b2 FORDINA VIJEVANIA SANGA VS

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB - REGISTRY AT MBEYA LAND REFERENCE NO. 3837 OF 2024 (From bill of costs No. 123 of 2016 of the District Land and Housing tribunal for Mbeya at Mbeya dated 05/02/2024) FORDINA VIJEVANIA SANGA........................................................ APPLICANT VERSUS JOSEPH LAISON MWANZYELE................................................. RESPONDENT RULING Date of hearing: 01/07/2024 Date of ruling: 30/07/2024 NDUNGURU, J. The applicant has filed this reference seeking to overturn the decision of the taxing officer in Bill of Costs No. 123 of 2016 of the District Land and Housing Tribunal for Mbeya at Mbeya. The court is moved under order7(l)(2) of the Advocate Remuneration Order, 2015, the application is supported by the affidavit of the applicant. The respondent filed counter affidavit to resist the application. Briefly, it is averred that the parties had Land Application No. 123 of 2016 in the District Land and Housing Tribunal for Mbeya which was i in favour of the respondent. Then the respondent filed bill of cost No. 123 of 2016 in which the taxing officer awarded the respondent Tsh. 8,302,000/=. Aggrieved the applicant has preferred this reference on ground that the awarded amount is contrary taxation principles. As expected, the respondent supports the decision of the taxing officer. When reference came on for hearing, the applicant was represented by Yona Frank, learned counsel whereas the respondent had service of Mr. Victor Mkumbe, also learned counsel. The application was heard by filing written submissions. In his submission counsel for the applicant stated that the chairman was supposed to apply paragraph l(k) of the Eleventh Schedule to the Advocate Remuneration Order which covers instruction fees for proceedings in the high court, subordinate court and tribunals. That although that paragraph does not state the exact amount but requires the taxing master to consider reasonable amount not more than Tsh. 1,000,000/=. He cited the case of VIP Engineering & Marketing Ltd vs CityBank Tanzania Limited, Civil Application No. 24 of 2019 [2021] TZCA 112 (14 April 2021; TanzLII) to support the argument. Counsel stated that the matter in the tribunal was not complicated as it only involved interpretation of boundaries. 2 On transportation costs, counsel submitted that it was contrary to the law because when the case was in the tribunal, transport fare from Chunya to Mbeya was Tsh. 6,000/= for go and return. He added that proceedings in the tribunal show that the respondent appeared nineteen sessions making the total of Tsh. 114,000/=. Attendance for advocate, it was submitted that advocate attended seventeen time and the transport cost is Tsh. 50,000/= making the total of Tsh. 850,000/=. In respect of food service, the counsel said was supposed to be Tsh. 5,000/= each day at the tune of Tsh. 95,000/= Counsel for the applicant submitted that costs for attendance of respondent, advocate and food accommodation was supposed to be taxed at Tsh. 1,059,000/= and not 3,720,000/= awarded by the taxing master. It was further stated that the same was not proved, the case of Thinamy Entertaiment Ltd & Others vs Dino Katsapas, Misc. Commercial Application No. 86 of 2018 [2019] TZHCComD 149 (24 April 2019; TanzLII) was referred in support of the preposition. Counsel argued that there were no receipts on the incurred costs. Last is Tsh. 400,000/=as costs for prosecuting bill of cost, it was argued that hearing of bill of costs did not engage parties much, hearing of objection did not take considerable time and it was well known to parties. From the above prayed reference to be granted. 3 Responding to the above submission, the respondent's counsel favoured the decision of the taxing officer that paragraph l(m) of the Eleventh Schedule to the Advocate Remuneration Order was properly applied and therefore awarding instruction fees of Tsh. 4,000,000/= was proper and not excessive. Regarding attendance cost counsel submitted that during hearing the respondent tendered relevant receipts of expenses incurred and it was attached to bill of cost. Counsel added that it was not objected during introduction in evidence. On fees to prosecute bill of cost, Mr. Mkumbe submitted that it was properly awarded. Finaly counsel prayed the reference to be dismissed with costs. In rejoinder counsel for the applicant restated his submission in chief. I have duly considered the rival submissions in line with what are on the records. The major complaint is that the amount awarded as instructions fees and other costs were extremely excessive. Taxation of bill of costs is governed by the Advocate Remuneration Order which prescribes scales and exact amount to be paid in some of the cases. 4 Starting with the complaint that instruction fees ought to be charged at Tsh. 1,000,000/= under paragraph l(k) of the Eleventh Schedule to the Advocate Remuneration Order. I have considered the matter which was before the tribunal and found it was a land case, the value of it was estimated at Tsh. 9,000,000/=. That being the value of the subject matter and in original jurisdiction, instruction fee was to be charged in accordance with paragraph 3 of Nineth Schedule to the Advocate Remuneration Order and not Eleventh Schedule as submitted by counsels. From the value of the subject matter the instruction fee was to be charged between 15% to 20%. Taking Tsh. 9,000,000/= at the scale of 20%, the amount is Tsh. 1,800,000. In this case the tax officer awarded Tsh 4,000,000/= after taking into account the time taken to finalise the matter, expert who were consulted and visiting locus in quo and agreed with the respondent's counsel that the amount of Tsh. 4,000,000/= was not excessive. The determination of quantum of costs under instruction fees, the primary consideration by the taxing officer is the prescribed scale under the Advocates Remuneration Order. In principle, determination of the quantum of instruction fees is within the discretion of the taxing officer and that, the High Court judge would only interfere if the said discretion was not exercised