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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT DAR ES SALAAM CIVIL REFERENCE NO. 24356 OF 2024 (Originating of the decision of the Taxing Officer in Taxation Cause No. 7903 of2024 by Hon. Lukindo M. F Taxing Officer) JOHN MONDOKA GUDABA............................................. APPLICANT VERSUS WILHELMINA EDWARD FESTO (sued as guardian of Bainomukana Apollo Festo)............................... .............RESPONDENT RULING Date of last Order: 10/03/2025 Last of Ruling: 17/03/2025 LALTAIKA, J. The Applicant herein JOHN MONDOKA GUDABA has moved this court seeking to challenge the taxation decision issued by the taxing officer awarding costs to the Respondent following the withdrawal of Land Case No. 117 of 2023. The taxing officer had taxed a total of TZS 11,110,000/= as costs, awarding the amount to the Respondent. The Application was argued by way of written submissions. Messrs Daniel Ngudungi and Omari Kilwanda represented the Applicant and Page 1 of 14 Respondent respectively. They deserve commendations for embracing technology and unwavering use of the e-CMS. The next part of this Ruling is, in that order, a summary of submissions by the parties, analysis of the law and the verdict. Mr. Ngudungi submitted that that the Applicant had been the Plaintiff in Land Case No. 117 of 2023, in which the Respondent was among the Defendants. The Applicant had claimed to be declared the lawful owner of the disputed land. However, the matter had ended without being heard on merit, as the Applicant had conceded to a preliminary objection concerning the non-joinder of the Commissioner for Lands as a necessary party. Consequently, the court had ordered costs in favour of the 2nd Defendant, who was the Respondent in the present matter. Mr. Ngudungi went on to state that upon the filing of the Taxation Cause, the Respondent had sought costs, claiming TZS 10,000,000/ = as instruction fees, which had been taxed as prayed. Additionally, attendance fees and disbursement costs had been taxed at TZS 1,060,000/ = . He emphasized that the Applicant was particularly aggrieved by the taxing officer's decision as contained on page 10 of the ruling, where the taxing officer had taxed TZS 10,000,000/= as instruction Page 2 of 14 fees based on the reasoning that the claim before the trial court had been for a liquidated sum. Attendance costs had been taxed at TZS 1,050,000/= and disbursements at TZS 60,000/=. Counsel for the Applicant submitted that the taxing officer had erroneously taxed the bill of costs by mischaracterizing the nature of the suit before the trial court as one involving a liquidated sum, as elaborated in the ruling, particularly on page 10. He contended that the Applicant's claim before the trial court had been for a declaration of ownership over the disputed land, as evidenced by annexure NCA-1 to the affidavit. Furthermore, he pointed out that the Applicant had never been a party to the mortgage deed, which the taxing officer had relied upon in determining that the suit involved a liquidated sum. He therefore strongly submitted that the taxing officer had erred in taxing the instruction fee based on the mistaken premise that the claim was of a liquidated nature. In support of this argument, he referred to the definition of a liquidated claim as provided in legal dictionaries, noting that such a claim referred to a specific amount of money that was readily ascertainable and agreed upon by the parties, thereby eliminating the need for further calculation. He also cited the case of ISSACK MWAMASIKA AND 20 OTHERS V. NOBERT MBOWE T/A GAS OIL CONSULTING Page 3 of 14 GROUP, Taxation Cause No. 199 of 2024, where the taxing officer had quoted the meaning of a liquidated claim as referring to damages agreed upon in a contract in the event of a breach. Mr. Ngudungi forcefully argued that from this definition, a liquidated claim arose from a breach of contractual terms. However, upon examining the plaint attached to the present application, he asserted that there was no indication that the Applicant had claimed for breach of contract against the Respondent or any other Defendant. Additionally, he reiterated that the Applicant had not been a party to the mortgage deed referenced by the taxing officer. Instead, counsel emphasized, the Applicants claim before the trial court had been for a declaration of ownership of the disputed land. On this basis, he submitted that the taxing officer had erroneously