kcb bank t ltd another vs delina general enterprises ltd 2023 tzhccomd 68 3 march 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL REFERENCE NO. 24 OF 2022 (Originatingfrom Taxation Cause No. 134 of2022) KCB BANKTANZANIA LIMITED..... ....................... 1stAPPLICANT KCB BANK KENYA LIMITED 2ND APPLICANT VERSUS DELINA GENERAL ENTERPRISES LIMITED ....... RESPONDENT RULING Date of last order: 14/12/2022 Date of ruling: 03/03/2023 . AGATHO, J.: The Applicants brought this taxation reference in which they are inviting the Court to vary the decision of taxing officer Hon. Minde Deputy Registrar in Taxation Cause No. 134 of 2022 on five grounds below: (i) That the trial taxing officer had no jurisdiction to entertain the Respondent on account of pending notice of appeal filed to challenge the decision of the. High Court inclusiye of the costs awarded by the Court. (ii) The Applicants were not given a right tp be heard on the matter. 1 (iii) The decision of the taxing officer is not supported by any materials to justify the award of the taxed sums. (iv) The taxing officer dedded the Taxation cause in total disregard of the laid down legal principles guiding of hearing of taxation matters. (v) That items 5,6,9,10,11,12,13, 19, 20, 21, 22, 23, 24, 25, 27 and 28 and fees for hearing taxation cause in the extent of TZS 1,050,000/= were arbitrary awarded without regard to the laid down legal principles guiding taxation hearings. Before I venture unto the reference, it suffices to mention that the parties were under legal representation.Whereas the Applicahts were represented by Regina Anthony Kiumba, advocate from Trustmark Attorneys, the Respondent enjoyed the services df Juventus Katikirp, learned counsel from Apex Attorneys Advocates. It was by consensus that the taxation reference be disposed by way of written submissions. The schedule was drawn, and appreciatively, the parties filed their submissions timely. A backdrop of the refererice is that the Applicants are judgment debtors in a Commefcial Case No.16 of 2022 before the HCCD, and the Respondents are decree holders. After emeraina victoribus in the suit. the Respondents were awarded costs. According to paragraph 5.0 of an affidavit in support of the reference, the Respondents proceeded to file their Bill of Costs to the tune of TZS 501,901,620.03 in Taxation Cause No. 134 of 2022 dated 18/10/2022 whose ruling was delivered on 28/10/2022. No sooner than the ruling was delivered therp was notice of appeal to the CAT filed against the judgment and decree of Commercial Case No. 16 of 2022. To be precise the notice of appeal was filed on 27/09/2022. That is four days from the date on Which the judgment ih Cornmercial Case No. 16 of 2022 was delivered. The judgehient was. delivered on 27/09/2022. As per paragraph 4.0 , of the affidayit in support of the rGference at hand, aiCppy . of th£ notice of appeal was served upon the Respondents on 29/09/2022. The issues that the Court have been asked to resolve are: (i) Whether the trial taxing officer had no jurisdiction to entertain the Respondent on account of pending notice of appeal filed to challenge the decision of the High Court inciusive of the costs awarded by the Court. (ii) Whether the Applicarits wefe‘hbt giyen a right to be heardi pn the matter. 3. (iii) Whether the decision bf the taxing officer is not supported by any materials.to justify the award of the taxed sums. (iv) Whether the taxing officer dedded the Taxation cause in total disregard of the laid down legal principleS guiding of hearing of taxation matters; and (v) Whether the items 5,6,9,10/11,12,13, 19,20, 21, 22, 23, 24, 25, 27 and 28 and fees for hearing taxation cause in the extent of TZS 1,050,000/= were arbitrary awarded without regard to the laid down legal principles guiding taxation hearings. The first and second issues above stated are fundamental once we resolve either of them the mattef iS disposed of. I will examine them first. To begin with, we examine the issue (i) Whether the trial taxing officer had no jurisdiction to entertain the Respondent on account of pending notice of appeal filed to challenge the