david livingstone memorial and bagamoyo zoological society park ltd vs dodsal hydrocarbons and power t pvt ltd 2021 tzhclandd 6941 18 november 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM CIVIL REFERENCE NO. 18 OF 2020 (Arising from Biii ofCosts No. 10 of2020) DR DAVID LIVINGSTONE MEMORIAL AND BAGAMOYO ZOOLOGICAL SOCIETY PARK LIMITED APPLICANT VERSUS DODSAL HYDROCARBONS AND POWER(TANZANIA PVT) LIMITED RESPONDENT RULING Date ofiast Order: Date ofRuling: 18/11/2021 T. N. MWENEGOHA,J; The applicant brought the application at hand under the provisions of Order 7 (1) and 48 of the Advocates Remuneration Order, G.N. No. 264 of 2015. This application emanates from Land Case No. 405 of 2016 which was finally determined in favor of the respondent, then the respondent proceeded to file a Bill of Costs No. 10 of 2020 claiming the total amount of Tsh. 93,920,771.56. The Bill of Costs was heard and finally taxed at a tune of T.sh. 11,430,000/=. Being aggrieved by the Taxing master's decision the applicant filed a reference at hand Seeking this court to reverse the decision made by the Taxing master, disallowing the bill of costs in Its entirety claiming that it is in contravention with Order 48 of the Advocates Remuneration Order, G.N. No. 264 of 2015 (hereinafter referred to as the Remuneration Order"), and costs of this application. This application is supported by the affidavit of Gadi Charles Khaundami dated 5^*^ October 2020. The hearing of this application proceeded by way of written submission and both parties adhered to the submission schedule. During the hearing of this both parties were represented, whereas the applicant was represented by Mr. Barnaba Luguwa, Advocate the respondent was represented by Mr. Gerald Nangi, Advocate. Submitting in support of the application, Mr. Luguwa started by praying the court to adopt the content of Mr. Khaundami's affidavit so that its content form part of his submission. Mr. Luguwa added that; the amount taxed off is far below one-sixth of the total claimed in the bill of costs. That according to the Order 48 of the Remuneration Order which provides that; "When more then one-sixth of the tote! emount ofd bill of costs exclusive ofcourtfees Is disallowed, the party presenting the billfor ..f taxation shall not be entitled to the costs ofsuch taxation: He added that in the case at hand the Taxing master has taxed off far more than 5/6 of the bill of costs, therefore, he should have disallowed the whole bill presented. To support his argument, he cited the case of The Regional Commissioner of Shinyanga Vs Benard Msonga Sizas'za Civil Reference No. Oloe 2019. He finalized his submission by praying this court to reverse the decision of the taxing master and disallow the whole bill of costs, with costs, as it contravenes Order 48 of the Remuneration order. Repiying against the application Mr. Nangi submitted that, the Order has been misconstrued by the Applicant. That the provisions of Order 48 of the Remuneration Order provides that; "When more than one-sixth of the total amount of a bill of costs exclusive ofcourtfees Is disallowed, the party presenting the billfor taxation shall not be entitled to the cost ofsuch taxation...Provided that, at the discretion of the taxing officer any instruction fee claimed, maybe disregardedin the computation ofthe amountfixed ofthat fee in the computation ofthe one-sixth". He said that from a literal interpretation, the disallowance of costs referred to in the above-cited provision is with regards to the costs in the taxation cause and not the bill of costs itself. He added that, even if the disallowance was applicable in the matter at hand, the cited Order includes a proviso that provides for the discretion of the taxing officer to disregard any instruction fee claimed in the computation of one-sixth of the claimed amount. The ruling of the taxing master in Bill of Costs No. 10 of 2019 is silent on whether or not the taxing master exercised such discretion. That, the instruction fee claimed in the given matter is TZS 93,790,000 and the entire cost for the suit is TZS 93,920,000. Assuming the taxing master exercised his discretion and disregarded the instruction fee claimed, the difference between the instruction fee and the entire cost of the suit is merely, TZS 200,000 and therefore, the amount taxed, that is TZS 11,430,000 is not more than one-sixth of the amount daimed. That, an interpretation of Order 48 of the Remuneration Order reveals that the court should deny the Respondents costs of the taxation cause and not the bill of costs in its entirety. Mr. Nangi further submitted that, the provision of Order 48 of the Remuneration Order, does not operate automatically but it is subject to the discretion of the Taxing Master. Therefore, that the taxing master has the discretion to either deny taxing the Bill as presented or to apply the proviso stated under Order 48 of the Remuneration Order. To support his argument, he cited