LAND REFERENCE NO

IN THE HIGH COURT OF TANZANIA IN THE DISTRICT REGISTRY OF MTWARA AT MTWARA LAND REFERENCE NO.1 OF 2022 (Arising from Taxation Cause No. 9 of 2020) Issack Issack Mtenda ..... . ,... ........... Applicant Versus 1. Habiba Ahamadi Nangulukuta 2. Hawand Hdmisi 3. Hamisi Salumu Malimusi (Administrator of the estate of the late Habiba Ahmadi) Respondents 4. Hassan Ausi Mchopa (administrator of the estate of the late Hassani Nalino) RULING Date of last order: 22.08.2023 Date of Ruling: 27.11.2023 Ebrahim, J.: The Applicant has filed the instant application praying for the following orders: Page 1 of14 a) This honourable court be pleased to decide on the several points of law arising out of the Taxation proceedings and the decision thereof by Hon. Msumi, Taxing Master dated 6th September, 2022; b) This honourable court be pleased to set aside the decision and orders of the Taxing Master dated 6th September. 2022 in Taxation Cause No. 9 of 2020 and uphold the Taxation charged by the Applicant. c) Costs of this application be provided for. The application has been preferred under the provisions of section 7(1) and (2) of the Advocates Remuneration Order 2015, GN 264 of 2015. The Application is supported by the affidavit of Issack Issack Mtenda, the Applicant. According to the averments of the Applicant in his affidavit, he is contesting the taxing off of Tshs. 32,118,212/- and claims that the remaining taxed sum of Tshs. 11,733,000/- is inefficient and that the taxing master has taxed less that the required scale under the law. He has thus listed five points for consideration that the taxing master Page 2 of 14 failed to consider properly the scales guarding the award of cost; failure to consider the acknowledged complex suit and research done hence awarding 7% as instruction fee; and failure to consider that the Applicant and his advocates are residing in Dar Es Salaam. Other stated points for consideration are that the taxing officer disregarded the receipts attached to the bill of costs on the reason: that it was hard for him to follow as they were not labeled; and that the taxing master misdirected himself to disregard the instruction fee already paid by the decree holder as evidenced by EFD receipt (VRN) No. 400263192 VAT inclusive. The IV 2rd and 3rd Respondents filed a counter affidavit and vehemently challenged the claim by the Applicant and argued that the taxing master correctly taxed off Tshs. 32,118,212/- as it was unreasonable and the awarded Tshs. 11,. 733,000/- to be paid by the 1st, 2nd and 3rd respondents was justified. They averred further that the taxing master awarded Tshs. 11,733,000/- because of the complex nature of the suit. They averred also that there are no legal points to e vi d e n 11 h e i n s ta n t ref ere n ce. Page 3 of 14 As for the 4th respondent he filed counter affidavit to substantiate that he is not a party to the cost claims, rightly so and it was equally observed by the taxing master. Accordingly; the taxing proceedings do not concern the 4th respondent. This reference was argued by way of written submission. The applicant was represented by advocate Roman Lamwai whereas the respondents appeared in person, unrepresented. I shall not recapitulate the submissions by the parties’ counsels but shall refer to them in the course of addressing substantive issues. Mr. Lamwai argued on the first issue that the cost awarded by the taxing master from item 2 to 29 taxed at Tshs, 10,000/- (paragraph 5 (a) of the affidavit) was less than what the scale provides. He added that those costs were for dppearance/attendance in court for mention or hearing or mediation proceedings. He referred the court to the 8th Schedule to the Advocate Remuneration Order GN 264 of 2015 whereby as per item 3(a), the attendance is Tshs. 50,000/- per 1 5 minutes. Page 4 of 14 Responding on the issue, counsel for the Respondents argued on me discretionary powers of the taxing master to vary or allow the claimed amount depending on the nature and the circumstances of the case. He submitted that the respondents are peasants and widows hence it is unfair to award Tshs. 50,000/-. In addressing this issue I would like to begin by stating the -principles set by law in taxation of bill of costs. Verily, costs are awarded at the judicial discretion of the taxing master in line with the set law and consideration of various circumstances including the complexity of the case, the value of the subject matter, time spent etc. Further, taxation of bill of costs is governed by the Advocates Remuneration Order, GN No. 263/2015. Accordingly, Rule 46 of GN No. 263/2015 provides for the manner upon which the bill of costs is to be taxed. It reads: “46. All bills of costs shall be taxed on the prescribed scale, unless a Judge of the High Court, for special reasons to be certified, allows costs in addition to the costs provided by the scale or refuses to allow costs or allows costs at a lower rate than that provided by the suae' [Emphasis is mine]. Pdgf/ 5 O 14 From the above