DALTONE SCANNED

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM REFERENCE NO. 23326 OF 2024 (Arising from the Ruting and Order in High Court Land Division at Dar es Salaam in Taxation Cause No. 11943 of2023 as per Honourable Lukindo, Deputy Registrar delivered on 29fh day ofAugust2024) DALTONE MAKENE........................................................... APPLICANT VERSUS ALLY BAKARI SEMTUMBI (as an administrator of the estate of the late Bakari Semtumbi)....................................................... RESPONDENT RULING 4h November 2024 & 6th December 2024 L, HEMED, J. This is an application for reference. It has been brought under rule 7(1) and (2) of the Advocates Remuneration Order of 2015, GN. No. 264 of 2015. The Applicant one DALTONE MAKENE was aggrieved by the ruling of the Taxing Officer in Taxation Cause No. 11943 of 2023 in which the herein Respondent, ALLY BAKARI SEMTUMBI (administrator of the estate of the late Bakari Semtumbi) was awarded the amount of TZS 1,900,000/= out of the amount of TZS 31,300,000/= charged in the Bill of i costs. In the chamber summons, the Applicant presented the following prayers: - '7, That the Honourable Court by way of reference go through the decision of Hon. Lukindo, Deputy Registrar dated 29h day ofAugust 2024 in Taxation Cause No. 11943 of2024 and be pleased to vary the same in the following grounds. (a) That the Taxing officer having taxed off/disallowed more than one sixth total of the amount of bill of costs exclusive of court fees claimed by the Respondent, the Respondent was not entitled to the costs of such taxation; (b) That, the grant of costs was not factually and legally backed up; 2. Costs of the Application be borne by the Respondent." The application has been supported by the affidavit of one Cleophas Manyangu, advocate of the Applicant. The Respondent resisted it through the counter affidavit of Ali Bakari Semtumbi. On top of that, the advocate of the Respondent lodged a notice of preliminary objection in /imine //tethus: - 2 ’7. That the application is bad in law for containing extraneus matters eg. Arguments (legal and extraneous factual), belief, prayers and opinions and conclusions." On 4th November 2024, when the matter was called for necessary orders, I directed parties to argue both the preliminary objection and the application simultaneously by way of written submissions. Mr. Cleophas Manyangu, learned advocate, acted for the Applicant while the Respondent enjoyed the legal service of Ms. Gloria Ulomy, learned advocate. As a matter of principle, I am obliged to start with the preliminary objection. According to the filing schedule, the submission in chief in regard to the preliminary objection ought to have been filed on or before 11th November, 2024 reply thereto was to be filed by 19th November, 2024 and rejoinder if any by 27th November 2024. On 29th November, 2024,1 perused the electronic file and the physical files but I could not find submissions inchief filed by the Respondent to support the preliminary objection. Having found no submission in chief to substantiate the preliminary objection, I became convinced that the Respondent opted to abandon the preliminary objection. This being the 3 case, I have no other options but to dismiss the preliminary objection for want of prosecution. Back to the merit of the application, the learned advocate of the Applicant has asserted that the Respondent herein was not entitled to the costs after the taxing officer having disallowed more then one sixth of the total amount of the Bill of Costs excluding court fees. The learned counsel cited Order 48 of the Advocates Remuneration Order, GN No. 263 of 2015 to substantiate his argument. He submitted that in the Bill of Costs, the Respondent claimed TZS 31,300,000/= as costs incurred in the prosecution of Land Appeal No. 365 of 2023. The Taxing Officer awarded only TZS 1,990,000/= to the Respondent. He was of the view that since more than 98% of the total bill was disallowed, it implies that the claimed bill of costs was excessive. In his view the Respondent was not entitled to the bill of costs. Reliance was put on the decisions of this court in Elizabeth Tito and Another vs Agnes Erasto Malungwa, Civil Reference No. 6 of 2022 and in Asha Ali Omary vs Audax Rweyemamu Kamuhabwa and two Others, Reference No. 10895 of 2024. 