GAPCO RULING

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM CIVIL REFERENCE NO. 28791 OF 2024 (C/F Taxation Cause No. 000007871 of 2024, arising from Civil Case No. 228 of 2022) GAPCO TANZANIA LIMITED....................................................APPLICANT VERSUS MUSLIM YUSUFALI BHARWANI t/a NYERERE ROAD SERVICE STATION......................................RESPONDENT RULING 24th February & 27th March 2025 MWANGA, J. Pursuant to Order 7 Rule (1) and (2) and 48 of the Advocate Remuneration Order, GN No. 263/2015, the applicant herein has, by way of chamber summons, moved this court for the following orders; 1. That this Honourable Court be pleased by way of Reference to quash and set aside the decision of the Taxing Master, Honourable Aziza Mbadjo in Taxation Cause No. 000007871 of 2024, at the High Court of Tanzania at Dar Es Salaam Sub Registry at Dar Es Salaam zone, delivered on the 5th November, 2024, because: - a. The Taxing Master had no jurisdiction to determine and hear the Respondent’s Taxation Cause No. 000007871 of 2024, High Court of Tanzania at Dar Es Salaam Sub Registry, which 1 was filed out of the prescribed time of Sixty (60) days from the 12th February,2024. b. That the Taxing Master erred in law in allowing the amount of TZS. 43,055,284 to be paid to the Respondent despite disallowing the amount of more than one-sixth of the claimed amount of TZS. 71,440,000. c. Any other relief as this Honourable Court may deem fit and to grant in favour of the Applicant. As usual, the chamber summons is supported by an affidavit dully sworn by Robert Mgoha George, advocate for the applicant. As per affidavit, on the 12th February, 2024, this Honorable Court through Hon. Judge B.K Philip delivered a Judgment and Decree in Civil Case No. 228 of 2022 in favour of the Respondent herein and ordered for the costs of the named suit to be borne by the applicant. According to the applicant, on the 9th April, 2024, the Respondent, being out of time and without seeking or obtaining a leave of this Honourable Court, filed a Taxation Cause No. 000007871 of 2024 at the High Court of Tanzania, at Dar Es Salaam Sub Registry, and claimed a total amount of TZS. 72,685,000 in Civil Case No. 228 of 2022, out of which the amount of TZS. 1,045,000 was the court filing fee. 2 It was further averred that the Respondent’s Taxation Cause No. 000007871 of 2024 was heard on the 9th September, 2024, by Honourable Deputy Registrar, Aziza Mbadjo who later on delivered a Ruling on the same on the 5th November, 2024, in favour of the Respondent. The Ruling and Drawn Order was to the effect that the Respondent was awarded TZS. 40,550,284 as instruction fee, TZS.1,045,000 as disbursement fees, TZS. 1,150,000 as attendance costs, TZS. 60,000 as transport costs for attending court to file documents and TZS. 250,000 as costs for filing and prosecuting the bill of costs. This amounts to the total of TZS. 43,055,284/=. The applicant alleges further that the above decision is tainted with illegality as the taxing officer entertained the Respondent’s application on an excessive claim without jurisdiction on the application that was filed out of the prescribed time; and thereafter awarded the amount of TZS. 43,055,284/= to be paid to the Respondent despite disallowing the amount of more than “one sixth” from the claimed amount of TZS. 71,440,000. It is due to these facts that the applicant has filed the present application for reference. The application was strenuously contested by the respondent, who filed a counter-affidavit to that effect, duly sworn by JOSEPHA D. TEWA respondent’s advocate. In his counter affidavit he claimed that the Fact 3 that the Taxation was filed out of time has already been determined by this Honourable Court. She further averred that the Taxing Master acted within her jurisdiction as required by law, hence no illegality was caused. She finally stated that the Applicant has not demonstrated reasons for this court to grant the prayers sought in the chamber summons. The hearing of the matter took the form of a written submission, in which Robert Mgoha George, learned counsel, appeared on behalf of the applicant. At the same time, the respondent hired the services of Ms. Josepha D. Tewa, also a learned advocate. Submitting in support of the application, Mr. George sought leave of the court to adopt the applicant’s affidavit to form part of his submission, save for the error in quoting the date of 9th April, 2024 under paragraph 3, instead of 12th April, 2024. He then contended that the jurisdiction of the court on the competence and authority to determine the matter placed before it is the fundamental element that has to be ascertained before. He argued that, the Honourable Deputy Registrar did not have jurisdiction to hear and determine the Respondent’s filed Taxation Cause No. 000007871 of 2024 (which was firstly known as Taxation Cause No. 22988 of 2024); because of the same being filed out of prescribed 60 days under Order 4 of the Advocates Remuneration Order, 2015. 