RULING OF JANE MWAMWINDI VS BURTON TWISA

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MBEYA SUB – REGISTRY AT MBEYA LAND REFERENCE NO. 7 OF 2023 CASE REFERENCE NO. 20230912000526321 (Originating in Bill of Costs No. 97B of 2023 in the district land and housing tribunal for Mbeya at Mbeya) JANE JUMANNE MWAMWINDI .................................................. APPLICANT VERSUS BURTON TWISA ..................................................................... RESPONDENT RULING Date of hearing: 24/5/2024 Date of ruling: 24/7/2024 NONGWA, J. The applicant has filed this reference praying for this court to intervene and quash decision of taxing master in Bill of Costs No. 97B of 2023 for being ultra vires. The application is made under order 7(1)(2) of the Advocate Remuneration Order, 2015 and supported by the affidavit of the applicant. It is resisted by respondent through the counter affidavit of Mr. Hasan Ramadhan Gyunda, counsel for the respondent. It is alleged that parties had Application No. 97 of 2023 filed by the applicant herein which ended after the respondent has successfully raised preliminary objection as a result the respondent successfully filed bill of cost of Tsh. 3,198,000/=. Further that the applicant was ordered to pay 1 the taxed amount within fourteen days without execution being filed. It is averred that the taxing master did not consider requirement of the law and was biased. As stated earlier these averments were disputed by the respondent. When the reference was called for hearing on presence were Mr. Hasan Gyunda and Mr. Banarba Pamboma, both learned counsels, parties prayed to argue the application by filing written submission. Counsel for the applicant faults the taxing officer for awarding the amount claimed on ground that the matter ended on preliminary objection, there was no full hearing. The counsel said it was taxed without considering principles under the Advocate Remuneration Order. He cited the case of Strategies Insurance Tanzania vs Salaaman Health Centre, Civil Reference No. 5 of 2023 [2023] TZHC 19099 (28 June 2023; TanzLII) in which the court stated that costs should not be excessive or oppressive but only such as are necessary for the conduct of the litigation. He added that taxing master contravened rule 46 of the advocate remuneration order which requires costs to be taxed on prescribed scales. Another complaint was that the taxing master ordered payment of taxed amount to be made within fourteen days while there was no application for execution. The counsel argued that it was unprocedural 2 and led to injustice to the applicant. He added that taxing master awarded excessive claim in contravention or order 48 of the Advocate Remuneration Order, he supported the argument with the case of Regional Commissioner of Shinyanga vs Bernard Msonga Sizasiza, Civil Reference No. 1 of 2019 [2020] TZHC 1006 (8 May 2020; TanzLII) Regarding taxation principles, counsel for the applicant submitted that the law is that costs should not be excessive and should not act a a punishment to the looser or to enrich the successful party. He submitted that the taxed amount was too high and it was awarded as punishment to the appellant. The argument was supported by citing the case of Rose Mkeku (the Administratrix of the estate of the late Simon Mkeku) vs Parvez Shabbirdin, Misc. Application No. 89 of 2021 [2022] TZHC 3037 (5 May 2022; TanzLII). From the above, counsel for the applicant prayed the application to be allowed. In response to the above, counsel for the respondent submitted that taxation is done in accordance with the dictates of the law particularly ninth schedule to the Advocate Remuneration Order more so after considering it was not heard to its finality. The case of Joreth Ltd v 3 Kigano and Associates [2002] 1 EA 92 in which the court stated value of the subject matter must be considered. On requiring the amount to be paid within fourteen days, it was submitted that the taxing master had that discretion and the case of Tanzania Rent A Car Limited vs Peter Kimuhu, Civil Reference No. 9 of 2020 [2021] TZCA 103 (6 April 2021; TanzLII) was cited. On failure to consider taxation principles, it was reply from Mr. Pamboma that the taxing master considered complexity of the case, research findings and time spent in the case. He added that the amount was not too high in this matter. Finally, the counsel prayed this reference to be dismissed. Having considered the application document and rival argument, the only issue for determination is whether the application is meritorious. Matters under paragraph 4 and 6 will be resolved conjointly and that in paragraph 5 alone. Currently, manner of presenting bill of costs, rates, scales and all matters pertaining to bill of costs are governed by the Advocate Remuneration Order, 2015 which came in force on 17th July, 2015 through G.N 263 of 2015. For purpose of contentious proceedings, the law imposes the duty to charge at the rate prescribed under ninth to twelve schedules. The rule prescribes instruction fees per amount, for 4 appeal, application, attendance, service, per folio etc. Instruction fees is within the discretion of the taxing officer by having regard to the care and labour required, the number and length of the papers to be perused, the nature or importance of the matter, the amount or value of the subject matter involved, the interests of the parties, complexity of the matter and all other circumstances of the case as it may be fair and reasonable. To that end 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 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; firstly, 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 5 & Another, Civil Application No. 576 of 2018 [2021] TZCA 8 (11 February 2021; TanzLII), 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 Board of Tanzania, Civil Reference No. 4 of 2006 [2009] TZCA 57 (10 February 2009; TanzLII) to mention few. Other costs like attendance of the party is determined based on distance travelled 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/=. Other costs are actual and must be proved by production of evidence unless dispensed by the taxing officer. In this reference the applicant attacks award of Tsh. 3,198,000/= without specifying if it is instruction fee, attendance costs or otherwise. Under paragraph 4 it is deposed that the matter ended on preliminary objection raised but the amount was taxed at Tsh. 3,198,000/=. In submission it was stated that taxing master did not take into account rules of taxation. I presuppose that this was instruction fees, whether the matter ended on preliminary objection raised or not, I do not subscribe to the view that less energy was used in arguing preliminary objection for a 6 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 self adequately in all respects’ Depending on circumstances of the case, when the case is finalized on preliminary stage, the taxing master has discretion to award less instruction fees. In this matter the record is silence on the value of the subject matter for purpose of computing payable instruction fee and see if it was taxed at full amount or less, thus this court is left in dilemma whether to interfere or not. As it is clear that the amount of Tsh. 3,198,000/= is for the whole bill of costs, this complaint must fail. The other complaint is that the applicant was ordered to pay the taxed amount without there being application for execution, counsel for the applicant did not cite any authority to support that stance. I have read the Advocate Remuneration order and found no provision which prohibit taxing officer from making the order of the taxed amount to be paid within 7 certain time and directing that taxed costs must be paid upon application for execution. Thus, I dismiss this complaint. From the discussion above this application has no merit and is hereby dismissed with costs. V.M. NONGWA JUDGE 24/7/2024 DATED and DELIVERED at MBEYA this 24th day of July, 2024, in presence Mr. Hassan Gyunda for Respondent and the plaintiff in person. V.M NONGWA JUDGE 8