Godson

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BABATI CIVIL REFERENCE NO. 15555 OF 2024 (Originating from Misc. Application No. 115 of 2023, District Land and Housing Tribunal for Babati at Babati) GODSON GWASAN.................................................................. APPLICANT VERSUS NORBETH MALIHELA............................................................RESPONDENT RULING 17th September & 1st October 2024 D. C. KAMUZORA, 3 . The applicant has preferred the instant application under Order 7(1) of the Advocates Remuneration Order, 2015 GN No. 263 of 2015, seeking for this court to be pleased to call the file in Taxation of bill of costs No. 115/2023 and satisfy itself as to the appropriateness in taxing the said bill of costs. The application was supported by an affidavit sworn by the applicant himself no counter affidavit was filed by the respondent. Briefly, as it could be gathered from the record, the respondent successfully sued applicant before the District Land and Housing Tribunal for tribunal Babati which further awarded the respondent the costs of the Page 1 of 9 matter. The applicant unsuccessfully appealed to this court against the decision of the trial tribunal. Subsequently, the respondent files Misc. Application No. 115 of 2023 claiming a total sum of TZS 19,356,000/= as costs he incurred in prosecuting Land Application No. 16 of 2021. After hearing the parties, the taxing master's awarded the respondent the sum of TZS 12,604,400/=. The taxing master decision irked the applicant hence, made reference seeking for this court to assess the appropriateness of the costs taxed. When the application was called for hearing Mr. Festo Jackson learned advocate represented the applicant while the respondent was represented by Mr. Pascal Peter learned advocate. In his submission in support of the application, Mr. Festo having adopted the affidavit in support of the application, faulted the taxing master for contravening the governing taxation. He argued that since the matter ended at this court then the bill of costs ought to have been filed before this court and not the trial tribunal. To buttress his argument, the learned advocate referred the case of Maximilian Rwabulala vs Emilian Kalugala & another [1987] TLR 2. Page 2 of 9 On further submission, the learned advocate faulted the taxing master for taxing the costs of moving stones from the suit land as well as compensation for the respondent's failure to use the suit land. He argued that it was improper for the taxing master to tax the said claims since costs for the case are restricted to the costs incurred in prosecuting the case which include, accommodation, food, transport, advocate fees and other court costs if any. He therefore urged the court to interfere by quashing and setting aside the decision of the trial tribunal with costs. Since the respondent did not file counter affidavit, he was precluded from arguing on facts rather on legal issues. In reply Mr. Pascal argued that it is not correct to argue that it is only the High Court which has powers to deal with taxation. He submitted that the bill of costs was properly instituted before the trial tribunal since it originally heard the case and issued an order restraining the respondent from interfering with the suit land as well as costs of the suit. Having gone through the parties' rival submissions and the record and before going to the merits of the matter, the court had to satisfy itself on whether the matter was filed within prescribed period of time. It is on record that, the bill of costs was filed on 13/10/2023 while the decision granting the Page 3 of 9 costs was delivered on 22/11/2022 and no record was brought to this court regarding the extension of time. Upon the court inviting the parties to address it on that aspect, they both agreed that the respondent sought before the trial tribunal for extension of time and the same was so granted. Since it was so done in a separate case file, an order for the said file to be availed before this court was issued but until when this ruling was composed, the records were yet to be availed. But in considering that both parties agreed that there was an order of the trial tribunal extending time, this court will proceed on determining the application on merit. In his submission, the learned advocate for the applicant raised a concern that the bill of costs was wrongly filed before the trial tribunal instead of this court which determined Land Appeal No. 9 of 2023 arising from the trial tribunal. Reference was made to the case of Maximilian Rwabulala vs Emilian Kalugala & another (supra). On this argument, I am of the considered view that the decision referred by the learned advocate for the applicant is distinguishable with the circumstance of the application at hand. In that decision, the bill of costs on the matter which ended at the high court was filed before the district court instead of filing it before the registrar of the high court. In the matter hand, although there was an appeal filed before this court, the bill of costs filed by the respondent was in respect of Land Application No. 16 of 2021 which was heard and determined by the trial tribunal. In that regard, the bill of costs was properly filed before the trial tribunal for it was not intended for costs in Land Appeal No. 9 of 2023. Back to the merits of the application at hand, the learned advocate for the applicant faulted the taxing master for granting costs which did not arise from the conduct of the matter. I have carefully gone through the ruling and each item in the bill of costs presented before the taxing master. As I have pointed before, the total amount of costs claimed by the respondent was TZS 19,356,000/= but the amount