4 He went on submitting that, the Order awarding costs to the Respondent as Decree Holder in Civil Case No. 228 of 2022, at the High Court of Tanzania at Dar Es Salaam Sub Registry was the Judgment and Decree, dated 12th February, 2022 and it is on record that, the Respondent filed his Bill of Cost at the High Court of Tanzania at Dar Es Salaam Sub Registry on the 12th April, 2024 being exact 61 days from the 12th February, 2024. He was insistent that the Respondent’s Taxation Cause No. 000007871 of 2024 (which was firstly known as Taxation Cause No. 22988 of 2024) was filed out of time and that the Honourable Deputy Registrar Aziza Mbadjo did not have jurisdiction to hear and determine the same. To buttress his position, he cited to the court the case of Said Mohmed Said Vs Muhusin Amiri and another, Civil Appeal No. 110 of 2020 (unreported) at page 12, where it was insisted that jurisdiction is the first issue the court should ask itself before acting on any matter place before it for determination. He maintained that limitation is a material point in the speedy administration of justice, because limitation is there to ensure that a party does not come to court as and when he chooses. In his further submission, he said, the Law of Limitation Act, Cap. 89 is not in any way applicable to the applications for Bill of Cost, which 5 the Advocates Remuneration Order, 2015 governs. He said that Order 4 of the Advocates Remuneration Order, 2015, is a specific provision of the law governing the time to file applications for Bills of Costs in the United Republic of Tanzania. To cement his position, he cited the decision of Dorin Rugalabamu versus Kweyamba Joseph Lwempisi, HC; Civil Reference No. 02 of 2019, (Unreported) at pages 4, 5, and 6 of the decision. It was his prayer that this court quash and set aside the decision of the Taxing Master, Hon. Aziza Mbadjo in with the Respondent’s Taxation Cause No. 000007871 of 2024 (which was firstly known as Taxation Cause No. 22988 of 2024), on the point of law and fact that, she had no jurisdiction to hear and determine the same. On the second point, Mr. George submitted that the Respondent filed Taxation Cause No. 000007871 of 2024 (formerly known as Taxation Cause No. 22988 of 2024), which was deemed excessive. He stated that the total claimed amount in Civil Case No. 228 of 2022 between the parties herein was not more than TZS. 1,100,000,000, and unfortunately, the Respondent’s Taxation Cause No. 000007871 of 2024 (which was formerly known as Taxation Cause No. 22988 of 2024) was filed to claim Bill of Costs at the amount of TZS. 72,685,000 to include TZS. 70,000,000 as 6 instruction fees, and TZS. 1,045,000 as court fees. He contended that, in her ruling, the taxing officer awarded the respondent TZS. 40,550,284/= as instruction fee, TZS.1,045,000/= as disbursement fees, TZS. 1,150,000 as attendance costs, TZS. 60,000= as transport costs for attending court to file documents and TZS. 250,000/= as costs for filing the bill of costs and prosecuting the bill of costs. This amounts to the total of TZS. 43,055,284 be as total amount taxed off. He said it is unfortunate that the decision in Taxation Cause No. 000007871 of 2024 is tainted with illegality by this Honourable Court in entertaining the Respondent’s application for an excessive claim, as the officer awarded the amount of TZS. 43,055,284/= to be paid to the Respondent and disallow the amount of more than “one sixth” from the claimed amount of TZS. 71,440,000, exclusive of the Court fee of an amount of TZS. 1,045,000. Mr George went on to submit that Order 48 of the Advocates Remuneration Order, 2015 is obvious on excessive claim; when the Court disallows one sixth of the presented bill of costs. He added that Order 48 of the Advocates Remuneration Order, 2015 is very specific and straightforward, as it tends to restrict the Decree Holder or a party from presenting and filing an excessive bill of costs to the Court. An amount of 7 TZS disallowed the Respondent’s Bill of Costs TZS 28,384,716= from the presented amount of TZS. 71,440,000/=; this is more than one