Ruling Civil Reference No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI CIVIL REFERENCE NO. 16349 OF 2024 (C/F Taxation Cause No. 121 of 2022 Originating from Miscellaneous Application No. 74 of 2023 in the District Land and Housing Tribunal for Moshi at Moshi) 1. KASIMU ALLY MSUYA 2. SALIMU MOHAMED ….…………………………….…APPLICANTS 3. SHABANI KHALIFA VERSUS 1. SAIMON OMARI MSUMANJE 2. DICKSON OMARI MSUMANJE 3. SOMOLON OMARI MSUMANJE 4. VALENINTE OMARI MSUMANJE ………..…………RESPONDENTS 5. SILLA ELIA MSUMANJE 6. JOEL ISACK MSUMBA 7. ELIKANA M. MSUMANJE RULING 16th October & 11th December, 2024 MONGELLA, J. Page 1 of 9 The applicants had filed Miscellaneous Application No. 74 of 2023 in the District Land and Housing Tribunal for Moshi at Moshi (hereinafter, the Tribunal). They later sought to withdraw the same and the request was granted. Following the withdrawal, the respondents filed Taxation Cause No. 121 of 2023 seeking an award of cost totalling TZS. 3,133,000/=. The taxing officer, who was the chairman of the Tribunal, allowed costs amounting to TZS. 2,928,000/=. Aggrieved by the awarded costs, the applicants have preferred this reference seeking for this Court to revise the Ruling on Taxation Cause No. 121 of 2023. The applicants have supported their application with their jointly sworn affidavit. The respondents expressed their contest to the application vide sworn counter affidavit of one Arnold Tarimo, an Advocate who represented them in both Miscellaneous Application No. 74 of 2023 and Taxation Cause No. 121 of 2023. The Reference was argued by written submissions whereby the applicants were represented by Mr. Philemon Shio while the respondents were represented by Mr. Arnold Tarimo. Mr. Shio commenced by acknowledging that awarding costs is indeed the Taxing Master’s discretion. He however challenged the award on ground that the same was excessive and unjustifiable. Expounding on his stance, he contended that Miscellaneous Application No. 74 of 2023 was not determined on merits. He averred that on the first day of hearing, the applicants realized that they had made some errors in filing their application at the Tribunal Page 2 of 9 and decided to withdraw the same. Referring to Order 12(1) of the Advocates remuneration Order GN No. 264 of 2015, he averred that the Taxing Master is authorized to award costs that appear necessary or proper for attainment of justice. Further, he contended that since the instruction fee is provided in the Order, the Taxing Master ought to have awarded costs as prescribed under item 1(k) of the 11th schedule. He further cited the case of C.B. Ndege vs. E.O. Aliya and AG [1988] TLR 91 whereby it was held that for the amount charged under instruction fees to be reasonable, it depends on particular circumstances for each case. Insisting that the amount awarded as instruction fee was excessive, as the advocate had not done anything to prosecute the case, he sought for the award to be revised. Addressing the award on items 2, 3, 7, 8, 9,10, 11 and 12, Mr. Shio alleged that the amount awarded thereon was excessive and unjustified. On the amount being unjustified, he contended that the respondents never produced any receipts to the Tribunal to justify the amount they claimed to have spent in travelling to and from to meet and instruct their advocate. He added that the Taxing Master also did not justify his act of awarding the such costs, which led to misapprehension of justice. In reply, Mr. Tarimo had opposite view that the amount awarded was not excessive. He argued that the question on whether Miscellaneous Application No. 74 of 2023 was determined on merit was irrelevant as instruction fees are payable before trial and court attendance and not afterwards. He supported his averment with Page 3 of 9 the case of Haider Bin Mohamed Elamandry and Others vs. Khadija Binti Ali [1956] 23 EACA; Ujagar Sigj vs. Mbeya Cooperative Union [1968] HCD 173. He alleged that the respondent’s Advocate had to interview the 7 respondents before drafting, typing and printing the counter affidavit opposing Miscellaneous Application No. 74 of 2023. In the premises, he had the stance that the instruction fee charged was reasonable. The learned Counsel added that according to Item 1(m) of the 11th Schedule to the Advocates Remuneration Order, the fee for opposing chamber application is TZS. 1,000,000/- for one person. That, in Miscellaneous Application No. 74 of 2023 there were 7 respondents so the fee ought to have been TZS. 7,000,000/=, but only TZS. 2,000,000/= was charged which was more than fair, hence reasonable. Mr. Tarimo further stated that even if the application had been unopposed the instruction fee would be TZS. 500,000/-= per person totalling TZS. 3,500,000/= for the 7 respondents. Considering the anticipated amount, he found the TZS. 2,000,000/- charged, well reasonable. Addressing the case of C.B. Ndege (supra) cited by Mr. Shio, Mr. Tarimo had the view that the case was in the respondent’s favour. He alleged that when Miscellaneous Application No. 74 of 2023 was withdrawn with costs, it had come for hearing and not for mention as alleged by Mr. Shio, thus the respondents’ Advocate still made preparations in terms of research prior to the hearing date. Page 4 of 9 Mr. Tarimo contended that in Bill of Costs there is no requirement for adducing evidence in awarding costs. He fortified this averment with the case of Tanzania Rent a Car Limited vs. Peter Kimuhu (Civil Reference 9 of 2020) 2021 TZCA 103 (6 April 2021). He finalized his submissions by praying for the Reference to be dismissed with costs. I have given the submissions by both parties. The applicant herein seeks for this Court to revise the award of costs by the Taxing Master in items 1-12 in the Bill of Costs. According to him, the awarded amount was excessive for single appearance by the parties. On