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THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA CIVIL REFERENCE NO. 24685 OF 2024 (Arising from Taxation No. 21 of 2022 of the High Court of Tanzania at Mbeya before Hon A.E. Temu DR, dated 11/9/2024, Originated from Misc. Civil Application No. 20 of 2022 of the High Court of Tanzania) ELIZABETH SETH KIMBIANI……………………………. APPLICANT VERSUS SCOLA SAMUEL MAMBOLEO…………….…………… RESPONDENT RULING Date: 14 February 2025 & 19 March 2025 SINDA, J.: The applicant filed this application praying for this court to inspect, and revise the decision of the Taxing Master in Taxation Cause No. 21 of 2022. The application was brought by way of chamber summons under Order 7(1) and (2) of the Advocates Remuneration Order, GN No. 263 of 2015 (the Advocates Remuneration Order). The applicant's affidavit supports the application. The respondent opposed the application by filing the counter affidavit. 1 The fact of the case was that the applicant previously filed Application No. 20 of 2022 for an extension of time to file a bill of cost. The application was dismissed with cost. Hence, the respondent filed an Application for the Bill of Cost No. 21 of 2023 claiming to be awarded Tanzanian Shillings Two Million (TZS 2,000,000/=) as instruction fee, Tanzanian Shillings Four Hundred Thousand (TZS 400,000/=) for attendance and Tanzanian Shillings Ninety Thousand (TZS 90,000/=) for disbursement. At the end of the hearing, the Taxing Master awarded the respondent Tanzanian Shillings Two Million One Hundred Ninety Thousand (TZS 2,190,000/=) as a taxed bill of costs for instruction fee, disbursement and attendance. Aggrieved with the decision, the applicant filed the application at hand, claiming that there was no justification for awarding Tanzanian Shillings Two Million One Hundred Ninety Thousand (TZS 2,190,000/=) as a taxed bill of costs. The applicant added that the respondent failed to prove the costs to the required standard and that the awarded cost was excessive. At the hearing of the application, the applicant appeared in person while Stanislaus Michael, learned counsel, represented the respondent. The application was argued by way of written submission. 2 The applicant prayed her affidavit to form part of this written submission. On the first ground, the applicant submitted that the first fundamental error was that the Taxing Master erred in law in awarding Tanzanian Shillings Two Million One Hundred Ninety Thousand (TZS 2,190,000/=) to the respondent without any justification. She maintained that no proof was made on the claimed items, considering that documentary evidence is crucial and mandatory for specific loss or damages. She stated that from the ruling of the Taxing Master on page four (4), it is clear that the bill of costs was taxed as follows: instruction fee of Tanzanian Shillings One Million only (TZS 1,000,000/=) and the rest were taxed off, disbursement was taxed at Tanzanian Shillings Ninety Thousand only (TZS 90,000/=) and attendance was taxed at Tanzanian Shillings Seven Hundred Thousand (TZS 700,000/=). She argued that adding the above amounts brings the total of Tanzanian Shillings One Million Seven Hundred Ninety thousand (TZS 1,790,000/=). However, in surprise and without any justification, the Taxing Officer, on page four (4) of the ruling, indicated that the amount which ought to be paid is Tanzanian Shillings Two Million One Hundred Ninety Thousand (TZS 2,190,000/=) including Tanzanian Shillings Four Hundred Thousand (TZS 400,000/=) which has been added unreasonably. 3 She submitted that from the ruling, the total amount of attendance at the court as taxed was Tanzanian Shillings Seven Hundred Thousand only (TZS. 700,000/=), and this attendance cost includes both the respondent and the counsel for the respondent. However, in surprise, on page three (3) of the ruling, the Taxing Master taxed Tanzanian Shillings Four Hundred Thousand (TZS. 400,000/=) again as attendance of the counsel for the respondent for the specified dates of 18 August 2022, 26 September 2022, 12 October 2022, 24 October 2022, 30 November 2022, 12 December 2022, 02 February 2023 and 07 February 2023. She contended that, surprisingly, the court's findings involved other days unknown to the respondent and not listed in the court record. She added that it is clear that the advocate's attendance in court was