position of the law it follows that in exercising his/her Judicial discretion, the taxing master is governed by the prescribed! scales set by law unless otherwise and there must be certified reasons for such deviation. Again, the law i.e., item 3(a) of the 8th Schedule to the Advocate Remuneration Order GN 264 of 2015 provides for the attendance in ordinary case per 15 minutes or part thereof to be Tshs, 50.000/ It reads “Attendance: - (a) In ordinary cases, per 15 minutes or part thereof; 50,000/-“. Again, from the above, I can safely say that the law has not provided a distinction as Io whether the set scale of Tshs. 50,000/- per the 15 minutes is for mention, hearing, 1st PTC or mediation. What I cuCa gather, the provided scale is based on time spent. In this case, the taxing master taxed down items 2-29 to Tshs. 10,000/- On this i visited the record and found that the Applicant and his advocate appeared for the first time on 07.02.2019 as the court Page 6.of 14 records shows that on 16.11.2018 all parties were marked absent. The matter was scheduled for mention on 13.12.2018 where it was only the 3rd Plaintiff (3rd Respondent) and the 1st Defendant (the 4tn Respondent) who entered appearance. The Applicant's advocate was recorded for the time to be in attendance on 07,02.2019. As per the rule of the thumb court records prevails. On 07.02.2019 while the case was called for mention, the matter proceeded right away to Is' PTC and there was no any mediation that was conducted on that date. Thus, I see no special proceedings for the same to be taxed at Tshs. 70,000/-. Mediation was conducted on 21.02.20'9. Again, according to the court records, all parties: were marked absent on 07.10.2019. Thus, the insert in the bill of cost for attendance on that date is not correct. All parties were again marked absent on 25.06.2020. In that case, save for the four occasions that I mentioned above that the records of the court did not register the attendance of either the Applicant or his advocate, I see no viable reason for the taxing master to tax them off to Tshs. 10.000/-. There was no any uncertainty and unsubstantiated inconsistences as claimed by the taxing master as the records in court file concerning the attendance Page 7 of 14 of the Applicant/his advocate are clear and unamblguoio. [he argument by the counsel for the respondents that ths clients oe ordinary farmers: does not hold water as it is not a valid reason to curtail the Applicant of his costs that he legally and justifiably incurred - see the cited case of Wambura Chacha Vs Samson Chorwa [1973] LRT No. 4 where it was held that: "The purpose of taxation is to reimburse the successful party and not to punish the looser or enrich the successful" [emphasis is.mihej. From the above therefore, I set aside the taxed amount of Tshs.10,000/- from item 2 to 29 of the Plaintiff's Bill of Cost and confirm item 4 to 15, 1 7 to 22 and 24 to 29 to be taxed at Tshs. 50,000/- each as per the scale set by the law. Thus making a total of Tshs. 1,200,000/- Counsel for the Applicant again submitted on the issue of failure by the taxing master to award instruction fees to nearest 7% much as he acknowledged that the suit was complex which consumed time and serious research; and whether the Taxing Master misdirected himself on the instruction fee already paid by the decree holder os exhibited by EFD receipt. He cited the case of George Mbuguzi and Another Vs Alphonse Masikini [1980] TLR1 where some factors for consideration in page 8 of 14 assessing instructions fees were discussed. Among the foe tors are the value of the subject matter, amount of research undertaken, the Complexity of the case etc. In response, counsel for the respondent had nothing much to argue as his entire submission mainly focused in bringing to the attention of the court the discretionary powers of the taxing master in taxing bill of costs. He emphasized the need for every case to be determined in its own circumstances. As alluded earlier and as per the principle established in Ine above cited case of George Mbuguzi and Another Vs Alphonse Masi kin I (supra) which I associate myself with, there are factors Io be considered in assessing bill of costs by the taxing master. The same include but not limited to complexity of the case, value of the subject matter, time spent and research done to name but a few. I wish to repeat here that the purpose is to award the advocate for the work done in preparation and conduct of the case and not to enrich him or the winner - see the cited case of Wambura Chacha (supra). Page 9 of 14 Equally the same, as a matter of principle, the award of instruction fees is exclusively within the discretion of the taxing master and the court in most cases would not interfere with his/her assessment unless it believes that the taxing master did not exercise the discretion judiciously or acted on a wrong principle or wrong consideration - see­ the cases of Premchand Raichand Ltd and Another Vs Quarry Services East Africa Limited and Others (1972) 1 EA 