JOEL DEEMAY 222Edited

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB- REGISTRY OF MANYARA AT BABATI REFERENCE NO. 3219 OF 2024 (Arising from Taxation Cause No. 130 of 2023, in District Land and Housing Tribunal for Babati at Babati) JOEL DEEMAY.............................................................. APPLICANT VERSUS KRISTIANI GWANDU.............................................. RESPONDENT RULING 26th June & 18th July, 2024 KAMUZORA, J. The applicant in this application is challenging the decision of the Taxing officer in the District Land and Housing Tribunal for Babati (the trial tribunal) in Taxation Cause No. 130 of 2023 which was delivered on 30th January 2024 taxing the costs at TZS. 1,672,000/=. The reason for the challenge is reflected in the affidavit to which the applicant claimed that the respondent violated the law by inserting a specific amount as costs for attending the taxation cause. That, the advocate also claimed for costs of attending Land Appeal No. 44 of 2021 before the trial tribunal Page 1 of 8 while he did not attend to defend the said appeal. The applicant claims that the award of TZS. 1,500,000/= as costs to the advocate was exorbitantly high amounting to arbitrary or wrongful exercise of the taxing officer's discretion. In his counter affidavit, the respondent raised an objection on the competency of the application claiming that the same is out of time. In response to the application, he claimed that the bill of costs was properly taxed. Both the preliminary objection and the application were argued simultaneously by the parties. In his submission, the applicant submitted that this application was filed on time as opposed to the respondent's contention that it is out of time. He urged this court to peruse the record and see that the application was filed on time. On the merit of application, he submitted that the amount taxed by the taxing officer contravened the rules governing taxation. That, the ruling is not clear on the amount taxed. That, it was also wrong to tax TZS. 1,000,000/= as costs for engaging advocate while the respondent was not represented by an advocate before the trial tribunal in Land Appeal No. 44 of 2021. He added that the taxing officer was not clear on the case to which the taxation was based. That, at a point he claimed that the bill of costs emanated from Mise. Application No. 75 of 2023 without Page 2 of 8 specifying the court and at another point he indicated that bill of costs emanated from Land Application No. 6 of 2020 from Ufana ward tribunal but again claimed that the costs emanated from land appeal without mentioning the case number. To him, the ruling is confusing thus, this court be pleased to set aside the whole ruling of the taxing officer. The applicant also submitted that the taxing officer awarded TZS. 500,000/= to the respondents advocate while he did not represent him in the bill of costs before the trial tribunal. He also faulted the trial tribunal order directing the applicant to pay the amount taxed within 14 days even before the time for filing reference had lapsed. That, it was wrong for the taxing officer to make execution order while there was no application for execution before him. In reply, the respondent submitted only on the preliminary point of objection that, the decision was made on 30th January, 2024 and the applicant was ordered to pay costs for Mise. Application No. 6 of 2020 and Mise. Application No. 75 of 2023 jointly within 14 days. That, since the application for reference was filed before this court on 22nd February, 2024, the applicant delayed in filing the application for reference thus, contravening Order 7 Rule 2 of the Advocates Remuneration Order, 2015 which requires an application for reference to be filed within 21 days. That, the applicant was bound to seek for extension of time under Order Page 3 of 8 8 (1) and (2) and since he did not obtain leave to file application out of time, the same be dismissed for being time barred with costs. Starting with a point of objection that the application is time barred, the law is very clear. Under Order 7 Rule 2 which was referred by the respondent, any party who is aggrieved by the decision of the taxing officer before the District Land and Housing Tribunal has to file Reference to the High court within 21 days. Going through the records, it is undisputed that the impugned decision of the trial tribunal by the taxing officer was delivered on 30th January, 2024. The record shows that the applicant applied for copy of the ruling on the same day. He was supplied with the copy after paying the tribunal's fees as per the receipt dated 12/02/2024. Since the application was filed on 22/02/2024, the same was within the time because the time could only be counted from the date he was supplied with necessary documents. I therefore find no merit in the objection raised by the respondent. Turning to the merit of the application, I have gone through the records and submission by the