RULING Benjamin Simkoko vs

THE UNITED REPUBLIC OF TANZANIA JUDICIARY THE HIGH COURT OF TANZANIA (MBEYA SUB-REGISTRY) AT MBEYA CIVIL REFERENCE NO. 28647 OF 2023 (Arising from Taxation Cause No. 1B of 2023 of the District Land and Housing Tribunal for Mbeya at Mbeya) BENJAMIN SIMKOKO (Administrator of Estate of the Late Stephano Yolinda Simkoko) ...……..…………………… APPLICANT VERSUS CHRISTANTUS SIMKOKO ………………………………….……. 1ST RESPONDENT FRODESTER SIMKOKO ……………………………….…………. 2ND RESPONDENT DAVID SIMKOKO ………….……………………………...………. 3RD RESPONDENT AWADHI MUYOMBE …………………………………...…………. 4TH RESPONDENT MAVUMBI SIMKOKO …………………………………………..…. 5TH RESPONDENT IMAN LAURENT SIMKOKO ………………………..……………. 6TH RESPONDENT RULING Date of last Order: 1st August, 2024 Date of Ruling: 28th August, 2024 KAWISHE, J.: The applicant herein above named, filed this application calling upon this court to intervene, peruse, quash and set aside the ruling of the Taxing Officer in Taxation Cause No. 1B of 2023 dated on the 06th day of December 2023. Page 1 of 11 The application is pegged under the provisions of Order 7 (1) and (2) of the Advocates Remuneration Order, 2015 G.N. 264 of 2015. The respondents resisted the application by filing a joint counter affidavit sworn by themselves. Briefly the background to this application is that: Before the District Land and Housing Tribunal for Mbeya at Mbeya the applicant via Application No. 1 of 2021, sued the respondents claiming for ownership of the disputed land. Upon full trial, the application was dismissed for lack of merit and the applicant was ordered to pay the costs. It is from the order that the applicant must pay the costs, the respondents filed Taxation Cause No. 1B of 2023, which resulted into the instant application, the subject of this ruling. It is important to note that, the bill of costs in the Taxation Cause No. 1B of 2023 as it was presented before the Taxing Officer stood at TZS. 15,312,000.00. However, on 06th day of December 2023, the Taxing Officer ruled that, the respondents must be paid only TZS. 5,532,000/=. Dissatisfied with the decision of the Taxing Officer, the applicant filed an application for reference before this court on the following grounds: i. The Taxing Officer failed to address important legal issue raised by the applicant (judgment debtor) in his written submission, that the bill of costs Page 2 of 11 filed by Advocate for the Decree holders violated Order 55(1) of the Advocates Remuneration Order, GN. 264 of 2015, hence the applicant was denied the right to be heard. ii. The amount of TZS. 5,532,000.00, which was awarded by the Taxing Officer is so general, hence it prejudiced the applicant to know as to which item was taxed and to what amount. iii. That, there was no justification in awarding TZS. 5,532,000.00. iv. That, the order for execution issued by the Taxing Officer was misconceived as there was no any application for execution made by the respondents. At the hearing of this application, the applicant appeared in person whereas the respondents were represented by Ms. Beatrice Aloyce Rukamilwa, learned advocate. Whereas, by the parties’ consent the application was disposed of by way of written submissions. In his submission, the applicant argued that, before the hearing of the application the applicant raised a point of preliminary objection. That instead of addressing the legal point, the Taxing Officer proceeded to decide the application which is contrary to the procedural law. He submitted that, the law is clear that, where a point of law arises, the court must first determine that issue before dealing with other issues. He argued further that, even the decision given by the Taxing Officer in the bill of costs never addressed on the points of law which was raised before the hearing of the application. He further submitted that, the Bill of Costs which was filed by the counsel for the Decree Holders violated Order 55(1) of the Advocates Page 3 of 11 Remuneration Order, G.N. 264 of 2015. That he was denied the right to be heard on the ground that the format which was used in drafting the bill of costs violated the law. He implored this court to strike out the bill of costs for failure to observe the mandatory format set out under the law. In relation to the second ground, he submitted that, the amount of TZS. 5,532,000/= which was awarded by the Taxing Officer is so general and makes the applicant not to know exactly which item was taxed and to what amount. Thus, he prayed for this court to quash the Taxing Officer’s ruling. In respect of the third ground of complaint, it is the