162 (CA- Kenya); Attorney General V Amos Shavu. Taxation Reference No. 2 of 2000(HC) which was cited with authority in the cited case by the Applicant’s counsel of Rose Mkeku/The administratrix of the estate of the late Simon Mkeku) Vs Parvez Shabbirdin Misc Land Application Case No. 89 of 2021; and the case of Haji Athumani Issa Vs Rweikama Mutafu [1992]; to name but a few and I subscribe to them dll. In Haji Athumani Issa (supra) which Was also cited by the counsel for the Applicant in his submission, this court had the following to say in expressing its reluctance to interfere with the peculiar discretion of the taxing master: Page 10 (X 14 “The law about Taxation is this: That judges will in most cases not interfere with questions of quantum, because these are regarded as matters with which the taxing master is particularly fitted to deal with. But and that is a big ‘but’, the court could interfere if the taxing master clearly acted unjudicially” [emphasis is mine] The taxing master in assessing the instruction fees said that given the nature of the issues in question before the court, the land matter was not simple. He later qualified his assertion by saying that much as he said the matter was not simple but it was not complex to deserve a maximum scale of 7%. It is the second assertion that counsel for the Applicant has raised an issue on the uncertainty and that the taxing master ought to have at least then tax the same at the medium scale of 5% and not 3%. Again, I perused through the proceedings on record and observed that the matter took almost two years from 2018 to 2020 to finalize, However, I would not say that the case could be termed as complex in a real sense. It was mainly time consuming of which I have already made rectification on the amount payable for attendance above. The issues for consideration were not that technical to involve much research but rather mostly depended on the preponderance of Page 11 ol 14 evidence. In that sense, I would agree with the taxing master that much as the matter was not so simple but it was also not complex. It was an ordinary case deserving a bit more effort in collecting evidence. For that I believe the suggested! 5% at the medium scale would serve the purpose. I accordingly set aside the taxed amount of 11,733,000/- and award TZS 19,000,000/ exclusive of VAT. The evidence of EFD receipt is not an exclusive determinant factor otherwise it would render the purpose of taxation nugatory. The fact that consultation fee has already been paid as exhibited by the receipt, is a prerogative between an advocate and his client but does not bind the court to apply the principle of taxation among which is for the court to take into consideration that "costs should not be excessive or oppressive but only such are necessary for the conduct of the litigation" - Rahim Hasham Vs Alibhal Kaderbhai (1938) 1 TLR 676. I shall respond to the issue of disregarding the receipts and the fact that the Applicant are residing in Dor Es Salaam together. Page 12 a( Certainly in prosecuting and defending a case expenses are inevitable. Nevertheless, the same should be reasonable m consideration of the fact that litigants comes from different walks of life. Otherwise, people with low income should not be discouraged to institute legal proceedings to claim for their rights against those with higher financial ability. In that sense, the law i.e., the proviso of 8th Schedule to the Advocate Remuneration Order GN 264 of 2015 - Item 3(g) provides for scale for a journey from home of not less than seven hours to be Tshs. 20,000/-. As the Applicant and his advocate were coming from Dar Es Salaam, the scale set by law fits the circumstances of this case. For that matter, I award the Applicon; T2S 1,920,000/- as per the statutory allowance for their journey on 24. times they appeared in court as per the court records. I also award the reimbursement fee of Tshs. 30,000/- (item 31) for filing Written Statement of Defence. As to the complaint that the taxing master erred to disregard the receipts attached; I must state at the outset that the law at first place states that receipts or vouchers shall be produced in court at taxation if required by the taxing officer i.e., proviso of Order 58 of GN 264 of Page 13 tV 14 2015. In that case had the taxing master wanted explanation of the receipts or labelling he would have summoned the parties and issue such directive. However, it would equally be prudent and easier for the court to peruse through the receipts had those receipts been clearly labelled to avoid such mishaps rather than lumping them together for the court to deal with them. All said and done, I set aside the taxed amount by the taxing master for failure to follow the prescribed scale and exercise of his judicial discretion and substitute with the following awards; 1. TZS. 1,200,000/- for attendance/appearance; 2. TZS 19,000,000/- VAT exclusive - Instruction fee; 3. TZS 1,920,000/- Journey allowance; and 4. TZS 30,000/- filing of pleadings. Page 14 of 14