decision of the High Court inclusive of the costs awarded by the Court. Jurisdictioh is a power of the court to entertain a particular matter brought before it. If a Court proceeds to entertain a matter without jurisdiction the proceedings and decisions are nullity. See the case of M/S Tanzairtia Chiha Frierid^hip 4 Textile Co. Ltd v Our Lady of the Usambara Sisters [2006] TLR 70. Now turning to the case at hand we ask whether filing of notice of appeal to the CAT deprives this Court its jurisdiction to determine taxation cause? This seems to be view taken by the Applicants and substahtiated by some case laws Matsushita Electric Compahy (E.A) LTD V Charles George t/a G.G. Traders, Civil Application No. 71 of 2001 CAT; Mohamed Enterprises Tanzania Limited v The Chief Harbour Master and the Tanzania Ports Authbrity CAT; HCT decisions in Norman ~ Mehboub (T/A Noman Al Mahbpub General Trading Corporation) Milcafe Limited, Commercial Case No. 41 Of 2003 HCT Commerpial Division at Dar es saiaam; Dominic Ishengoma v Managing Director Geita Gold Mining, Civil Reference No. 37 of 2019, HCT LabpurDivisicn at Mwanza (dated 21/07/2021); and quite recently Calist Aloyce: Massawe and Another v Kijenge Saccos ahd Two Others, Civil Reference No. 01 of 2022HCT at Arusha (decided on 08/09/2022). is’the awardihg of cdsts arhdng thfe relidfsThat cah'be appealed td the CAT? Say the HCT has awarded costs-and the judgrhent' debtor appeal to the CAT can it reverse the costs awarded?1t 1s the law that the 5 Appellant cannot appeal to the CAT against an order of the HCT awarding of costs to a party, which was at the discretion of the COurt unless the HCT grants leave to appeal to the CAT. See Section 5(2)(a)(ii) of the Appellate Jurisdiction Act [Cap 141 R.E. 2019]. What is the import from this provision is that costs are not appealable as of a right. It also means that if a party decides to appeal against judgment and decree pf the HCT and equally dissatisfied with awarding of costs he ought 'to seek leave.of the HCT to appeal to the CAT. From the foregoing/ what one grasps is that where the Taxation -proceedings ensued it does not have any bearing on the appeal againstjudgmentand decrep. My take on the Applicarits' view arid iri lieii bf thd authbrities they Tiave cited is that the Bill of CostS proceedifigs will be automatically barred or stayed bnce there is a notice of appeal to the CAT but ekecutiOn willbe allowed td pfocPed unless there is stay bf the same by the CAT. In my view such feading and application of law will be wantirig. There are two reaspns I can think of now, fifst, hardship and second, Court's discretion. In comparison, the execution of decree will pose more hardship on the Applicants (prospective Appellants) than bill of costs (taxation) proceedings because,first, the Court cannot awardcosts higher than the decretal sum. Secbnd, it isrtrite that awarding of costs is pften 6 an exercise of judicial discretion that is not appealable unless leave is granted. Reading Matsushita and Norman Mehboub cases, it seems to me that the matters specifically provided forare not exhaustive. I am saying so because a word used issuch asfollowed by a fewmatters mentioned therein. Let me reproduce the quote ih the Matsushita's case: "Once a Notice ofAppeai is fiied under Rule 76 (now ruie 83(1) ofthe Ruies) then the Court is seized with the matter in exciusion of the High Court, except for appiications speciaiiy provided for such as ieave to appeai or provision of a certificate of point of iaw or execution where there is no order ofstayofexecution from this Court." (Bold is mine). In my settled view, the use of a phrase "such ad' connotes that wh mentioned is not exhaustive, they are just examples. The list may g> and on. We are invited to look at Other items beyond those mentioned. For that reason, to regard bill of costs proceedings as one such item not mentioned but included is not far-fetched. I thus find Rbse Mkeku's case to be justifiably convincing. In the latter case the judge focused inter aiiapn the sixty days' time limit set for the Bill of Costs to be filed in the Court, otherwise the taxation cause