the case of Julius Mwarabu vs. Ngao Godwin Losero, Civil Reference No.4 of 2020, High Court of Tanzania at Arusha,(Unreported). In this case, when faced with the same issue of interpretation and implementation of Order 48 of the Remuneration Order, under page 3 of the Ruling, Gwae J. held that; "The essence of having this provision of the iaw in piace is a prohibition ofexaggeration orinflating costs ofcases bylitigants who aim at enriching themselves in eases where they emerge victories. However, in my view, that discretion should be applied in special circumstances. I am saying so simpiy because there is no dispute that, the applicant enjoined legal services from a private advocate and notfrom iegai aid or on pro bono basis, in our instant case, itis evidently dear that the DR. opined to dismiss the applicant's biii of costs after he had arrived at the biii of Tshs. 999,000/=far beyond one-sixth ofthe presented biii(Tshs. 4,899,000!=)." The Court proceeded and held that; "Perhaps wouid iike to subscribe to a decision in Tanzania Renta Car Limited v. Peter KimuhUr Civii Reference No. 9 of2020 (unreported) where a singleJustice ofappealheld; "As argued by the counsel for the parties, it Is a general, rule that the award of Instruction fees Is peculiarly within the discretion ofa taxing officer and the court will always be reluctant with the decision unless It is proved that the taxing officer exercised his discretion injudiciously". Mr. Nangi also added that, basing on the findings in the Julius Mwarabu's case (Supra) it is justifiable to say that the Taxing Master had discretion to either apply the provision of Order 48 of the Remuneration Order or otherwise, therefore not proper for the court to interfere with the Taxing Master's decision at this juncture because the discretion so used was exercised judiciously. He cited the case of Hotel Travertine Limited v. National Bank of Commerce,Taxation Civil Reference No.09 of 2006 in which the Court of Appeal reiterated that "The allowance for Instruction fees Is a matter ofpeculiarly in the Taxing Officer's discretion and courts are reluctant to Interfere Into that discretion unless It has been exercised Injudiciously...It will do so where he has acted upon wrong principles or applied wrong considerations In coming to Ms decision." That considering the nature and duration of the case from which the bill of costs arose, it is an undeniable fact that the taxing master did not apply wrong considerations while arriving to his decision and thus, there is no justification for the interference of this court with the taxing master's decision. To support his argument, he cited the case of Premchand Raichand Ltd and Another V. Quarry Services of East Africa Ltd and Others (No. 3)[1972] 1 EA 162): where it was held that; Costs be not allowed to rise to such level as to confne access to the courts to the wealthy; that a successful litigant ought to be fairly reimbursed for the costs Incurred; that the general level of renumeration of advocates must be such as to attract recruits to the profession; and that so far as practicabie there shouid be consistency in the awards made. The court wiiioniyinterfere when the award of the taxing officer is so high or so iow as to amount to an injustice to one party." That, the Principles highlighted above fall in line with of his submission that the court should only interfere when the award of the taxing officer is so high or so low as to amount to an injustice to one party. That in the application at hand the amount awarded by the taxing officer is neither so high nor so low and therefore, no party to the dispute has suffered injustice to warrant the interference of this court. Mr. Nangi added that, the applicant has made a general submission that the taxing master contravened Order 48 of the Remuneration Order by refraining to disallow the bill of costs in its entirety, however, failed to substantiate his arguments. To support this argument, he cited the case of Harriston Mandali & 9 other v. The registered Trustees of Archdiocese of Dar es Salaam, Civil Reference No. 04 of 2019 in which the High Court stated that the applicants failed to show specifically how the complexity was unlawfully considered by the Taxing Master. When rejoining Mr. Luguwa submitted that, the respondents did not file a claim for costs basing on the time the suit remained in court or the difficulties they faced in handling the said case. That, the taxing master held at page 7 and 8 that; "Going through the receipts attacheditis apparentthatthe so-caiied instruction fees as envisaged by some fiscai tax invoices invoived other matters not reiated to iand case No. 205 of2016. For exampie, the description of the fiscai tax invoice of21^'^ day of April, 2017portrays that the sum ofUSD 1163. 