taxed was TZS 12,604,000/=. I have noted that, the learned taxing master in awarding the amount of tax did not disclose reason for his decision I will revisit each item and assess if it was properly taxed. The first group covers the claims under items 1 to 16 in which the respondent claimed a sum of TZS 47,000/= as costs for attending the case which cover transport costs, accommodation and meal per each item. The learned advocate for the applicant did not complain on such amount. The 8th schedule, item 23 of the Advocate Remuneration Orders prescribes TZS 50,000/= as attendance fee. I therefore find the claim of TZS 47,000/= not Page 5 of 9 I on the higher side. However, I noted that under item No. 8 of the bill of costs, the respondent claimed TZS 47,000/= being transport costs by bus as well as meal and accommodation for attending the case on 6/6/2022 but upon going through the record, on 6/6/2022 the respondent was absent. The learned taxing master therefore erred in awarding such amount. I therefore find that the amount of TZS 47,000/= awarded on item No. 8 was supposed to be taxed off. Thus, out of 752,000 taxed only TZS 705,000/= ought to have been taxed by the taxing officer. On the disbursements, the respondent claimed TZS 60,000/= as filing fees for the application before the trial tribunal. Such amount was not contested thus, the taxing master was correct in awarding such amount. On the disbursement costs, the respondent also claimed a sum of TZS 120,000/= as costs for visiting the locus in quo. I have gone through the record and nothing shows that such amount of TZS 120,000/= was contested by the applicant. The same was therefore properly taxed. Likewise, the claim of TZS 60,000/= as costs for proceedings, was not contested thus I see no reason to interfere with its award. What was contested are; TZS 300,000/= being costs for shifting concrete stones from the suit land and TZS 464,000/= being an amount paid Page 6 of 9 to the broker to remove the applicant from the suit land. Going through the submission, there is no evidence to support such costs. It well known principle that costs for broker. There is no explanation as to when the costs were for removing stones were incurred. If the same was incurred as part of execution process, it was expected for the court broker to include such cost in execution costs and issue receipt as supporting evidence for the award of such costs. Since there is no evidence to that effect, the claim for TZS 300,000/= as costs for shifting concrete stones from the suit land and TZS 464,000/= as amount paid to the broker ought to have been taxed off. The amount of TZS 500,000/= was claimed as cost used to buy the pipes which were damaged by the judgment debtor. The question is whether such claim could be raised in the bill of costs. I agree with the counsel for the applicant that such costs stand as compensation and that ought to have been specifically awarded in the decree. It cannot be raised in the bill of costs therefore, such amount should have been taxed off. Equally, the respondent's claim of TZS 500,000/= as costs for purchasing a water pipe cannot stand. This amount was wrongly included in the bill of costs for it was supposed to be raised and determined in the main case. The same ought to have been taxed off Page 7 of 9 The respondent also claimed a sum of TZS 600,000/= being advocate's costs for preparation of Application No. 16 of 2021.1 have gone through the record in respect of Land Application No. 16 of 2021 and nothing shows that the respondent was assisted in either drafting the documents or received any legal service. The record shows that the respondent appeared in person and the said application does not show if it was prepared by an advocate. That was also noted by the taxing officer and the amount of TZS 600,000/= was taxed off. The respondent also claimed a sum of TZS 500,000/= being costs for preparation of the bill of costs. Basically, the amount for preparing bill of costs is within the discretion of the taxing officer and the law does not require the applicant to insert the amount thus, there was an error in indicating such amount in the bill of costs. However, such amount was contested for being on the higher side. Despite such error, the records show that the respondent was assisted Mr. Pascal Peter, advocate in preparing the bill of costs thus amount of TZS 500,000/= taxed is reasonable. The last item in the bill of costs was a sum of TZS 16 million as damages for not using his land four years consecutively. The learned taxing master in his ruling readily noted that there was no proof for the respondent Page 8 of 9 to establish such claim but he believed that the respondent suffered damage and he awarded the respondent a sum of TZS 10 million as damage for failure to utilize his land within four years. I am of the settled view that, in awarding such amount the taxing officer seriously erred since that amount was not costs incurred in the prosecution of Land Application No. 16 of 2021. If the respondent had such claim, he ought to have included it in the substantive claim in the main application. I have gone through the judgment and decree in Land Application No. 16 of 2021 there is nowhere such relief was pleaded by the respondent therefore, the award of TZS 10 million was wrongly made. From the above discussion the respondent is only entitled a sum of TZS 1,445,000/= as bill of costs. The sum of 11,159,000/= awarded by the learned taxing officer ought to have been taxed off. The application is therefore allowed by substituting the award of 12,604,000/ with the award of TZS. 1,445,000/=. In the circumstance, I order each party bear its own costs. DATED at BABATI this 1st f October 2024. D. C UZORA JUDGE Page 9 of 9