kasera ariro and another vs gerson oteyo kimori 2020 tzhc 2536 25 september 2020

IN THE HIGH COURT OF TANZANIA MUSOMA DISTRICT REGISTRY AT MUSOMA APPLICATION FOR REFERENCE NO 3 OF 2020 1. KASERA ARIRO 1st APPLICANT 2. AGAR ODONGO 2nd APPLICANT VERSUS GERSON OTEYO KIMORI RESPONDENT (Arising from the decision and orders of the district land and housing tribunal for Tarime at Tarime Hon. Ngukulike Chairman, in miscellaneous application no 271 of 2019 dated 20.03.2020) RULING Dates; 6,h August & 25th September 2020 GALEBA, J. This is an application for reference. It was made under order 7(1) of the Advocates Remuneration Order GN 264 of 2015 (sic) to challenge the order of the taxing officer in miscellaneous application no 271 of 2019 in which the district land and housing tribunal for Tarime (the DLHT) taxed off instruction fees at item 1 of the bill of costs and did not tax or award any costs in respect of item 9 for presenting the bill of costs and prosecuting it. In fine the prayers in the chamber summons were as follows; “1. That the Hon. court be pleased to vary the decision of the Taxing master, Hon. NGUKULIKE, N. O. dated 20th March, 2020 on the ground that: 1 i) That the hon. taxing master erred in law and in fact by taxing off the instruction fees on the ground that it was a contingent fee, ii) That the hon. taxing master erred in law and in fact in exercising his discretion by not taxing any amount for representation in a taxation cause no. 271/2019. Hi) That the hon. taxing master misdirected himself by ordering that the aggrieved party should appeal to the High Court on taxation matters. 2) The Honourable court be pleased to tax Taxation cause no 271 of 2019 according to law. 3) Costs of this reference be provided for. 4) Any other reliefs this court may deem fit to award." In this application, there is a minor matter I have noted with respect to the GN number. According to the chamber summons, the law under which this application is brought is GN 264 of 2015. I take it that but the appropriate law is Government Notice 263 of 2015, because what the applicants intended to refer to the Advocates Remuneration Order that was passed in 2015 as there is only GN 263 which relates to advocates’ fees which was passed in that year. Other than that omission which is a slip of a pen, the complaints of the applicants in this application will not detain me for long because, first they are straight forward and second the application was not resisted, by the respondent. On 06.08.2020, following a prayer by Mr. Paul Deya Outa, learned advocate for the applicants also holding brief of Mr. Onyango Otieno learned advocate for the respondent, who had not attended because he was attending to his sick baby, this court made orders that this application shall be argued by way of written 2 submissions. Following that order the applicants filed their written submissions on 18.08.2020 but the respondent who were supposed to file theirs on or before 07.09.2020, did not. That is why I said that the application was not effectively resisted. The brief history of the matter in the DLHT is that the respondent filed Application no 76 of 2018 against the applicants. That application was dismissed with costs. In order to enforce the costs, the applicants filed Miscellaneous Application no 271 of 2019 moving the tribunal to grant Tshs 2,113,000/= as the grand total including Tshs 1,593,000/= being instruction fees indicated at item 1 of the bill. There was also item 9 which had no figure because, it related to instruction fees to prosecute the bill of costs filed. At the very end of the ruling the DLHT indicated that a party dissatisfied may appeal to the high court in 45 days. Finally, the taxing officer taxed off the instruction fees because the money was paid to the advocates after the case was finalized. He too, did not tax or grant any money in respect of item 9 as stated above. According to the applicants, the reason given by the DLHT for taxing off instruction fees is legally erroneous. The reason was that the ruling dismissing Application no 76 of 2018 was delivered on 14.02.2019 and the fees were paid on 11.04.2019 weeks after the ruling was delivered. The DLHT reasoned that because the fee was paid after the case was over, then the fee was contingent which is prohibited in private legal practice. I will deal with this aspect first. Regulation 81 3 of the Advocates (Professional Conduct and Etiquette) Regulations 2018, GN 118 of 2018 provides as follows; "81. An advocate shall not enter into an agreement with a client for a contingent fee.” That is to say, indeed agreeing to receive or to offer contingent fee is illegal and a malpractice, but in