concluded that the suit before the trial court involved a liquidated claim, despite the fact that the Applicant's claim did not fall within the legal definition of such a claim. He thus prayed for the court to revise the taxing officer's decision and to tax the instruction fees in accordance with the law governing declaratory claims rather than the misapplied basis of a liquidated sum. Counsel further argued that the taxing officer had improperly exercised judicial discretion in awarding instruction fees to the Page 4 of 14 Respondent without considering the fact that the suit had ended at a preliminary stage and had not been determined on merit. He explained that the Applicant had withdrawn the suit upon conceding to the preliminary objection concerning the non-joinder of the Commissioner for Lands. As a result, Counsel asserted, the Applicant still retained the right to pursue his claim after issuing the required 90-day notice to the Commissioner for Lands. He contended that taxing an instruction fee of TZS 10,000,000/= as prayed deprived the Applicant of his right to pursue the claim, as it amounted to double hardship since the matter had not been finally determined. In support of this argument, he referred to the cases of Ndovu Adventure Ltd v. Elibariki Lorry, Taxation Reference No. 6 of 2021, and Trace Associates Limited and 2 Others v. Rosemary Tryphone, Taxation Reference No. 09 of 2023. He observed that in the present matter, the taxing officer had failed to consider the time and effort involved, as the case had ended at a preliminary stage without a hearing of the preliminary objections raised. Mr. Ngudungi went on to elaborate and expressed his surprise that the taxing officer had, allegedly, taxed item 1 of the bill of costs at TZS 10,000,000/= as prayed, based on the erroneous conclusion that the suit Page 5 of 14 had involved a liquidated claim. He thus submitted that the taxing officer had misused her powers in taxing the amount without considering the legal conditions and authorities governing such determinations. Accordingly, he prayed for the court to revise the decision and tax the instruction fees appropriately. Furthermore, Counsel emphasized that the matter properly fell under the 11th Schedule, item l(k) of the Act, which governed suits of a declaratory nature. He therefore submitted that the taxing officer had erroneously applied the law in taxing the instruction fees, leading to an unsubstantiated decision that failed to reflect the nature of the suit and the work done. He prayed for the court to allow the Application with costs. Mr. Kilwanda, Counsel for the Respondent, raised a preliminary objection to the application. He began by acknowledging that Counsel for the Applicant, who also represented the Decree Holder, had complied with the order issued by Hon. Laltaika, J., on 19th November 2024, by filing a Reply Written Submission opposing the entire Submission in Chief presented by the Applicant. He proceeded to outline the background of the matter, stating that the Applicant had instituted Land Case No. 117 of 2023 before the court, naming the Respondent as the 2nd Defendant alongside four others. The Page 6 of 14 Applicant had sought, among other reliefs, a declaration of ownership over Plot No. 2004, Block C, Ununio, Kinondoni Municipality, Dar es Salaam, following an alleged invasion of the land in 2015. Additionally, the Applicant had prayed for the nullification of executed mortgage deeds, an eviction order, demolition of illegally erected structures, vacant possession, and costs. Mr. Kilwanda recalled that on 12th February 2024, the Respondent, who was the Plaintiff in that case, had moved the court (presided over by Hon. T.N. Mwenegoha) to withdraw the suit with leave to refile under Order XXIII Rule (1) of the Civil Procedure Code, Cap 33 R.E. 2019. He emphasized that all parties, including the Applicant (2nd Defendant), had supported the withdrawal, with the latter specifically praying for costs. The court had consequently marked the case as withdrawn and awarded costs to the Applicant as requested. In light of these undisputed facts, Mr. Kilwanda argued that since the Respondent had been a party to the suit and had engaged legal representation, the award of costs was inevitable. He further submitted that the Respondent had successfully filed a Bill of Costs, and the taxing officer had awarded her a total sum of TZS 11,110,000/=. This amount, Page 7 of 14 he explained, represented the costs incurred by the