4 In response thereto the learned counsel for the Respondent contended that the amount taxed which led to the application at hand was not satisfactory to the Respondent too. According to her the amount taxed was too low comparing to what the taxation cause prayed in the Bill of Costs No. 11943 of 2023. The learned counsel prayed that the same should be re-checked at the time of making ruling of this reference. It was argued further that, the act of the Taxing Officer to grant TZS 1, 990,000/= out of TZS 31,300,000/= claimed by the Decree holder has never been justifiable. She was of the request that the amount of TZS 31,300,000/= be reconsidered. Having gone through the submissions filed by both parties, the question for determination is whether the application is meritorious. Before delving into the merit of the application, let me address the point which the Respondent has raised in the submissions in reply that the court should reconsider raising the amount awarded. According to the counsel for the Respondent, the amount taxed or awarded is too low and that the court should reconsider of awarding the whole amount of TZS 31,300,000/= as was charged in the Bill of Costs. 5 In applications like the one at hand, the court is bound to determine only the prayers sought in the chamber summons. The affidavits deponed for or against the application must be confined to support the prayers sought or to oppose them. Like wise the submissions in respect to the application must be geared at addressing for or against the prayers sought. Any fact deponed or argued beyond the prayers sought, is at stake of being disregarded. In the instant matter the Respondent has raised prayers in the reply submissions that the court should reconsider of awarding the amount of TZS 31,300,000/=. The said prayer is not founded on the application which parties were supposed to argue for or against, neither it is founded on the affidavits. It rather, emanated from the bar and thus worth to be ignored. The Applicant seeks for the court to find that the Respondent was not entitled to the costs after more than one sixth of the total amount of costs being disallowed. I have noted from the records of Taxation Cause No. 11943 of 2023 that, the Respondent had claimed the amount of TZS 31,300,000/= as the total costs. However, the Taxing Officer, awarded only TZS 1,900,000/=. Order 48 of the Advocates Remuneration 6 Order (supra) discourages excessive claims in the Bill of Costs. It provides thus: "48. When more than one-sixth of the total amount of a bill of costs exclusive of court fees is disallowed, the party presenting the bill for taxation shall not be entitled to the costs of such taxation. Provided that, at the discretion of the taxing officer any instruction fee claimed, may be disregarded in the computation of the amount taxed of that fee in the computation of the one-sixth." In the instant matter, the Respondent had claimed a total of TZS 31,300,000/= being the summation of TZS 30,000,000/= as instruction fees, TZS 900,000/= as court attendance; and TZS 40,000/= being disbursement. However, the taxing officer awarded TZS 1,000,000/= as instruction fee; TZS 450,000/= for court attendance and TZS 40,000/= as court fees. Generally, as aforesaid, the Respondent was granted the amount of TZS 1,900,000/= as costs incurred in prosecuting Land Appeal No. 365 of 2023. The one-sixth of TZS 31,300,000/= excluding court fees can be expressed numerically as follows: - 7 = 1/6 x (31,300,000 - 40,000) = 1/6 (31,000,000 - 40,000) = 1/6 x 31,260,000 = 5,210,000.001042 The question is, did the amount which the taxing officer disallowed exceeded TZS 5,210,000.001042 = 5,210,000/=? From the record, it is evident that out of TZS 31,260,000/= the Respondent was awarded only TZS 1,900,000/=, meaning that the amount of TZS 29,360,000/= was taxed of/disallowed which is greater than TZS 5,210,000/=. In view of the foregoing, it is unequivocally clear that more than one sixth of the total amount of bill of costs exclusive of court fees claimed by the Respondent was disallowed. In that regard the Respondent was not entitled to the costs of such taxation. In the upshot, application is granted without costs. Order accordingly. DATED at DAR ES SALAAM this-6’1' December, 2024.