judiciously or where the amount awarded was 5 unreasonably excessive. In the case of premchand Raichand Ltd and Another v. Quarry Services of East Africa Ltd and others (No. 3) [19720 1 E.A. 162 the erstwhile Court of Appeal for East Africa laid down four guiding principles which have to be considered when determining the quantum of an instruction fee. These are; first, that costs shall not be not allowed to rise to such a level as to confine access to the courts to only the wealthy; secondly, that the successful litigant ought to be fairly reimbursed for the costs he reasonably incurred; thirdly, the general level of the remuneration of advocates must be such as to attract worthy recruits to an honourable profession; and, fourthly, that there must, so far as is practicable, be consistency in the awards made, both to do justice between one person and another and so that a person contemplating litigation can be advised by his advocates very approximately what, for the kind of case contemplated, is likely to be his potential liability for costs. The principles have been followed in Kitinda Kimaro vs Anthony Ngoo & Another, Civil Application No. 576 of 2018 [2021] TZCA 8 (11 February 2021; Tanz_LII), ECOBANK Tanzania Limited vs A.A. Trans Limited & Others, Civil Appeal No. 399 of 2020) [2024] TZCA 100 (23 February 2024; TanzLII) and Trustees of The Cashewnut Industry Development Fund vs Cashewnut 6 Board of Tanzania, Civil Reference No. 4 of 2006 [2009] TZCA 57 (10 February 2009; TanzLII) to mention few. I have thorough considered the matter at hand, indeed it took long time to be finalised, record show that the matter ended on 15/12/2017 and the matter was reopened in 2020 after the high court had nullified the judgment. This was not faults of the applicant. Regarding calling land experts and visiting locus in quo it was part and parcel of prosecuting and defending the matter, the applicant cannot be blamed for that. From the analysis of the above I find the amount was too excessive, it is reduced to Tsh. 2,000,000/= The other complaint are costs which covers attendance costs for advocate, respondent, food service and accommodation which was awarded at Tsh. 3,720,000/= by the taxing officer to the respondent without specification. The applicant did not dispute the amount charged on attendance of advocate which he said it was on seventeen occasions, the amount being Tsh. 850,000/= The issue is in respect of attendance of the respondent which counsel said it was supposed to be Tsh. 6000 for go and return and 5000 as food accommodation on 19 attendances. The taxing master in his ruling was convinced that from Chunya to Mbeya is 114 kilometers 7 and it consumes 50 liters of diesel and the amount was awarded as claimed. Costs for attendance of the respondent varied, in the bill of cost it appears in some occasions used communal buses and the fare of 20,000/= was claimed. In other occasion used private transport also cost varied. Starting with communal buses, the law under paragraph 23(g) of the Eighth Schedule to the Advocate Remuneration Order estimates costs for a journey of seven hours to be Tsh. 20,000/=, thus it is not excessive for go and return from Chunya to Mbeya. On use of private transport, there was no any compelling reason advanced by the respondent which necessitated the use of such kind of transport, it was therefore unreasonably awarded. In the bill of cost the respondent is shown to have attended in twenty-one court sessions, taking 21 x 20,000/= it comes 420,000/=. Food service and accommodation was claimed under item 28 at Tsh. 887,500/=. However, I find the same was at high side, even in the submission there was no reason advanced, the same to taxing master in awarding the same there was no reason advanced. I have perused receipts attached to bill of cost, most of them are feinted, on those which I managed to read, it shows service was rendered by Omari 8 Bariadi Mapesa of Chunya, it is inconvincible while the respondent was travelling from Chunya to Mbeya food service was consumed at Chunya. In the circumstances of this case, Tsh. 10,000/= as food service on each day of attendance is reasonable and the total is Tsh. 210,000/=. Regarding accommodation, I reject it for lack of compelling reasons which made the respondent to sleep in Mbeya for a distance of 114 Kilometers for go and return. With respect to costs of prosecuting bill of costs the applicant's counsel has submitted that it is high. The record show that the applicant raised preliminary objection which was successful and then bill of cost was heard through written submissions. Thus, there was intensive research by consulting different statutes and authority. I do not subscribe to the view that less energy was used in arguing preliminary objection for a reason that a benevolent advocate will not prepare for the hearing of a preliminary objection only. After all, it is a thorough preparation which will normally unveil a preliminary point of law. In East African Development Bank v Blueline Enterprises Ltd, Civil Reference No. 12 of 2006 (Unreported), the court stated; 'Anyone contemplating to appear in this Court, and indeed in any court of law, must prepare him seif adequately in all respects' 9 In that regard I find the amount of Tsh. 400,000/= reasonable and not at high side. After taking into consideration all the above factors, I have reached the conclusion that this is a fit case where the amount awarded by the taxing officer should be interfered and reduced. I thus substitute Tshs. 4,000,000/= awarded as instruction fee by taxing officer to Tshs. 2,000,000/=. Attendance costs, food service and accommodation of Tsh. 3,720,000/ is reduced to Tsh. 1,480,000/=. The consultation fee of Tsh. 100,000/=, costs for prosecuting bill of cost and reimbursement costs remain undisturbed. This means that the amount to be taxed should be equal to Tsh. 4,062,000/= In the upshot, this reference is allowed to the extent stated. In the peculiar circumstances of the reference and bearing in mind the verdict I have arrived at, I refrain from making any order as to costs. It is so ordered. D.B. NDUNGURU JUDGE 30/07/2024 io