Respondent in defending the case until its withdrawal. He urged the court to adopt the Counter Affidavit filed by the Respondent and scrutinize the Applicant's Submission in Chief. According to him, a rational assessment of the Applicant's arguments would reveal that the taxing officer had been faulted on two grounds: first, that she had erroneously referred to the Applicant's claim before the trial court as being of a liquidated nature when it was not; and second, that she had mistakenly awarded the Respondent legal fees amounting to TZS 10,000,000/= despite the matter not being heard on merit. He contended that the Applicant had relied on several authorities, none of which were applicable to the matter at hand. He urged the court to disregard those cases as distinguishable. Moreover, he criticized the Applicant for failing to cite any provision of law that had been violated by the taxing officer or to demonstrate how the alleged errors had prejudiced his rights. Addressing the first issue, Mr. Kilwanda argued that the taxing officer's duty was merely to assess the costs incurred in the Bill of Costs application and not to examine the nature of claims presented in the withdrawn suit. He emphasized that the Applicant had not shown how the Page 8 of 14 reference to a liquidated sum had prejudiced him, particularly given that the trial court had already awarded costs to the Respondent. He further cited the case of Maneno Mengi Limited & Others v. Farida Said Nyamachumbe &The Registrar of Companies, Civil Appeal No. 45 of 2003, in which the Court of Appeal of Tanzania had held that procedural irregularities that do not go to the root of a matter should not render proceedings incompetent, provided that there was substantial compliance with the law and no prejudice was occasioned. He argued that, in the present case, the Applicant had misled the court by asserting that the taxation proceedings were vitiated merely because the taxing officer had referred to the claim as a liquidated sum. Regarding the second issue, Mr. Kilwanda submitted that the question of whether the taxing officer had erred in awarding legal fees of TZS 10,000,000/= should not be of concern, as it was undisputed that the Respondent had engaged an advocate to represent her in the suit. He pointed out that instruction fees were governed by item 1 and 18 of the folios of the Bill of Costs, which reflected an initial claim of TZS 20,000,000/=. The Applicant, he argued, had failed to indicate what amount ought to have been taxed if the awarded sum was Page 9 of 14 allegedly excessive. He contended that the Applicant's objection was merely an attempt to waste the court's valuable time. Counsel went on to emphasize that the advocate's instruction fee covered comprehensive and complex legal work, including obtaining instructions and preparing for defense. He cited case law supporting the principle that instruction fees should correspond to the amount of work involved, the complexity of the case, and the time expended. He referred to Makumbi & Others v. Sole Electrics (V) Ltd (1991-1994) E.A. 310, where it was held that instruction fees should cover all work necessary to present a case for trial or appeal. Similarly, he cited C.B. Ndege v. E.W. Aliya & A.G [1988] TLR 91, in which Hon. Msofe, J. (as he then was) had ruled that instruction fees must reflect the time, energy, and industry expended. Additionally, he referred to Tanzania Rent A Car Ltd v. Peter Kimuhu, Civil Reference No. 9 of 2020, where the court had held that a taxing officer must consider factors such as the complexity of the case, time taken at hearings, and the amount of work involved. He stressed that the instruction fee awarded to the Respondent fell within the prescribed range of 3%-7% of the claim value, as stipulated under item 7 of the 9th Schedule to the Advocates Remuneration Order, 2015. Since Page 10 of 14 the estimated value of the subject matter was TZS 350,000,000/=, he argued that the taxed amount was justifiable. He asserted that the Applicant had misrepresented the taxing officer's award by suggesting that she had awarded TZS 10,000,000/= instead of the full amount prayed for by the Respondent. Mr. Kilwanda concluded by urging the court to uphold the instruction fee of TZS 20,000,000/= as originally prayed for, in line with the principle enunciated in Singh v. Mbeya Cooperative Union (1969) H.C.D No. 73. There was no rejoinder submission filed in the e-CMS. Learned Advocates are reminded that this Court