RULING OF CATHERINE AMBAKISYE

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY AT MBEYA LAND REFERENCE NO. 6 OF 2023 (From bill of costs No. 28 of 2022 of the high court of Tanzania at Mbeya) CATHERINE O. AMBAKISYE ……………………………………………APPLICANT VERSUS MARIA SYANGYOMBO ………………………………………………. RESPONDENT RULING Date of hearing: 3/4/2024 Date of ruling: 30/4/2024 NONGWA, J. The applicant has filed this reference seeking to overturn the decision of the taxing officer in Bill of Costs No. 28 of 2022 of the high court of Tanzania at Mbeya. The court is moved under order 7(1)(2) of the Advocate Remuneration Orders, 2015, supported by the affidavit of Mr. Pacence Yonatas Maumba, advocate for the applicant. The respondent filed counter affidavit to resist the application. Facts of the case is simple, it started when the applicant filed Misc. Land Application No. 107 of 2021 in this court for order of temporary injunction, the said application was struck out with cost on 18th May 2022. 1 The result prompted the respondent to file bill of Cost No. 28 of 2022. It is deposed that bill of costs consisted of paragraphs which shown that consultation and instruction fess were paid to the advocate before Misc. Land Application No. 107 of 2021 being filed in this court. That although those items were challenged by the applicant but the taxing master ruled that what matters was the amount and not date the transaction took place. It is that decision which has given rise of this reference, the applicant wants this court to examine the legality of ruling of the taxing master to see if it was proper to tax items which shown that costs were incurred before filing Misc. Land Application No. 107 of 2021. When the matter was called for hearing the applicant was represented by Mr. Pacence Maumba, learned advocate while the respondent had the service of Ibrahim Athuman, also learned advocate. By consensus of counsels indorsed by the court hearing of the reference took the form of written submission. In his submission Mr. Maumba gave the chronological events in Misc. Land Application No. 107 of 2021 from its filing to disposal. He argued that item 1 and 2 of bill of costs which is for consultation and instruction fee shown that the transaction took place on 30th November, 2021 and 1st December 2021 before Misc. Land Application No. 107 of 2021 being filed in court, that is 13th December 2021. That he challenged 2 those paragraphs that it was impossible for advocate to have rendered consultation and instruction while there was no case in court but he was astonished that argument was not considered on the pretext that date was not important rather whether the amount indicated was charged. Mr. Maumba stated that pleadings must relate to events to what actually took place and the court is also bound by what is pleaded by parties. In support of the preposition article by Sir Jack I. H. Jacob titled “the present importance of pleadings” and the case of Barclays Bank (T) Ltd vs Jacob Muro, Civil Appeal No. 357 of 209 was referred. Counsel for the applicant added that item 3 was taxed off on ground that no event took place on that date but the like items 1 and 2 was retained. From the above prayed ruling of the taxing master to be overturned with costs. Replying to the applicant’s counsel argument, Mr. Ibrahim was in favour of the taxing master decision, he contended that items 1 and 2 was correctly charged according to item 12 of the 12th schedule and m (ii) of the 11th schedule to the Advocate Remuneration Order. He said that the agreement was between the respondent and his advocate, and counsel for the applicant could not choose when they were supposed to enter in that agreement. 3 It was further argument that the discretion of taxing master was in accordance with taxing principles as articulated in the case of Tanzania Rent a Cat Limited vs Peter Kimuhu, Civil Reference No. 9 of 2020. The case of Barclays cited by the applicant’s counsel was distinguished in that at hand there was no dispute that advocate was instructed in Misc. Land Application No. 107 of 2021. Given the above, the respondent’s counsel beseeched the court to find the reference has no merits with costs. I have considered the reference documents together with rival submission of counsels. From arguments of parties the issue for my resolution has been narrowed to whether it was proper to allow and tax items which indicated the transaction happen before filing of the case in court. This is so owing to the fact that, there is no dispute that the respondent instructed advocate to defend Misc. Land Application No. 107 of 2021. The items under contention are consultation and instruction fees, it is undisputed that the date as indicated in the bill of costs show that consultation was rendered to the respondent on 30th December 2021 and given instruction to defend Misc. Land Application No. 107 of 2021 on 1st December 2021, however the matter in which counsel rendered such advice and instruction was filed in court on 13th December 2021. 4 According to the advocate remuneration order, bill of cost has to be drawn as per order 55, it provides; (1) Bills of costs shall show the case and title of the name concerned and shall be prepared in five columns, as follows- (a) the first or left-hand column for dates showing year, month and days; (b) the second for the number of items; (c) the third for the particulars of the service charged for; (d) the fourth for the professional charges; and (e) the fifth for the taxing officer's deduction.’ It is mandatory that bill of costs must be in the manner prescribed by law, of important, bill of cost must have a column showing year, month and day for the obvious reason that for the taxing officer must to ascertain whether certain business was transacted on that date. Mr. Maumba’s argument is that, it was not proper to tax item which there was no any business in court and particular even before the case was filed in court. I have perused the ruling of the taxing officer and found that in tackling the above argument, the taxing officer held that; ‘I must say that Mr. Maumba’s reasoning is logical. However, I think as regards items one and two what matters is not date. Rather, it is the amount charges. In other words, the issue is 5 whether the amount under these items have been charged in accordance with the requirements of the law …’ This is what counsel for the applicant is complaining, however, has not stated if there was any divergence from the taxation principles. A millions of questions came into my mind as to how one would have be rendered advice on the matter before its happening, how could one get instruction to defend the matter in court which was not yet filed, what is the purpose of showing dates in the bill of costs, what is the effect of not indicating a correct date and what is the purpose of filing bill of costs. I could not get answers to each and every question which clicked into my mind but at the end, I stick in the last question, the purpose behind filling bill of costs. In Masolele General Agencies vs African Inland Church Tanzania [1994] TLR 192 (CA) the court stated; ‘A bill of costs is nothing more than tabulated costs incurred by a party in the conduct of the case and which he seeks to be reimbursed by the other party.’ With that law, I find the taxing master was justified in allowing item 1 and 2 of the bill of cost, this is so because the respondent instructed advocate to defend her in Misc. Land Application No. 107 of 2021 and therefore fees was paid to advocate. Disallowing costs which it is not disputed and the respondent incurred on reason that it indicated a 6 different date would be contrary to dictates of Article 107A(2)(e) of the Constitution of the United Republic of Tanzania, 1977 and the overriding objective principles which is now part of our laws which obliges court to stick on substantive justice as opposes to technicalities. At the end, I find no reason to fault the decision of the taxing master. This reference is dismissed with costs. DATED at MBEYA this 30th day of April 2024 V.M. NONGWA JUDGE 30/4/2024 DATED and DELIVERED at MBEYA this 30th day of April, 2024 in absence of the parties and presence of Ms. Leah Kasanga Advocate holding brief of Respondent. V.M. NONGWA JUDGE 7