JOHN MOMOSE CHEYO VS STANBIC T LTD COMM REFERENCE NO

IN THE HIGH COURT OF TANZANIA COMMERCIAL DIVISION AT DARES SALAAM COMMERCIAL REFERENCE NO 72 OF 2018 (Arising from Taxation of Commercial Application No 9 of 2017 by Hon. Rwezile, Taxing Officer) BETWEEN JOHN MOMOSE CHEYO-------------------------- --------------------------APPLICANT VERSUS STANBIC TANZANIA LTD-------------------------------------------- RESPONDENT RULING SONGORO, J This is a ruling on the Reference filed by John Momose Cheyo, the applicant applying that, the court make a reference on a decision of Hon. Rwezile, the Taxing Master which was delivered in Taxation Commecial Application No 9 of 2017 on the 7/3/2018. The reference application was made under Order 7(1) and (2) and Order 48 of the Advocates Remuneration Order Government Notice No 263 of 2015 and is supported by an affidavit sworn by Yohana Juliu Ayall, the applicant Counsel. The Respondent in the application is Stanbic Tanzania Ltd who also filed the Counter Affidavit and opposed the application. In the light of the reference application, the court invited both parties to pursue the application. So, Mr Yohana Juliu Ayall appeared for the applicant; while Mr Zakaria Daudi Learned Advocate appeared for the Respondent. Page 1 of 5 In pursuing the reference application, Mr Yohana pointed out to the court that, Stanbic Bank Tanzania Ltd who was the decree holder and presented in court a Bill of Costs of shs 8, 637,600 to be taxed by Honourable Taxing Master. He then indicated that, the Taxing Master upon hearing the Bill of Costs he only allowed a sum of shs 1,070,000 to be paid and disallowed more than "one sixth ” of the claimed sum. The applicant's counsel further submitted that, the Taxing Master after disallowing more than "one sixth” of the claimed amount in the Bill of Cost was under statutory obligation under Order 48 of the Advocates Rumination Order Government Notice No 263 of 2015 to find and decide that, the respondent has presented excessive bill of costs, and is not entitled to any payment. While on this point Mr Yohana submitted that, the whole intent and purposes of Order 48 of the Advocates Remuneration Order, Government Notice No 263 of 2015 is to curb and discourage parties to raise and pray for excessive claim in the bill of costs. So, the counsel finally prayed to the court to review a decision of the Hon Taxing Master in line with Order 48 of the Advocates Remuneration Order Government Notice No 263 of 2015 and makes an order that, the Respondent bank is not entitled to costs. On his part Mr Zakaria Daudi the Learned Advocate of the Respondent bank took another direction and submitted that, the application is baseless and lacks merit because the Honourble Taxing Master duly and fairly exercised his discretion in taxing the bill of costs. The counsel then argued that, in item 1 of Bill of costs there was a claim of instruction fees of shs 7,000,000, and the amount granted and allowed was shs 1,000,000/=. So the Taxing Master was correct in taxing the amount. Page 2 of 5 Next he argued that, the Taxing Master was also correct in taxing items 2, 3, and 4 and even the disallowed amount is not more than one sixth of the entire claim as contested by the applicant. So, he finally prayed that, the application be dismissed because the Taxing Officer properly excised his discretion... In his rejoinder Mr Yohana Learned Advocate of the applicant he requested that, court to look at Bill of cost filed by applicant and cast its net to the Ruling and decisions of the Taxing Master. He further submitted that, the court will easily found that, the amount claimed in the bill of costs, one sixth of the total claimed in the bill of costs disallowed The counsel then explained that, Taxing Master was supposed to stick to the provisions of Order 48 of the Advocate Remuneration Order of Government Notice No 263 of 2015 and makes a decision that, the Respondent's bank was not entitled for payment of costs because he presented excessive claim. The court considered the arguments and submissions of both parties and find indeed Order 48 of the Advocate Remuneration Order of Government Notice No 263 of 2015 has a marginal note which reads “Excessive Claim." Then the said order 48 states as follows;- “When more than one -sixth of the total amount of 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”. The cited Order 48 also has a “proviso” which reads as follows;- “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”. Therefore guided by what is provided in Order 48 of the Advocate Remuneration Order and I find the words has no ambiguity in the sense that, it Page 3 of 5 prohibit the presentation of excessive claims and legal consequences once excessive claim is presented in the bill of costs by stating that, once one over sixth of total claim is disallowed, exclusive of court fees then the party who present such bill of costs is not entitled to costs. Now reverting to the bill of cost as I have said, the Respondent claim s sum of shs 8, 637,600 and the amount taxed appears to be shs 1,070,000. So by simple arithmetic the amount disallowed by the Taxing Master was shs. 7,567, 600/=. Next the court find one sixth of the claimed amount in the bill of costs is shs 1,439,600. It follows therefore since disallowed sum was shs 7,567,600/= certainly was over and above one over sixth of the total claim in the bill of costs which was shs 8,637, 600/= It follows therefore after the Hon. Taxing Master has disallowed more than one sixth of the claimed amount in bill of costs, he was duty bound in his decision to take into account the provision of Order 48 of the Advocates Remuneration of Government Notice No 48 of 2015, which insist that, a party presenting excessive claim which one sixth is allowed is not entitled to such costs of taxation. It seems to me that, Order 48 of the Advocate Remuneration order is expressly clear on excessive claims, and its legal consequences, but the Taxing Master did not take into account in his decision on what is provided in the cited order and its proviso. For that, reasons I hereby review the decision of Taxing Master, in line with Order 48 of the Advocate Remuneration Order of Government Notice No 263 of 2015 and find the Taxing Master in excising his power in taxation proceedings he was also bound by Order 48 of the GN 263 of 2015. Since the Taxing Master failed to observe the statutory requisites envisaged in Order 48 of the Advocate Remuneration Order of Government Notice No 263 of Page 4 of 5 2015 I hereby quash and set aside the decision of the Taxing Master in the Misc Commercial Application No 9 of 2017 which grant costs. Next, 1 hereby rule and decide that, since in the respondent bill of costs, one sixth of the claimed amount being shs 7,567,600/= was disallowed by Hon Taxing Master I hereby find and decide that, respondent is not be entitled to the costs of such taxation, because he presented excessive claim. Thus the reference application succeed. Due to the fact that, the error was found in a decision of Taxing Officer, I make no order as to costs. Right of appeal is explained to both parties. Dated and Delivered at Dar es Salaam on this 12th July, 2018 H.T. SONGORO (JUDGE) The Ruling was eired in the presence of Mr. Yohana Aya Learned Advocate of the applicant and Mr. Zakaria Daudi, Learned Advocate of the Respondent's bank Page 5 of 5