estomih william ulomi vs andrea nehemia swai and 3 others 2024 tzhc 319 16 february 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MOSHI SUB REGISTRY

AT MOSHI CIVIL REFERENCE NO. 08 OF 2023 (Originating from Taxation Cause no.214/2022 in the District Land and Housing Tribunal for Moshi at Moshi, Hon. R. Mtei, Taxing Officer) ESTOMIH WILLIAM ULOMI ………………………………… APPLICANT

VERSUS ANDREA NEHEMIA SWAI ….………………..……… 1st RESPONDENT ANNA ANGA SWAI …………………………..………. 2nd RESPONDENT OKULI WILLIAM SWAI ……………………………… 3rd RESPONDENT MAGRETH WILLIAM SWAI ………………………… 4th RESPONDENT

RULING 17/01/2024 & 16/02//2024 SIMFUKWE, J. 1 The matter at hand came before me as a Reference Application by virtue of Order 7 (1) and (2) of the Advocates Remuneration Order GN. 264 of 2015. The applicant herein, is dissatisfied with the proceedings, decision and orders of the Taxing Officer in Taxation Cause No. 214 of 2022, of the District Land and Housing Tribunal for Moshi at Moshi. The application was preferred by way of Chamber Summons supported by affidavit of the applicant seeking the following orders: 1. That, the decision, orders and proceedings of the District Land and Housing Tribunal for Moshi at Moshi a nullity on account of non- involvement of assessors.

2. That, the respondents were not belittled any instruction fees. (sic) 3. The court to invoke the provision of Order 48 of the Advocate Remuneration Order, GN. 264 of 2015 and find out that the Respondents are not entitled to any costs 4. That the costs of the application be in the cause; and 5. Any other relief(s) as the Honorable Court deem fit and just to grant. 2 When this Reference Application was called for hearing, the applicant prayed that the application be heard by way of written submissions. His prayer was granted. Both parties filed their respective submissions as scheduled by the court. Arguing in support of the present reference, the applicant started by attacking the counter affidavit filed by the respondents in this court on 29th day of November, 2023 as defective in the jurat and attestation. The applicant contended that the jurat of attestation does not indicate whether the deponents are known personally to the Commissioner for Oaths or whether they were identified to him by someone else. The applicant stated further that, the jurat of attestation was defective for not being signed by the deponents indicating that they did not appear and swear before the Commissioner for oaths. Regarding the 3rd ground, the applicant submitted that the trial Chairman did not involve tribunal assessors in deciding Taxation Cause No. 214 of 2023. He fortified his argument by

referring to section 23 (1) of the Land Disputes Courts Act, (Cap, 216 R.E 2019) and Regulation 19(1) and (2) of Land Disputes Courts (The District Land and 3 Housing Tribunal) Regulations, 2003, which requires the chairman to sit with not less than two assessors. The applicant continued to aver that; the order of the trial tribunal indicates that the assessors were present but no opinion of assessors was sought by the Chairman. To reinforce his argument the applicant referred to the case of ELILUMBA ELIEZEL vs JOHN JAJA, Civil Appeal No. 30 of 2020 (unreported) CAT, which insisted that, the assessors’ opinion in the judgment go hand in hand with recording their opinion during proceedings. On the 4th ground of the affidavit, the applicant submitted that, the Chairman of the trial tribunal assessed and awarded instruction fee incurred by the respondents without any evidence to prove such transactions. To cement his argument, the applicant referred to section 36 (1) of the Tax Administration Act, 2015. He further submitted that, no receipt was furnished by the respondents to prove any cost incurred by them as presented under item 1 of the presented Bill of costs in violation of the provisions of the law as cited above and section 110 of the Evidence Act, Cap. 6 4 The applicant continued to state that, the disallowed amount by the Chairman of Tshs. 1,000,000/= is above sixth of

