Kampuni Zacharia Tanzlii

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA CIVIL REFERENCE NO. 9911/2024 BETWEEN KAMPUNI YA MABASI YA ZACHARIA.……………..………………….APPLICANT VERSUS MARIAM CHARLES…………….………………………..………………… RESPONDENT RULING OF THE COURT 13/08/2024 & 24/09/2024 Kafanabo, J.: This is a ruling in respect of an application for reference arising from the decision of the Taxation Cause No. 000001319 of 2024 between the parties herein dated 17/04/2024. The application is made by chamber summons supported by an affidavit of Mr. Onyango Otieno, a learned advocate for the Applicant. The Applicant’s substantive prayer is that the court be pleased to find that the claim for costs presented in Taxation Cause (Bill of Costs) No 000001319 of 2024 was excessive, therefore the Respondent is not entitled to costs. On 17/04/2024 the Respondent was granted Tanzania Shillings (TZS). 1,150,000/= in respect of the bill of costs sought in Taxation Cause No. 000001319 of 2024, arising from Miscellaneous Civil Application No. 8 of 2023. The Applicant, being aggrieved by that decision of the Taxing Officer, 1 preferred this reference before this Court praying for this Court to find that the claim under the presented bill of costs in Taxation Cause (Bill of Costs) No. 000001319 of 2024 was excessive therefore the Respondent is not entitled to costs. In support of the application, Mr. Otieno submitted that the application is brought under Orders 7 and 48 of the Advocates Remuneration Order, 2015. The learned counsel adopted the affidavit supporting the application as part of the Applicant’s submission. The Applicant seeks reference to the ruling of a Taxing Officer dated 17/04/2024 which awarded TZS 1,150,000/= as costs arising from Miscellaneous Civil Application No. 03 of 2023. It was submitted that the amount awarded by the Taxing Officer is excessive and thus contrary to law. Going by the 11th Schedule of the Advocates Remuneration Order, 2015 item 1(m)(ii), is about matters relating to miscellaneous applications which are neither appeals nor suits. It is clear that if they go unopposed the amount allowed as instructions fee is TZS 500,000/=, if the matter is opposed, the amount to be paid as instructions fee is TZS 1,000,000/=. The Respondent presented a bill of costs claiming TZS 3,900,000/=. However, the Taxing Officer disallowed TZS 2,750,000/= which is more than one-sixth of the amount claimed. The Applicant’s further submission was that one-sixth of the amount presented is TZS 650,000/=. Therefore, the amount disallowed by the Taxing Officer exceeded one-sixth of the amount claimed which makes the whole bill of costs excessive and thus offending order 48 of the Advocates Remuneration Order, 2015 (hereinafter the ‘ARO’). It was submitted that 2 the Taxing Officer was not guided by the Eleventh Schedule of the ARO because the Taxing Officer having disallowed TZS 2,750,000/=, which was more than one-sixth, then the whole bill of costs presented and awarded fell under excessive claims and the whole bill of costs was to be disallowed. The cases of Octopus Engineering Limited v. Spencos Services Limited, Civil Reference No. 14 of 2020, and the Registered Trustees of winners Chappel International v. Maria Mathias and 137 Others, Civil Reference No. 06 of 2023(unreported), were cited in support of the submission. It was submitted that the Respondent should leave with nothing, that is zero cost and the application for reference be allowed. The Respondent’s counsel, opposing the application for reference submitted that the Respondent’s application for the bill of costs did not exceed the prescribed amount, and did not offend order 48 of the ARO on excessive claim. It was further submitted that under order 48 of the ARO, the Taxing Officer is given discretion. The law is clear that the instruction fee may be disregarded in the computation of one-sixth of the total amount of the bill of costs presented. The Taxing Officer has the mandate to reduce the amount claimed and the discretion should not exceed the requirement of the law. The Taxing Officer’s discretion did not offend Order 48 of the ARO, as the discretion was exercised judiciously as it is within the prescribed scale of the law. It was further submitted that the case of Octopus (Supra) is distinguishable