applicant’s submission that, in awarding TZS. 5,532,000.00, the Taxing Officer failed to give reason thereto. To buttress his argument, he cited the case of Nemes Ngowi vs. Juliana Martin, Land Reference No. 02 of 2019 (unreported). As to the fourth ground of complaint, the applicant submitted that, an order for execution issued by the Taxing Officer was misconceived since there was no any application for execution made by the respondents. He added that, the Taxing Officer ordered him to pay costs awarded to the respondents within 14 days and ordered the Court Broker (Fagio brockers) to execute the order of selling his property and Page 4 of 11 the execution report to be brought before the trial Tribunal while there was no such application made by the applicant. He prayed for this court to quash the ruling and the order given by the Taxing Officer for being repugnant to the law and the respondents be ordered to pay the costs of this application. In reply, the learned counsel for the respondents argued that, the items and columns as well as particulars of the required items were all inserted in the application for bill of costs as required by the law. She insisted that, there is no any item or column that was skipped despite the customization of the application to insert item or column for clarity before date. Which in her view, does not invalidate the application since it does not go to the root of the merit of the application. She contended that, the Remuneration Order (supra) is not applicable in the instant application. She continued to submit that, the applicant together with the respondents were availed the right to be heard on the aspect of the contents of paragraph 4 (1) of the applicant’s affidavit. She beseeched the Court to dismiss this ground of complaint. Encountering the second ground, Ms. Rukamilwa averred that, there was no mistake done by the Taxing Officer in awarding TZS. 5,532,000.00 as costs of the suit. She added that, the case of Nemes Ngowi vs. Juliana Martin (supra) is not applicable in the Page 5 of 11 circumstances of the present case. She prayed for this court to dismiss this ground of complaint for lack of merit. On the third ground, respondents’ counsel retorted that, the Taxing Officer clearly justified why he awarded TZS. 5,532,000.00 to the respondents. Disproving the fourth ground, the counsel for the respondents vehemently disputed the allegation raised by the applicant that, the Taxing Officer issued an execution order. She argued that, there was no execution order issued in relation to the bill of costs since the property to be executed was not mentioned in the order complained by the applicant. She further submitted that, the Taxing Officer was right to give an order to the applicant on what will be the consequences of failure to pay the costs to the respondents. Finally, the learned counsel prayed for this application to be dismissed for the reason it is misconceived and baseless. In his rejoinder, the applicant reiterated what was submitted in his submission in chief. He insisted that, the format for the bill of costs has been set out in the Advocates Remuneration Order, 2015, and it is a mandatory requirement for any person preparing the bill of costs to be guided with it. To bolster his stance, he referred the decision of the Court of Appeal in the case of Praygod Mbaga vs. Government of Page 6 of 11 Kenya Criminal Investigation Department & Another, Civil Appeal No. 09 of 2011 (unreported). He added that, in the instant application the principles of overriding objective cannot be applied since there are guiding legal procedures in respect to that issue. Having gone through the submissions made by the parties and original records of the District Land and Housing Tribunal for Mbeya. I find the main issue to be determined in this application is whether this application has merits or not. To answer this issue, it is imperative to address the grounds of complaint one after another. Digesting on the first ground, that the bill of costs filed by the counsel for the respondents violated Order 55(1) of the Advocates Remuneration Order for being prepared without adhering to the format provided therein. Also, the applicant complained that the Taxing Officer failed to address the point of law raised by the applicant in reply to the application for bill costs that, it offended Order 55(1) of the Advocates Remuneration Order. On her part, the respondents’ counsel defaulted the claim of undetermined point of law raised by stating generally that, the parties were afforded the right to be heard. As