sixth of TZS. 71,440,000. It is very clear that one-sixth of TZS. 71,440,000/= is TZS. 11,906,666/=. To him, the taxation was too excessive, and Order 48 of the Advocates Remuneration Order, 2015 provides a clear direction on what was to be done. He implored the court to be guided by the decision in the case of John Momose Cheyo vs Stanbic Tanzania Limited, Commercial Reference No 72 Of 2018, High Court of Tanzania Commercial Division, at Dar Es Salaam Registry (Unreported) at pages 3,4, and 5, where it was stated that, In conclusion, he submitted that the taxing officer erred in law by allowing the amount of TZS. 43,055,284/= to be paid to the Respondent despite disallowing the amount of TZS. 28,384,716/= from the presented Bill of cost amount of TZS. 71,440,000/=, which is more than one sixth of TZS. 71,440,000/=. According to him, one sixth of TZS. 71,440,000/= is TZS. 11,906,666/= and thus the Respondent’s Taxation Cause No. 000007871 was supposed to be dismissed on the 5th November, 2024. It was his prayer that this Honourable Court be guided and take into consideration the cited authorities in deciding in favour of the Applicant in 8 this application. He further implored the court to quash and set aside the decision of the Taxing Master, dated 5th November, 2024, with costs. In response, Ms. Josepha contended that the Applicant's Advocate's argument that the taxing officer in Taxation Cause No. 000007871 of 2024 lacked jurisdiction is misleading and highly misconceived. She added that the argument that the application was filed out of time is baseless because the Respondent's application for taxation was filed within the prescribed time, in full compliance with the relevant provisions of Tanzanian laws. She quoted order 4 of the Advocate Remuneration Order 2015, specifically rule 4 and submitted that, in the light of the above referred provision of rule 4 of the Advocates Remuneration Order,2015, it is clear that the written law namely the Advocates Remuneration Order, 2015 expressed 60 days as period of time for lodging an application for taxation "from” date of an order awarding costs and that the same made/preferred by way of an application and thus, in computing whether an application for taxation was filed out of time or not a resort should be made to interpretation of expression "from" under section; “60(l)(b) of The Interpretation of Laws Act, CAP. 1, R. E, 2019, which provides: - "60. (1) In computing time for purposes of a written law: - 9 (a) ....N/A (b) where a period of time is expressed to reckoned from, or after, a specified day, that day shall not be included in the period." (Emphasis underlined). Ms. Josepha went on to submit that, read together with Rule 4 of the Advocates Remuneration Order, 2015, the above-quoted provision of the law makes it clear that the specified day is the date of an order awarding costs, which in this case is 12 th February 2024, when the judgment was delivered. Thus, in terms of the above quoted section 60(l)(b) of the Interpretation Act, the day 12th February 2024 has to be excluded in computing 60 days for lodging the application for taxation by way of bill of cost February 2024 + 31 days of March 2024 + 12 days of April 2024 which in total equals to 60 days which is within the prescribed period under rule 4 of the Advocates Remuneration Order, 2015 and therefore, it is submitted that the Respondent's application for taxation was filed within specified period. Concerning the allegations that the law of limitation Act does not apply to the time limitation governed by the Advocates Remuneration Order, 2015, she said the same is highly misconceived and without merit because, the law is clear that the period of limitation of 60 days prescribed under rule 4 of the Advocates Remuneration Order, 2015 is 10 also subjected to the requirements of the Law of Limitation Act, Cap. 89 R.E. 2019 under section 46 of the Law of Limitation Act, Cap. 89 R.E. 2019. She had the view that, in computing time limitation for lodging the application for taxation, the exclusions of the periods mandated under the Law of Limitation Act, Cap. 89, are also applicable in this case and exclude the day from which the period of limitation has to be computed, which in this case is the date of an order awarding costs, which is 12 th February 2024, in determining whether an application for taxation was filed out of time or not. Based on the above submission, she maintained that the Respondent’s application for the bill of cost was filed within the prescribed period of 60 days. On the second