the total claimed amount (2,670,000/=) in the bill of costs. Thus, the tribunal was required to invoke the provision of order 48 of the Advocates Remuneration Order 264 of 2015 and find that the respondents were not entitled to any cost. Contesting the applicant’s submission, the respondents commenced to argue the first ground by stating that, they complied with section 5 of the Oath and Statutory Declaration Act (Cap 34 R.E 2019) as all respondents were attested and sworn before the commissioner for oaths. Responding to the 3rd paragraph the respondents submitted that, the Hon. Chairman was very clear that in the impugned decision there is no legal requirement which bind the tribunal to sit with assessors in its final decision. That, the applicant misapplied section 23(1) of the Land Dispute Courts Act Cap 216 R.E 2019 as the same concerns land issues not bill of costs. Regarding the applicant’s complaint that the respondents failed to submit the receipt to justify payment of TZS 2,000,000/= to the advocate, the respondents contended that, under the Advocates Remuneration Order 5 G.N 264 of 2015, there is no requirement of proving payment by production of receipt. I have carefully considered the rival submissions made by both parties in line with the instant application. I will not determine the issue of defectiveness of the jurat of attestation in the counter affidavit as

argued by the applicant, because the argument was supposed to be raised as the preliminary objection prior to the hearing of this matter. Regarding the issue of involvement of assessors in determining the bill of costs, the applicant averred that the order of the trial tribunal indicates that the assessors were present but no opinion of assessors was sought by the chairman. The applicant referred the case of Elilumba Eliezel vs. John Jaja (supra) and Section 23 (1) and (2) of the Land Dispute Act, (supra) together with Regulation 19(2) of the Land Disputes Courts (The District Land and Housing Tribunal) Regulations, 2003. In opposing the argument, the respondents submitted that, it is not mandatory for the trial tribunal in its final decision to consider the opinions of assessors. 6 From the above assertions of both parties, I agree with the applicant that it is the requirement of the law as well as case laws that, the District Land and Housing Tribunal shall be dully constituted when held by a Chairman and two assessors who shall be required to give their opinions before the Chairman reaches the judgment. However, when dealing with pure points of law, opinions of assessors are not binding to the learned Chairman. Like in the instant matter, while determining the application for the bill of costs, the assessors were present but their opinions were not included in the ruling. In

applications for bill of costs there is no law which requires the Chairman to sit with assessors. Concerning the award of instruction fees, as a general rule it is peculiarly within the discretion of a taxing officer/Master. The Court will always be reluctant to interfere with his decision, unless if it is proved that the taxing officer exercised his discretion injudiciously or has acted upon a wrong principle or applied wrong consideration. This position has been articulated in several decisions of the Court. See the cases of The Attorney General v. Amos Shavu, Taxation Reference No. 2 of 2000, The East African Development Bank v. Blue Line Enterprises, Civil Reference No. 12 of 7 2006 (both unreported) and Premchand Rainchand Ltd and Another v. Quarry Services of East Africa Ltd and Others (No.3) [1972] 1 E.A.

162. Moreover, in exercising the discretional power, there are factors to be considered by the Taxing Officers in granting costs as provided under the proviso of paragraph (m) of the Advocate Remuneration Order, G.N 264 of 2015. For ease reference I quote it hereunder: "aa) The Taxing Officer, in the exercise of his discretion, shall take into consideration the other fees and allowances to the advocate (if any) in respect of the work to which any such allowance applies, the nature and importance of the cause or matter, the amount of work involved, the interest of the parties, the general conduct of the proceedings, and all other relevant circumstances;" Guided by the above provision of the law, the taxing officer has been given wide discretion to determine taxing costs as it appears to him to be proper for attainment of justice. However, the said discretion should be exercised within the cost scales prescribed in the Rules. In addition, the taxing officer 8 is also supposed to consider other factors such as the value of the subject matter involved, the complexity of the case, time taken to finalise the matter including attendances, correspondences, perusals and the consulted authorities or arguments. Item 1 (m) (i) of the 11th Schedule of GN No. 264 of 2015 prescribes the instruction fee for opposed applications of not less than TZS 1,000,000/=. In determining the last ground,