applicant. The taxation cause filed before the trial tribunal shows that the claim was for costs in Land Appeal No. 44 of 2021 and Mise. Application No. 75 of 2023 both before Babati District Land Housing Tribunal and costs for original case No. 6 of 2020 before Ufana Ward Tribunal. Thus, the claim by the applicant that it was not clear Page 4 of 8 as to the cases under which the bill of costs was preferred, is unfounded and the same were well specified in the taxation cause filed before the trial tribunal. The bill of costs contains several items specifying the purpose for the costs and the amount to be taxed. Items 1 to 8 the respondent claimed for transport costs, meals and accommodation, the amount of TZS. 50,000/= under each item making a total of TZS. 240,000/=. Under the disbursement item, the amount claimed refers fees for filing written statement of defence. There is also a claim for advocate's fees at the tune of TZS. 3,000,000/= and costs for attending taxation cause at the tune of TZS. 500,000/=. In his ruling, the taxing officer taxed TZS. 64,000/= for transport and food and TZS. 80,000/= was taxed for accommodation for items 1 to 8 and the rest of the amount was taxed off. Disbursement costs was taxed at TZS. 28,000/=. These costs were not contested in this reference and I find that they were properly taxed. The amount contested is TZS. 1,500,000/= which was taxed as advocate's fees. From the above observation, the applicant's claim is that the amount which was taxed by the taxing officer was not clear, is unfounded. The amount taxed was well indicated in the ruling of the taxing officer as well pointed out above. In fact, the taxed amount under items 1 to 8 and disbursement costs were not contested thus, I will not waste my time in Page 5 of 8 discussing them. The amount which is contested is TZS. 1,500,000/= taxed as advocate's fees. The question is whether, such amount was proper and reasonable under the law. It must also be noted that, the applicant claimed that the respondent was never represented by an advocate thus, the award was in contravention of the rules governing taxation. The records in Land Appeal No. 44 of 2021 and Mise. Application No. 75 of 2023 are clearly showing that the respondent engaged the service of the advocate for drawing the documents in all two cases. Mr. Paschal, advocate appeared representing the respondent herein one Kristian Gwangu in Application No. 75 of 2023. Thus, the applicant's argument that the respondent was not represented is wrong. There was legal representation, the law is clear that instruction fee has to be paid. The Advocates Remuneration Order, 2015, GN No 263 of 2015, prescribes costs payable for each service. Item 1 of the 11th Schedule of the above order governs instruction fees to advocate. Under Item 1 (I), costs payable for presenting or opposing an appeal is TZS. 1,000,000/=. Likewise, under item 1 (m) costs payable for unopposed application is TZS. 500,000/= while opposed application is TZS. 1,000,000/= The claim for instruction fee in this matter was in respect of Land Appeal No. 44 of 2021 and Mise. Application No. 75 of 2023. It is on record that Land Appeal Page 6 of 8 No. 44 of 2021 was determined on merits and Mise. Application No. 75 of 2023 was opposed hence, the amount of TZS. 1,500,000/= that was taxed for the two cases is reasonable. On the claim of TZS. 500,000/= as fees for defending bill of costs, it is on record that the respondent was represented by an advocate one Mr. Paschal Peter before the taxing officer. Thus, he deserved the award for fees in defending the bill of costs. It is true that under Order 55 (3), the fee for attending bill of cost is not supposed to be included in the bill of costs rather, it has to be indicated at the foot of the bill of costs leaving the amount to be filled in by the taxing officer. I agree that in the matter at hand, that was not complied with by the respondent. I however do not see how the applicant was prejudiced by such defect for the taxing officer did not at all tax such amount. In his ruling, the taxing officer estimated the advocate's fees at TZS. 1,500,000/=. There is nowhere the taxing officer mentioned to have taxed costs for defending the bill of costs. As well pointed above, the amount of TZS. 1,500,000/= taxed as advocate fees for defending two cases are reasonable and within the ambit of the law. In considering the above discussion, I find this reference to have no merit and proceed to dismiss it with costs. To avoid endless litigation Page 7 of 8 between the parties, I order that TZS. 500,000/= should be paid by the applicant to the respondent as costs for defending this reference. In summary, the applicant will be liable to pay to the respondent the amount of TZS. 1,672,000/= taxed by taxing officer plus TZS. 500,000/= as cost for prosecuting this reference case, all making the total of TZS. 2,172,000. It is so ordered. DATED at BABATI this 18th Day of July, 2024 D.C. MUZORA JUDGE Page 8 of 8