stated by the applicant, it is a principle that, when there is an objection, the court has to determine it before proceeding with the main suit. This has been the stance of this court and it has stated in various Page 7 of 11 court decision. See the decision of this court in Rukia Ruhaza Bhulilo (as the Administratrix of the Estate of the Late Cornelius Bukuru Lulikela) vs. Zaituni Said & Other, Land Case No. 32 of 2021 and Anastro Nkobela vs. Melina Mwasonda & Another, Land Appeal No. 794 of 2024 (both unreported). Therefore, the Taxing Officer was duty bound to dispose the preliminary objection raised by the applicant before determining the application for bill of costs. In determining the second ground of complaint, at the outset, I wish to state the legal position that, in determine the bill of costs the Taxing Officer was ought to have addressed each item in taxation cause in order to help the parties to know on how he reached such taxed amount. It must also be noted that, Taxing Officers should state in detail the reasons which led him to such a conclusion. At present matter before this court, the Taxing Officer silently taxed the items placed before him. From the decision made by the Taxing Officer, I find there is no reason given by the Taxing Officer in awarding TZS. 5,532,000.00 as taxed amount to the respondents. The bill of costs had almost 28 items but in his ruling, he just determined the costs for instructions fee for prosecute the Bill of Costs No. 1B of 2023 and defending Application No. 1 of 2021 and transport costs for the respondents to appear before the Page 8 of 11 trial Tribunal. Also, the Taxing Officer in his ruling failed to describe which item were taxed and to what extent. Therefore, I find out that the second ground is merited Coming to the third ground of complaint, I find there is no need to detain more time discussing on that ground. From what I have stated above in the second ground of complaint, there was no reason assigned by the applicant in awarding TZS. 5,532,000. In that regard, I concur with the applicant and find this ground of complaint has merit. On the fourth ground of complaint, the applicant in this ground faulted the order dated 11th day of December 2023 for the reason that, the Taxing Officer issued an order for the Court Broker to sell the applicant’s property while there was no an application for execution made before him. Thus, he prayed for this court to set aside and quash the ruling and order of the Taxing Officer in Taxation Cause No. 1B of 2023 of the District Land and Housing Tribunal for Mbeya dated 06th day of December 2023. I have gone through the impugned order and observed that, there is nowhere the respondent prayed for an order for execution. The respondents’ counsel defended the order of the Taxing Officer that it was just informing the applicant the implication which would follow if he defaults in paying the money. I am not convinced with her submission. I Page 9 of 11 hold so as the award is clearly silent on such prayer but the order instructs Fagio Brokers to implement the order: I quote; “Fagio Brokers watekeleze amri hii.” Given the fact that, there was no application for execution, I find it to be extraneous. In the case of Melchiades John Mwenda vs. Gizelle Mbaga (Administratrix of the Estate of John Japhet Mbaga - Deceased) & 2 Others, Civil Appeal No. 57 of 2018, the court had this to say: “It is elementary law which is settled in our jurisdiction that the court will grant only the relief which has been prayed for. “ Also, see the decision in the case of James Funke Gwagilo vs. Attorney General [2004] T. L. R 161 and Hotel Travertine Limited & 2 Others National Bank of Commerce [2006] T.L.R 1. Therefore, I find there was no basis of issuing an order as the Taxing Officer did in absence of any application, consequently, that order was made suo motto. Therefore, the fourth ground has merit. From the foregoing, the Taxing Officer failed to describe on how he determined each item in the bill of costs. In the upshot, I remit file back to the Taxing Officer to be taxed afresh, determined and state how much he has taxed in each item and assign reasons unto his decision. The application is allowed. Each party to bear its own costs. Right of appeal explained. Page 10 of 11 DATED and DELIVERED at MBEYA this 28th day of August, 2024. E. L. KAWISHE JUDGE Court: Ruling delivered virtually before the Mr. Benjamin Simkoko the applicant and before the 1st respondent, Christantus Simkoko and the 4th respondent, Awadhi Muyombe. E. L. KAWISHE JUDGE 28/8/2024 Page 11 of 11