from the present case as the amount disallowed exceeded one-sixth of the claimed amount and thus offended Order 48 of the ARO. In the present case, the Taxing Officer taxed the bill of costs at TZS 3 1,150,000/= which did not offend order 48 and the Eleventh Schedule of the ARO. The instructions fee was proper; the amount did not exceed the amount prescribed by law. It was also submitted that the instruction fee is within the discretion of the court as held in the cases of Julius Mwarabu vs Ngao Godwin Losero (Civil Reference 4 of 2020) [2021] TZHC 5398 (30 July 2021), Tanzania Rent A Car Limited v. Peter Kimuhu Civil Reference No. 9 of 2020, and VIP Engineering and Marketing Limited v. Citibank Tanzania Limited, Civil Application No. 24 of 2019. In a brief rejoinder, the Applicant’s counsel submitted that Order 48 of the ARO is very clear, the instructions fee presented as per the bill of costs was TZS 3,500,000/= which is excessive. The Taxing Officer’s discretion should not offend the guiding rules. The Respondent claimed TZS 3,900,000/=, and one-sixth of the claimed amount is TZS 650,000/=. But the amount disallowed is TZS 2,750,000/= which is over and above one- sixth. It was thus submitted that going by the rules, the Respondent is entitled to nothing. After the parties have been duly heard, it is for this court now to determine whether this application is meritorious, that is whether the Applicant has demonstrated sufficient cause for this court to interfere with the discretion of the Taxing Officer. In the light of the affidavit supporting the application, and the counter affidavit filed by the Respondent, a major contention of the parties herein is whether the Respondent’s bill of costs was excessive and whether the Taxing Officer exercised her discretion judiciously. A simple analysis is that it is not 4 in dispute that the Respondent, in Taxation Cause No. 000001319 of 2024, presented a bill of costs claiming a total amount of TZS 3,900,000/= being costs incurred. In the said TZS 3,900,000/=claimed by the Respondent, an amount of TZS 3,500,000/= was an instruction fee. It is also not disputed by the parties that the whole bill of costs was taxed at TZS 1,150,000/= and thus TZS 2,750,000/= was taxed off or disallowed. It is based on the above-disallowed amount this application germinates. The Applicant’s counsel argues that since the disallowed amount by the Taxing Officer exceeds one-sixth of the total amount claimed in the bill of costs, the bill of costs offended Order 48 of the ARO and thus the whole bill of costs was to be disallowed by the Taxing Officer because the Respondent was entitled to nothing according to the said order 48 of the ARO. The Respondent’s counsel on his part submitted that the Order 48 of the ARO was not offended, instead, the Taxing Officer exercised her discretion as provided under the said Order 48 of the ARO. Given that Order 48 of the ARO is the center of the contention by the parties herein, it is pertinent that the same be reproduced herein for ease of reference and comprehension. The said order provides as follows: “When more than one-sixth of the total amount of a 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: 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.” 5 Reading the said Order 48 of the ARO as a whole, it brings this court to the construal that the said order gives discretion to the Taxing Officer to disregard instructions fee taxed-off when computing the one-sixth of the total amount of the bill of costs. See the decision of this court in Peter Mnanka vs Anarua Mwanga Elias (Civil Application 4454 of 2024) [2024] TZHC 6981 (31 July 2024). It follows that, the decisions of this court in the cases of Octopus Engineering Limited v. Spencos Services Limited (supra) and the Registered Trustees of winners Chappel International v. Maria Mathias and 137 Others (supra), although the parties drew the attention of the court on the proviso to Order 48 of the ARO, the discretion of the Taxing Officer in disregarding the taxed off instructions fee when computing one-sixth of the amount of bill of costs presented for taxation was not discussed. Besides, Order 48 of ARO when read together with other provisions of the ARO on the exercise of discretion by the Taxing Officer, makes sense that judicious