point, Ms. Josepha submitted that Honourable Deputy Registrar was legally correct in exercising her discretion to grant costs in favour of the Respondent in the amount of TZS. 43,055,284/=. In her view, the same was granted since the proviso to rule 48 of the Advocates Remuneration Order allows and gives mandate to the taxing master to exercise their discretion to disregard/exclude the instruction fees in computing one sixth of the amount of the bill of costs. She quoted the proviso and submitted that the consequences apply to the other amounts, which are taxed at the discretion of the taxing Officer, and not 11 to disbursements and instruction fees where an advocate is engaged at a fee. She cited to the court the case of Vijay Sha ntilal Chohan vs Abdul Shakoor Halday (Reference 14 of 2019) [2020] TZHC 3670 (27 October 2020) where the High court of Tanzania at page 13 held that the taxing officer has the discretion to disregard the instruction fees while computing the one sixth and no party has the authority to question such discretion of the taxing officer. In the light of the above-quoted authorities, she submitted that it is clear for this Court to agree with Applicant's Advocate's argument that the amount awarded is excessive, the amount disallowed must be calculated above one-sixth of the amount claimed, excluding the disbursements and instruction fees. She contended that on page 10 of the Applicant's Advocate's written submission, the applicant based his calculation on the total amount of the bill of costs without excluding disbursement and instruction fees, which is wrong in contravention of the above-cited authorities. On the other hand, it is clear that the taxing Officer excluded instruction fees and thereby correctly exercised her discretion. Thus, the Applicant herein has no authority to question the decision of the honorable Deputy Registrar granting the amount of TZS 43,055,284/= to the Respondent. 12 In winding up, she submitted that the Taxing Officer properly exercised her discretion by excluding the instruction fees in calculating one-sixth and thus, she correctly awarded the sum of TZS. 43,055,284/= in full compliance with the provisions of Order 48 of the Advocates Remuneration Order, 2015. She therefore implores the court to make a finding and hold that the Applicant's grounds in support of the Application for reference are highly misconceived and without merit. On that account, it was her prayer that the Applicant's application for reference be dismissed with costs. In a short rejoinder, Mr. George almost reiterated what he had submitted in his submission in chief. I have carefully considered the affidavit, counter affidavit, and submissions for and against this application, as well as the relevant documents attached to the present application. I find that the calling issue for determination is whether the application for reference is meritorious. In considering the merit or otherwise of this reference, I will address each point as raised by the applicant and responded to by the respondent. I will begin with the first complaint, in which the applicant alleges that the application was filed outside the time limit. 13 Admittedly, both parties are in consensus that an application for taxation must be filed within 60 days from the date of the decision, as per Order 4 of the Advocate Remuneration Order. For clarity, the order states; “A decree holder may, within sixty days from the date of an order awarding costs, lodge an application for taxation by filing a bill of costs prepared in a manner provided for under Order 55”. Parties are disagreeing on when the 60-day prescribed time starts to run. Applicant claims that the date of the decision is inclusive, while the respondent has the opinion that the day of the decision is excluded. To disentangle parties, I find it apt to find interpretation of the word from the date …as interpreted by the Interpretation of Laws Act, Cap 1 Section 60 of that Act provides that; “In computing time for the purposes of a written law- (a) NA (b) where a period of time is expressed to be reckoned from, or after, a specified day, that day shall not be included in the period”; The provision is unambiguous; unless it is changed, the word “from " means the day of the decision is excluded. Reverting to this application, the decision awarding costs to the respondent was delivered on 12 February 2024, and the application for taxation was filed on 12 April. 