not proved to the required standard. She argued that the advocate's appearance has been taxed twice, contrary to the Advocate’s Remuneration Order. She argued that justice directs the person not to be condemned to pay costs that were not incurred and that were twice as much. She added that the amount of Tanzanian Shillings Four Hundred Thousand (TZS. 400,000/=) has been erroneously taxed. She further submitted the second and third grounds together. She stated that sections 110 and 112 of the Tanzania Evidence Act, Cap 6, R.E 2022, 4 are also applicable in the claims for a bill of costs. She stated that the respondent failed to prove the costs in the balance of probabilities, as those were incurred as the costs of attendance. He added that the respondent failed to prove that the amount of Tanzanian Shillings Fifty Thousand (TZS. 50,000/=) was incurred in attendance per day, considering that the Respondent resides within Mbeya City and there is plenty of means of Transport. She added that even if the Respondent used his private car, the amount of Tanzanian Shillings Fifty Thousand (TZS 50,000/=) per day was unreasonable and excessive. The applicant agreed only to the costs awarded by the Taxing Master to the respondent that were directly paid to the court, such as the filing fees of Tanzanian Shillings Ninety Thousand (TZS. 90,000/=) and denied all other amounts. She submitted that she was aware of the general rule that the award of instruction costs is peculiarly within the discretion of a Taxing Master, and the court will always be reluctant to interfere with his decision unless it is proved that the Taxing Master exercised his discretion injudiciously or has acted upon a wrong principle or applied wrong consideration. She added that in this case at hand, the decision of the Taxing Master was erroneously reached; hence, if not interfered with by this court, the 5 applicant stands a chance to suffer irreparable loss for condemned paying costs which are too excessive and have no justification for how the same has been incurred. She prayed that the Taxation Cause No. 21 of 2023 be nullified with cost. In reply concerning instruction fees of Tanzanian Shillings (TZS. 1,000,000/=) taxed by the Taxing Master, the advocate for the respondent submitted that there is no dispute that the bill of costs before the Taxing Master originated from Misc. Civil Application No. 20 of 2022. Hence, the amount was taxed according to the law. He added that the provision under the 11th schedule, paragraph 1, item No. M (ii) of the Advocates Remuneration Order provides for the instruction fees for the opposed application to be Tanzanian Shillings One Million (TZS. 1,000,000/=) and not otherwise. He further added that Order 46 of the Advocates Remuneration Order mandates all Taxing Masters to tax according to the scale prescribed by the Order. The respondent averred that the applicant purported that the awarded amount was not proved to the required standard. She added that there is no need for proof of instruction fees by presenting EFD Receipts in the taxation of the bill of costs. He contended that the Taxing Master is expected to determine the quantum of the said fees in accordance with 6 the cost scale provided under the law. He referred to the case of Tanzania Rent a Car Limited v. Peter Kimuhu, Civil Reference No. 9 of 2020 (Unreported). The respondent further argued that the second concern of the applicant is the taxed attendance fees for defending the Misc. Civil Application No. 20 of 2022, the total amount taxed was Tanzanian Shillings Four Hundred (TZS. 400,000/=). He submitted that this taxed amount is not higher. The rates for attendance are fair as reflected under Schedule VIII paragraph 3 (a) of the Advocates Remuneration Order. He maintained that the fee for the Court’s attendance is Tanzanian Shillings (TZS. 50,000/=) per attendance, and the court records show that counsel for the decree-holder has appeared on several dates as reflected in the court’s records that the advocate had attended the court at eight different dates and defended Misc. Civil Application No. 20 of 2022. He added that for that reason, according to the law, the total taxed attendance fees reached of Tanzania Shillings Four Hundred Thousand (TZS. 400,000/=) was very reasonable. The respondent argued further that on the applicant's third concern, the taxed attendance fees on