this case there was no proof that there was in existence a contingent fee agreement between the advocate and the applicants. The taxing officer before taxing off item 1 he did not establish from the applicants and their advocate on how the fee was agreed to be settled; because parties could have agreed that payment of fees would be effected after closure of the matter. It is of profound importance to note that payment of advocates’ fees after the case is finalized is not illegal. It becomes illegal when there is an understanding between a winning party and his advocate that payment will only be effected upon winning the case. The latter practice is a malpractice and it is prohibited by regulation 81 of the Advocates (Professional Conduct and Etiquette) Regulation 2018 (supra). In this case there was no evidence demonstrating that fees would only be paid upon the advocates winning application no 76 of 2018. Therefore to uphold the position taken by DLHT that recovery of advocates fees after closure of the case is illegal, would be to place the advocates in a very precarious and risky financial position, because then no advocate would be able to recover any fees that 4 may be outstanding on his credit otter the case is closed. With due respect therefore the taxing officer’s refusal to tax item 1 of the bill of costs was legally erroneous. The other complaint of the applicants was that, the taxing officer did not consider item 9. I agree with the complaint because the applicant hired counsel to prosecute the bill. That item was supposed to be taxed by the taxing officer according to his discretion and his refusal to tax it was unlawful. The complaint that the taxing officer indicated to parties that whoever was not satisfied should appeal, instead of stating that he should file a reference under the law, is a meritorious argument because the process of challenging decisions of taxing officers in courts and tribunals below the high court is by filing applications for reference under the Advocates Remuneration Order 2015 and the Advocates Act [Cap 341 RE 2019]. That is to say the right to challenge the DLHT ruling was not appropriately explained. The applicants prayed in the chamber summons that this court be pleased to revise the ruling of the DLHT and carry out a taxation of miscellaneous application no 271 of 2018. It is the position of this court that because the applicants are not challenging the entire decision of the DLHT except only two items, it is not appropriate to step into its shoes and hear the taxation afresh in the high court. Therefore, the prayer for this court to sit in taxation of miscellaneous application no 271 of 2018 is refused, because the same 5 proceedings were properly carried out by the DLHT only that two items were not attended to. Lastly the applicants moved this court to tax costs for this application at Tshs 1,000,000/= but that was not their prayer in the chamber summons. The prayer in the chamber summons was for costs of this application. This court should always restrain itself to grant reliefs not sought by parties in the chamber summons. Based on the above discussion, this court makes the following orders; 1) The ruling in Miscellaneous Application no 271 of 2018 is set aside in so far as the district land and housing tribunal for Tarime taxed off item 1 and did not tax item 9 of the bill of costs. 2) In addition to the items appropriately taxed in Miscellaneous Application no 271 of 2018, the district land and housing tribunal for Tarime is directed to restore the taxed off item 1 of the bill of costs and tax it according to law along with item 9 of the bill of costs. 3) After carrying out the directives at 2 above, the district land and housing tribunal for Tarime shall issue a fresh and comprehensive ruling with the amounts taxed already in other items, together with the amounts to be taxed at items 1 and 9 of the bill. 6 4) For purposes of saving time and other resources of parties, carrying out the directives at 2 and 3 above shall not require summoning parties. Parties may be called to come for their copies of a fresh ruling when ready. 5) It is advisable that in the interest of time, a fresh ruling to be available to parties not later than 60 days from the date of this order. 6) The prayer for this court to tax costs for prosecuting this application for reference at Tshs 1,000,000/= is refused. 7) This court makes no orders as to costs. DATED at MUSOMA this 25th September 2020 . N. Galeba JUDGE 25.09.2020 Court; THIS RULING has been delivered before Z. N. Galeba JUDGE, today the 25th September 2020 in the absence of parties. Mr. Jovian Katundu, RMA is present. Z. N. Galeba JUDGE 25.09.2020 7