14 Applying the exclusion of the date of decision as per section 60 of the Interpretation of Laws Act, it is apparent that the application was filed on the 60th day, thus within the prescribed time. Therefore, the applicant’s allegations that the application for bill of costs was filed outside the specified time are baseless. Furthermore, my review of the record reveals that the issue of time limitation was raised and well addressed by the taxing officer. Next for consideration is the allegation that the taxing officer acted in contravention of Order 48 of the Advocate Remuneration Order. For better understanding, I find it reasonable to quote the same hereunder; “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. The provisions of Order 48 are clear and straightforward; the rationale behind this provision is to prevent the Decree Holder or a party from presenting and filing an excessive bill of costs to the Court. It prohibits the presentation of excessive claims and provides for legal consequences if an excessive claim is presented in the bill of costs. 15 Further, the provision grants the taxing officer the discretion to determine whether to include the Instruction fee in the computation of the one- sixth threshold. It should be noted that the phrase "shall not be entitled to the costs of such taxation used in order 48 quoted above indicates that the entitlement to recoup taxation costs is contingent upon the proportion of the bill disallowed, thereby deterring the submission of inflated or excessive claims and effectively creating a punitive measure against parties attempting to claim excessive amounts. Given the inflation of the bill of costs, the respondents ought to have been held accountable for the consequences. This court enunciated this sound principle in the case of Puma Energy Limited & Another vs Hawa Mgonja Nghumbi & Kisaka Ramadhani Ghumbi (suing as joint administrator of Ramadhani H. Nghumbi) & Another, Civil Reference No. 17286 of 2024. In his bill of costs, the respondent presented a total bill of 72,685,000/= for taxation, of which 70,000,000 was instruction fees and 2,490,000 as Court fees. The court fees item was not contested and was awarded as presented, while other items were contested. Only TZS 43,055,284/= were awarded; the amount taxed off was TZS 28,384,716/=. 16 For clarity, the respondent was awarded TZS. 40,550,284/= as instruction fee, TZS. 1,150,000 was attendance costs, TZS. 60,000/= as transport costs for attending court to file documents and TZS. 250,000/= as costs for filing and prosecuting the bill of costs, which brings the total amount to TZS. 43,055,284/=. Therefore, one-sixth of the entire bill of costs, excluding court fees is TZS 11,939,999 = approximately TZS 12,000,000). As mentioned above, the amount disallowed was in Tanzanian Shillings (TZS)— 28,384,716/=, which is above one-sixth of the claimed amount. The respondents allege that the taxing officer excluded the instruction fee in calculating the sixth of the amount claimed. With due respect, I do not accept that assertion, as it is not reflected in the record. It's my conviction that, at the end of the assessment, the Taxing Officer should have evaluated whether the disallowed amount met the criteria set by Order 48 of the Advocate Remuneration Order. In my respective view, the taxing master was obligated to conduct a final evaluative step to determine whether the total awarded bill conformed to the criteria in Order 48, whether the disallowed amount goes beyond the one-sixth of the claimed bill, and whether to exercise her discretion under the proviso to Order 48 to exclude instruction fees from the computation of the one-sixth rate. Failure to conduct this critical 17 evaluation is a significant oversight. The records of this application reveal that the taxing master did not adequately incorporate relevant provisions of Order 48 into her decision-making process, and no reason was given as to why the respondents were awarded the amount after the taxing master had disallowed over one-sixth of the billed costs. Given this position, I find that, since the amount disallowed exceeded one-sixth of the claimed costs in Bill of Cost 7871 of 2024, the respondent was not entitled to recover any fees associated with this matter. Therefore, the second ground has merit. I thus quash and set aside the Taxing Master's decision. The application is, thus, granted. It is so ordered accordingly. No order as to costs. H.R. MWANGA JUDGE 27/03/2025 COURT: Ruling delivered in chambers today, 27th day of March, 2025, in the presence of Mr. Robert George-adv for the Applicant and Ms. Josepha Tewa-adv for the respondent. 18 H.R. MWANGA JUDGE. 27/03/2025 19