operates at 100% electronic filing system. I will now move to analyse the law in relation to these competing submissions. At this stage, I am inclined to provide a contextual backdrop. The genesis of this matter traces back to Land Case No. 117 of 2023, in which the Applicant had instituted proceedings against the Respondent (as the 2nd Defendant) and four others, seeking a declaration of ownership over Plot No. 2004, Block C, Ununio, Kinondoni Municipality, Dar es Salaam, among other reliefs. However, on 12th February 2024, the Applicant sought to withdraw the suit with leave to refile, a prayer that was granted by Hon. T.N. Mwenegoha, J., with an order that costs be Page 11 of 14 borne by the Applicant. Subsequently, the Respondent successfully filed a Bill of Costs, resulting in an award ofTZS 11,110,000/=, which included legal fees ofTZS 10,000,000/=. The Applicant now challenges the taxation on two principal grounds: (i) That the taxing officer erroneously referred to the Applicant's claim before the trial court as being of a liquidated nature, (ii) That the taxing officer improperly awarded the Respondent legal fees despite the matter not proceeding to a full hearing. The primary issues for my determination in this application are: (i) Whether the taxing officer committed an error in referring to the Applicant's claim as a liquidated sum and (ii) Whether the taxing officer erred in awarding instruction fees of TZS 10,000,000/= despite the case being withdrawn before a full hearing. On the 1st issue, the Respondent contended that this reference was immaterial to the taxation process and that the Applicant has failed to demonstrate how it prejudiced him. I find merit in this argument. The fundamental duty of a taxing officer is to assess costs fairly and in accordance with established legal principles. Even if there was an erroneous reference to the nature of the claim, it does not, in itself, vitiate the taxation unless it can be shown that such an error resulted in a miscarriage of justice. The Court of Appeal in Maneno Mengi Limited Page 12 of 14 & Others v. Farida Said Nyamachumbe & The Registrar of Companies (Supra), held that procedural irregularities that do not go to the root of a matter should not render proceedings incompetent, provided there is substantial compliance with the law and no prejudice is occasioned. In the present case, the Applicant has failed to establish how the reference to a liquidated sum affected the computation or assessment of costs. I therefore find that this ground is without merit. Moving on to the second issue, the Applicant contends that since the suit did not proceed to a full trial, the awarded legal fees were excessive. However, as correctly argued by Mr. Kilwanda, instruction fees are not strictly contingent upon a matter proceeding to full trial. The legal framework governing taxation of costs, particularly the Advocates Remuneration Order, 2015, provides that instruction fees should be determined based on various factors, including the complexity of the case, the value of the subject matter, and the legal work done. The decision in Makumbi & Others v. Sole Electrics (supra) affirmed that instruction fees are meant to compensate for all legal work done in preparation for trial or appeal. The instruction fees awarded in this case fall within the permissible range under item 7 of the 9th Schedule Page 13 of 14 to the Advocates Remuneration Order, 2015, which prescribes 3%-7% of the claim value. Given that the estimated value of the subject matter was TZS 350,000,000/=, the award of TZS 10,000,000/= was reasonable and well within the accepted parameters. The Applicant's assertion that instruction fees should only be awarded if a matter is heard on merit is therefore legally unfounded. In the upshot, I find that the taxing officer did not commit any material irregularity in awarding costs to the Respondent. The awarded instruction fees were justified based on the complexity of the case and the work done by the Respondent's Counsel. Accordingly, this application is hereby dismissed. Given the peculiarity of the application as evident from the lengthy submissions by Counsel, including avoiding "double hardship", I make no order as to costs. It is so ordered. E. I. LALTAIKA JUDGE 17/03/2025 Court: Ruling delivered in Court Chambers this 17th day of March 2025 at 15:00 PM in the presence of Mr. George Dossa, Legal Officer from Offices of the Applicant's Counsel and in the absence of the Respondent. Page 14 of 14