I am alive to the fact that, there is a general principle governing interference with the taxing officer’s discretion, as once stated by a South African Court, in the case of Vissar vs. Gubb 1981(3) SA 753 (C) 754-755. The court held inter-lia that: - “The court will not interfere with the exercise of such discretion unless it appears that the taxing master has not exercise his discretional judicially and has exercised it improperly, example by disregarding factors which he should properly have considered, or considering matters which it was improperly for him to have considered; or he had failed to bring his mind to bear on the question on issue; or he has 9 acted on a wrong principle. Court will also interfere where it is of opinion that the taxing master was clearly wrong will only do so if it is in the same position as, or a better position than, the taxing master to determine the point in issue. …” Having observed the legal position as noted above, this taxation reference challenges the amount taxed in favor of the respondents. Basically, the applicant is claiming that the taxation is not backed up or supported by evidence. As hinted above, the issue which I am called upon to address therefore is, whether it was appropriate for the Tribunal to assess and tax TZS 1,670,000/=, being the total costs incurred by the respondents to conduct the impugned decision without

production of receipts? As gathered from the rival written submissions advanced by both parties, it is undisputed that the respondents did not produce any receipts to prove their claims. On the other hand, the respondents argued that there is no requirement of proof of costs by receipts. On scrutiny of the pleadings of the parties and the lower tribunal’s ruling, I join hands with the submission advanced by the respondents that the 10 current position of the law departs from the mandatory requirement of attaching EFD receipt in proving the bill of costs. In the case of Tanzania Rent a Car Limited v. Peter Kimilu which was referred by the learned Chairman it was stated further that: “On the basis of the above provision and authority, I am in agreement with Mr. Kobas that in taxation of a bill of costs there is no need of proof of instruction fees by presentation of receipt, vouchers and/or remuneration agreement because the taxing officer, among others, is expected to determine the quantum of the said fee in accordance with the cost scales statutorily provided for together with the factors enumerated above.” From the above principle of law, the paramount guidance should be on the cost scales as statutorily provided by the law, together with other factors as propounded in the proviso of paragraph (m) of the Advocates Remuneration Order (supra). I had ample time to reassess the

bill of costs taxed by the tribunal against the applicant. In the bill of costs, the decree holders (respondents herein) claimed for the sum of TZS. 2,000,000/= being costs incurred as 11 instruction fees and 670,000/=as other costs for prosecuting the case and drafting an application for Bill of Costs. Whereas the tribunal taxed off, a total of TZS. 1,000,000/= from the instruction fees and awarded TZS. 1,670,000/= as total costs for the entire bill. At page 2 of the ruling, the taxing officer ruled that: “Aidha kwa kuwa shauri Na. 11/2021 halikusikilizwa hadi mwisho kwa maana kwamba lilishia katika hatua ya pingamizi la awali la kisheria nimeona kiasi cha Tshs 1,000,000/= kitakuwa sahihi. Hivyo kwenye kipengele hiki kimekubalika kiasi cha Tsh 1,000,000/= kama gharama za uwakilishi badala ya kiasi cha Tsh 2,000,000/= zilizoombwa na Waleta maombi.” In my considered opinion, the Taxing Master reasonably exercised his discretion and taxed the bill of costs in accordance with the law. Basing on the foregoing observation, and to the extent of my findings, I have no reason whatsoever to fault the findings and decision of the Taxing Master. The same is upheld accordingly. In the event, the reference by the applicant is accordingly dismissed with costs. 12 It is so ordered. Dated and delivered at Moshi this 16th day of February 2024. X S. H. SIMFUKWE

JUDGE Signed by: S. H. SIMFUKWE 16/02/2024 13