the other hand, Mr. Tarimo had the contention that the cost awarded was justified owing the research conducted, drawing of the counter affidavit, attending court sessions and prior consultations. I will commence addressing the instruction fees awarded. It is settled that all costs are to be awarded by the Taxing Master according to the law and his discretion. The awarding of instruction fees however, requires the Taxing Master to take into account several factors. These include; the amount of work done, the complexity of the matter and the time spent, among others. Such facts were well stated in the case of Kitinda Kimaro vs. Anthony Ngoo Another (Civil Reference No. 6 of 2016) 2018 TZCA 493 (13 July 2018) where the Court of Appeal stated: “It is trite law that instruction fee is supposed to be compensated adequately to an advocate for the work done in the preparation and conduct of a case. The greater the amount of work involved, the complexity of the case, the time taken by an advocate hearing of arguments in the case, as factors to be taken into account in determining the Page 5 of 9 appropriate instruction fee in any given case. The overriding principle has always been that "costs should not be excessive or oppressive but only such as necessary for the conduct of the litigation.” See also, Tanzania Rent a Car (supra). Upon observing the record of the Tribunal in Taxation Cause No. 121 of 2023, I found that the Taxing Master awarded TZS. 2,000,0000/- as instruction fees. Upon observing the record in Miscellaneous Application No. 74 of 2023, I find the same being filed on 24.03.2023. The parties first appeared before the Tribunal on 03.04.2023 and on the same day the application was withdrawn following withdrawal of Land Application No. 47 of 2023. There was thus clearly a single attendance by the respondents. As the counter affidavit calls for evidence of the parties, such issue did not require complex legal research. Even if the matter involved 7 respondents, the matter was for temporary injunction alone, it was thus not as complex as alleged. The minimum amount to be awarded as costs for defending a case is provided for under Item (m) of the Eleventh Schedule to the Advocates Remuneration Order, as being TZS. 1,000,000/=. In this matter, which by the way ended at the earliest stage, I agree with the applicant that awarding TZS. 2,000,000/= as instruction fees was excessive. In the premises, I hereby reduce the amount to TZS. 1,000,000/-. The other challenged items are 2, 3, 7, 8, 9, 10 and 12 on the Bill of Costs. I shall address each of the items separately. Page 6 of 9 Item 2 involved transport cost incurred by the Advocate for hearing the application on 03.04.2023. However, the application did not come for hearing, but rather the very first mention. The Taxing Master awarded TZS. 100,000/- from TZS. 200,000/- reasoning that the same was excessive. In my view, even the award of TZS. 100,000/- was still excessive given the distance from Moshi to Arusha. I therefore reduce the same to TZS. 50,000/ as the value is reasonable even for a private transport. Item 3 was costs for attendance which totalled at TZS. 100,000/-. The amount was not specified as involving whose attendance, but in Mr. Tarimo, in his submission explained the same as his costs. He claimed TZS. 100,000/- but was awarded TZS. 50,000/- which I find well reasonable. Under item 7 titled as transport costs for all respondents from Kahe to Moshi the amount charged was TZS. 7500/- per person for 7 persons for a round trip. I find the same reasonable and justified for public transport in consideration of the distance. The lack of receipts is not an issue as the same is not the core requirement. As for item 8, the record only indicates a single applicant and respondent as present. It does not display all of them entering appearance. It is settled position that records are sacred and should be believed unless proven otherwise. See, Salehe Omary Ititi vs. Nina Hassan Kimaro (Civil Application 583 of 2021) [2023] TZCA 232; Stanley Murithi Mwaura vs. Republic (Criminal Appeal No. 144 of 2019) [2021] TZCA 688 and; Alex Ndendya vs. Republic (Criminal Appeal 207 of 2018) [2020] TZCA 202. However, in this matter, Page 7 of 9 I am of the view that since the record was never contested in the Taxation Cause as to nonattendance of the said parties, the error was occasioned by the Tribunal. All respondents were thus present. In the premises, I find the amount of TZS. 49,000/- awarded as transport fees reasonable and maintain the same. With regard to item 9 which is on breakfast and lunch for the respondents; I find the value of TZS. 10,000/ - for each justified. I thus maintain the same value of TZS. 70,000/- taxed as food costs for all respondents in this item. On item 10, the claim was for costs for attending the Tribunal to file letters requesting copies. Upon perusing the record on Taxation Cause No. 121 of 2023, I did not find any letter for requesting copies. In the circumstances, I hereby tax off the awarded TZS. 7,000/-. Item 11 is on cost for picking up withdrawal order on 26.05.2023. The order appears to have been taken from the Tribunal on 25.05.2023. This item was however, not challenged and appears to have been reasonably taxed. I thus maintain the value of TZS. 7,000 awarded as costs for the item. As to item 12, which is on costs for the Taxation Cause, it appears that the Taxing Master awarded TZS. 500,000/-. I find the amount highly reasonable and hereby maintain the same. Following the above made adjustments in this Reference, the total amount of the taxed Bill of Costs is therefore TZS. 1,871,000/-. The Reference is thus allowed to such extent. Each party shall bear own costs. Page 8 of 9 Dated and delivered at Moshi on this 11th day of December, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 9 of 9