exercise of discretion by the Taxing Officers is vital in the determination of taxation causes, and that should not be taken away from them flimsily taking into account peculiarity of facts and circumstances of each particular case. See the case of Benjamin Elikana Masota @ Benjamin Masota vs Omega Fish Limited (Civil Application No.540/08 of 2022) [2023] TZCA 17539 (22 August 2023). Fortifying this court’s position on the use of discretion by the Taxing Officers is Order 12(1) of the ARO which provides that: 6 ‘The taxing officer may allow such costs, charges, and expenses as authorised in this Order or appear to him to be necessary or proper for the attainment of justice.’ Also, see Orders 15 and 47 of the ARO exemplifying the discretion of the Taxing Officer in the taxation of a bill of costs. Moreover, in addressing the discretion of the taxing officer, the Court of Appeal of Tanzania in Tanzania Rent A Car Limited vs Peter Kimuhu (Civil Reference 9 of 2020) [2021] TZCA 103 (6 April 2021) referring to the decisions of the Attorney General v. Amos Shavu, Taxation Reference No. 2 of 2000, the East African Development Bank v. Blue Line Enterprises, Civil Reference No. 12 of 2006 (both unreported) and Premchand Raichand Ltd and Another v. Quarry Services of East Africa Ltd and Others (No.3) [1972] 1 E.A. 162 observed that: ‘As argued by both counsels for the parties, it is a general rule that the award of instruction fees is peculiarly within the discretion of a taxing officer and the Court will always be reluctant to interfere with his decision, unless it is proved that the taxing officer exercised his discretion injudiciously or has acted upon a wrong principle or applied wrong consideration.’ Reverting to the present case, the Applicant faults the Taxing Officer in not disallowing the whole bill of costs after disallowing more than one- sixth of the bill of costs, it is a view of this court that the said complaint or submission is misconceived in the light of the reasoning of this court herein above. 7 As alluded herein above, it is not in dispute that the total amount claimed in a bill of costs was TZS 3,900,000/= and the taxed-off amount was TZS 2,750,000/= which was more than one-sixth being the total amount presented in the bill of costs. However, it should be noted that in the total amount of the bill of costs, i.e. 3,900,000/=, the amount of TZS 3,500,000/= was the advocate’s instructions fee out of which TZS 2,500,000/= was taxed off by the Taxing Officer. Therefore, the amount of TZS 2,500,000/= taxed off by the Taxing Officer from the instructions fee should be disregarded in computing one-sixth of the amount disallowed or taxed off from the total amount of the bill of costs presented. Moreover, the amount taxed off from the total amount of the bill of costs presented was 2,750,000/=. Then TZS 2,500,000/= being an amount of instructions fee taxed off from the instructions fee, and if deducted from TZS 2,750,000/= as a way of disregarding it in calculating one-sixth of the total amount of the bill of costs, then the remaining amount would be TZS 250,000/= being total amount taxed off. Therefore, since one-sixth of the total amount of the bill of costs is TZS 650,000/=, it is crystal clear that TZS 250,000/=, being the amount taxed off from the amount claimed in a bill of costs, is far below the one-sixth that requires the whole bill of costs to be disallowed. Under the circumstances, this court cannot fault the Taxing Officer for not disallowing the whole bill of costs as argued by the Applicant’s counsel This is because the exercise of discretion by the Taxing Officer in taxing the bill of costs was neither injudicious, nor acted upon a wrong principle, and there is no evidence that wrong consideration was applied. Therefore, the 8 Applicant's complaint that the whole bill of costs should be disallowed lacks merit. It follows that this application is also unmeritorious and thus dismissed. Since this was an application arising from a taxation cause, each party shall bear their costs. It is so ordered. Dated (s 24th day of September 2024. K. I. Kafanabo Judge The ruling was delivered in the presence of Mr. Onyango Otieno, Advocate for the Applicant and Mr. Aloyce Kajinatus, Advocate for the Respondent. K. I. Kafanabo Judge 24/09/2024 9