prosecuting Taxation Cause No. 21 of 2023 of Tanzanian Shillings Seven Hundred Thousand (TZS. 700,000/=) is higher. He submitted that this taxed amount is not higher and is in accordance 7 with Schedule VIII paragraph 3 (a) of the Advocates Remuneration Order. He maintained that the fee for court attendance is Tanzanian Shillings Fifty Thousand (TZS. 50,000/=) per attendance, and the court's records show that counsel for the decree-holder has appeared on several dates as reflected in the court’s records that the advocate had attended the Court on fourteen different dates and prosecuted a Taxation Cause No. 21 of 2023. He argued that this court would notice that the court’s attendance was on fourteen different dates due to several adjournments by the judgment debtor. He added, therefore, that the total taxed attendance fees of Tanzanian Million Seven Hundred Thousand (TZS. 700,000/=) are reasonable and according to the law. The advocate for the respondent referred to the decision of the East African Court of Appeal in Haidan Bin Mohamed Elmandry and Others v. Khadija Binti Ali Bin Salen [1956] 23 E.A.C.A. 313 that there is nowhere in either the affidavit or submissions it is shown that the Taxing Master acted injudiciously. He added there is no basis to nullify the decision of the Taxing Master. He submitted that this reference by the applicant is devoid of merit and prayed that it be dismissed with costs. In rejoinder, the applicant reiterated her submission in chief. 8 Having summarised the rival arguments made by both sides and after perusal of the court record, the issue to be discussed is whether this application for reference is meritorious. Starting with instruction fees, it is a position of law that the award of instruction fees is within the discretion of the Taxing Master, and the court would hardly interfere with his decision unless it is proved that the taxing officer exercised his discretion injudiciously or acted upon a wrong principle or applied wrong consideration. This was stated in the case of Tanzania Rent a car limited vs. Peter Kihumu, Civil reference No. 9 of 2020, CAT at Dar es Salaam. The Court of Appeal of Tanzania commented on the issue of instruction fee and stated that: “The award of instruction fees is peculiarly within the discretion of taxing officer and the court will always be reluctant to interfere with his decision, unless it is proved that the taxing officer exercised his discretion injudiciously or has acted upon wrong principle or applied wrong consideration” Also, the Advocate Remuneration Order requires a bill of cost to be taxed at a prescribed scale. It states that: 46. All bill of cost shall be taxed on the prescribed scale, unless a judge of the High Court, for the special reasons to be certified, allows costs in addition to the costs provided by the scale or refuses to allow costs at the lower rate than that provided by the scale. 9 In this case, the taxing master awarded the respondent Tanzanian Shillings One Million (TZS. 1,000,000/=) for the instruction fee. I found that it was proper and in accordance with the prescribed scale as provided under the 11th Schedule, paragraph I, item no (m) (ii) of the Advocates Remuneration Order. The applicant also complained about an unfounded amount taxed on attendance. Schedule VIII paragraph (a) of the Advocate Remuneration Order provides for Tanzanian Shillings Fifty Thousand (TZS. 50,000/=) for attendance lasting 15 minutes in ordinary cases. I have reviewed court records and found that in Misc. Civil Application No. 20 of 2022, the respondent appeared 8 times, and in an Application for Bill of Cost No. 21 of 2023, the respondent attended 14 times. In that regard, it was correct for the Taxing Master to award Tanzanian Shillings Four Hundred Thousand (TZS. 400,000/=) in Misc. Civil Application No. 20 of 2022 and Tanzanian Shillings Seven Hundred Thousand (TZS. 700,000/=) in an Application for Bill of Cost No. 21 of 2023 as per the prescribed scale. I don’t feel the need to discuss the disbursement fee because the applicant did not contest it. Based on the above evaluation, I find no error by the Taxing Master. As such, there is no need to interfere with his findings. 10 The application is devoid of merit, and I proceed to dismiss it. No order as to costs. The right to appeal is explained. DATED at MBEYA on this 19 March 2025. A. A. SINDA JUDGE 11