total of TZS.100,000/= instruction fees was denied. Also, TZS.1,000,000/= as the costs for drafting legal documents were denied without justification and the same is contrary to the law. Lastly, TZS. 60,000/= which was the cost for prosecuting the Bill of Costs was awarded very law contrary to the principle governing taxation of costs. In the end, he asked the court to re-examine the Bill of Costs taxed and uplift the amount taxed to a better sum than the one taxed. The application was opposed by the respondent by filing the counter affidavit of Derick Jonas Lwinga the respondent. In essence, he deposed that all the amounts

that were denied were not proved by substantive evidence, like the receipt. and that the amount awarded is reasonable in the circumstances of the case. With leave of the court and consent of the parties, the application was argued by way of written submissions. In the submission filed in support of the application the applicant adopted the affidavit filed in support of the application. He said the Taxing Officer acted contrary to section 58(1) of the Advocate Remuneration Order 2015, for the cost of drafting documents which is TZS 1,000,000/=, because he himself could not draw legal document, that means he engaged a lawyer and paid him. He also said he appeared in court file times on 13/03/2024, 27/03/2024, 08/04/2024, 15/04/2024 and 17/05/2024. He also said that the amount to serve summons to Mbalizi was also not considered, he asked the court to increase the amount from TZS.60,000/= to TZS 300,000/= for the interest of Justice. He reminded the court the principle that in civil litigation the succeful party must be re-imbursed of the costs he spent. In reply the respondent was brief that Regarding the claim he submitted, he did not prove the same before the Taxing Master, he could therefore not be granted the amount of 100,000/=, TZS 1,000,000/= and 300,000/= because he did not substantiate it with receipt or any other evidence. In rejoinder, he insisted that under Rule 58(1)

of the Rules, he was entitled to 1,000,000/=, and all other costs he claims before this court. If is the general rule that whoever becomes a victorias civil litigation that he must be re-imbursed the costs he spent in prosecuting or defending the case. However, for the party to be entitled he must as a matter of fact, prove that, he actually spent the amount he claim, and that the amount so claimed should not exceeds the statutory limit put by law. For example, if a person claim to have engaged an Advocate, he should to the best prove that he actually hired the Advocate to do the job. The costs for which the Bill was filed was of Land Appeal No.56 of 2023, and the Bill of Costs filed was in Bill of Costs No.2304 of 2024 where Hon. J. Lyimo, Taxing Officer in the Ruling dated 17/05/2024 an page 4, she said upon a thorough perusal of the record, she found that in the land appeal, the applicant appeared in person and all the document speaks themselves that the same were drafted by himself, therefore it was her finding that the claim in the Bill of costs seems to be exaggerated. Further to that, in all other items which were either not taxed (refused) or taxed at a low costs were not proved. If is a law, under sections 110 and 111 of the Evidence Act Cap 6 RE 2022, that, whoever alleges, and require the court to find in his favour has a duly to prove that this allegation is time

and the court should find in his favour. This duty is in normal, civil case and the application like one at hand. In the case before the taxing master and the reference before this court no attempt was made to prove not only that the applicant paid the Advocate (so prove by receipt), but also that he engaged him (by engagement letter for her to be paid, the amount claimed. The court was blamed so have failed to act in assumption that since the applicant is a lay person, and could not draft the court document, therefore he must have engaged an Advocate to do the job for him. It should be noted that the law I have cited above impose a duty, to the applicant, and it will be dangerous for the court at any stage and grade to act an assumption as it will be stepping out of the position of an empire and chose to be an Advocate of the party. I am aware that the schedule to the Advocate Remuneration order provide the fixed amount of instruction fees in countetious and non contetials application or matters, it should be noted that the amount is for instruction fees, that means even if the Advocate fails to prove by receipts, he should at least prove that he actually engaged an Advocate to do the job. Something which can be proved by an instruction letter. That said. I find, the applicant to have failed to prove before the taxing master that, he was entitled to the amount he claimed. Since he failed to prove before the faxing master then the taxing master was justified to award what she awarded, and there is nothing to fault from what she decided. That said, this application is found to be devoid of merit, it is thus dismissed for wants of merit, with costs. It is so ordered. DATED and delivered at Mbeya on 30th October, 2024. J. C. TIGANGA

JUDGE