48 waspaidforlegal fees for the month of April, 2017 Including reviewing the counter affidavit of Bishop GADI together with aii related correspondences and managementthroughout Therefore, Land case No. 205of2016 was not the sole matter or activity in which the monthly charges were being paid as there were other activities not related to iand case No. 205of2016 were paid for. Apartfrom the shortfall noted, the fiscal tax invoice couid not teii with certainty whether what was invoiced was actually paid. I am of that stance as invoice is a document that initiate payment. A payment receipt or acknowledgement ofpayment would surface the purpose". That, the respondent did not make any other claim basing on the time spent in handling this case but to the contrary the taxing master went out and considered matters which were not contained in the bill of costs as a criteria of awarding an amount of T.sh 10,000,000/=. That this is against the rule of pleading. That, taxation is a proceeding in which the taxing master considers each item in the bill of costs and he is supposed to allow only such bill which has been presented and proved, therefore that the act of the taxing master offering the said sum basing on the claim that he has discretion to award anything is against the law. Having gone through the rival submissions the main issue for determination is whether application beforehand is meritorious. In submitting for the application Mr. Lugawa argued that, because the total amount taxed off in the Bill of Costs No.10 of 2020 remains far below one-sixth of the total amount claimed, as he taxed 5/6 of the total amount claimed, therefore that, the Taxing master ought to have disallowed the entire Bill of Costs. In reply Mr. Nangi said that, the applicant wrongly misconstrued the Order, that the correct interpretation of Order 48 ofthe Remuneration Order, is that, the disallowed costs referred to in the above-cited provision is with regards to the costs in the taxation cause and not the Bill of Costs itself. Now, the center of this application is interpretation of Order 48 of the Remuneration order provides as follows; "Where more than one-sixth of the total amount ofa bill of costs exclusive ofcourtfees is disallowed, the party presenting the billfor taxation shall not be entitled to the costs ofsuch taxation; provided that, at the discretion ofthe taxing officer any instruction fee, maybe disregarded in the computation ofthe amounttaxed of that fee in the computation of the one-sixth"(the emphasize is mine). My learned sister Mkwizu when faced with the scenario like the one at hand in the case of The Regional Commissioner of Shinyanga (supra) had this to say; "...the applicants had presented a biii of costs totaling at 30,650,000/= out of which oniy 720,000 were taxed and the rest taxed off. The disallowed amount is obviously above one-sixth of the total claimed amount in the biii of cots. Having so taxed, the Taxing Master ought to have taken into account the provisions of order 48 above and declare that the respondent(who were the applicants then) are entitled to no costs as submitted by Mr. Lwenge, learned Senior State Attorney." She went further by citing Civil Reference No. 72 of 2018 between John Momose Cheyo and Stanbic Tanzania Ltd Where it was held that:- "... Taxing Master in exercising his power in taxation proceedings was aiso bound by order 48 ...Since the Taxing master faiied to observe the statutory requisites envisaged in order 48 of the Advocate Remuneration Order of Government Notice No. 263(sic) of 2015, I hereby quash and set aside the decision of the Taxing Master in the Misc. Commerciai appiication No. 9 of 2017 which granted costs. Next, I hereby ruie and decide that since in the respondent biii ofcosts, one -sixth ofthe ciaimed amountbeing Tsh 7,567,600/= was disaiiowed by Hon. Taxing Master, I hereby find and decide that respondent is not entitied to the costs of such taxation..." As it was correct decided above the true definition of the Order 48 is that once one sixth of the total amount claimed is taxed off, the entire Bill of Costs ought to be disallowed. The records reveals that, the applicant in the bill of costs presented the Bill of Costs to the tune of 93,920,771.56/= out of which only Tshs. 11,430,000/= were taxed. The taxed off amount is above one sixth the total amount claimed. As stated above from the quoted authority the Taxing master was required to take into account the provision of Order 48 of the Remuneration Order and proceed to disallow the Bill of Cost in its entirety. The cited order aimed at prohibiting the exaggeration of costs of cases by litigants who aim at enriching themselves in cases where they emerge victors. See Julius Mwarabu's case (supra). I find the application to have merits. Therefore, I proceed to quash and set aside the taxing master's decision, allow the application and order that the claimed costs in the Bill of Costs No. 10 of 2020 disallowed for reasons that one sixth were taxed off. It is so ordered. Dated at Dar es Salaam this 18^^ day of November, 2021. T.^irMWENEGOHA \3RT 0/> JUDGE o 7: c ❖ EC ★ ★ o D 10