will be time barred as 7 , provided for under Order 4 of the Advocates Remuneration Order, G.N. 263 of 2015. Even the scenario contemplated by the Applicants (at page seven of their submissions) that the decree holder files bill of costs that is heard and taxed and the awarded costs are executed and subsequently the appeal against judgment ahd decree is heard by the CAT which overturns the HCT decision and orders the Respondent (decree holder at HCT) to pay costs both in the CAT and those in the HCT is in my view unthinkable. I am holding so because costs are discretionary and once awarded at the HCT they can only be appealed against if leave is sought. See Section 5(2) (ii) of the Appellate Jurisdiction Act [Cap 141 R.E. 2019]. The decisions cited by the Applicants to Support their stance that the taxation officer had no jurisdiction afe worth examining. Majority of HCT decisions have shown that once there is notice of appeal to the CAT the HCT ceases to have jurisdiction except for matters listed under Section 11(1) Of Appellate Jurisdictidn Act [Cap 141 R.E. 2019]. The items include application for leave to appeal to CAT or application for certificate on point of law; matters specifically stated under Section 5(l)(c), (2)(a) (i), (ii), (b), and (c) of the Appellate Jurisdiction Act [Cap 8 141 R.E. 2019], and application for execution unless an order for stay of execution is given. The latter has also been held in the case of Aero Helcopter (T) Limited v F.N. Jansen [1990] TLR 142. Whether the analogy drawn by the Applicants' counsel m Ll LZJLZ/UU*/ dictum in Attorney General v Amos Shavu by His Lordship Lugakingira J.A isbindingupon this Court. His Lordship gave obiter dictum that: "Before I condude I desire to address briefiy one or two things which cropped up. One Mr Kamba argued that the taxing officer erred in proceedings with the taxation whiie there was a pending appeai. I don't think so. The taxation had nothing to do with the decision of the High Court against which an appeai was pending. It was a taxation in a distinct appiication which terminated with a decision of a Singie Judge." My reading of the excerpt does not tell me that it is conclusive that His Lordship Lugakingira J.A (asrhefitherttyvas) meant that eyen if the taxation related with the deoision ;of the High Court agaihst which the appeal was pending ’then he would cpnclude that the High Court lacked jurisdietion; or was barred from entertaining the taxatipn proceedings. Thatjs a mere speculation which the Court cannot heed to. 9 At this point needless to repeat that several HCT decisions have held that notice df appeal is a bar to taxation proceedings. Among them are: Dominic Ishengoma v Managing Director Geita Gold Mining, Civil Reference No. 37 of 2019, HCT Labour Division at Mwanza, (per Tiganga, J. delivered on 23rd July 2021), and Calist Aloyce Massawe and Anor v Kijenge Saccos and 2 Others, Civil Reference No. 01 of 2022 HCT Arusha at page 5 (per Lady Justice Mwaseba, J. ruling of 8th September 2022) both held that the HCT lacked jurisdiction to deal with taxation when there is notice of appeal. The Respondent's counsel with respect thought Rose Mkeku's decision (delivered on 05/05/2022) is. the most recent. And he thus extended his energy to conyi.nce the Court that it should follow its recent decision. I will not spill ink over this issue. Plainly, the most recent HCT decision is Calist Aloyce Massawe's case (supra) pronounced on 08/09/2022. The latter is the recent Court decision worth following if we are to follow the views of the Resbohdent's counsel. But as already hinted that specific matters contemplated in law are not exclusive to those mentioned in Matsushita and Mehboub cases (supra). These decisions are therefore not a bar to the Court's entertaining of taxation proceedings as held in Rose Mkeku's case (supra). 10 Much earlier in Norman-Mahboub (t/a Noman Al Mahboub General Trading Corporation v Milcafe Limited, Lady Justice Kimaro, 1 she held that the HCT was not allowed to proceed determining the application for bill of costs while there was a Notice of Appeal filed at the CAT. The CAT also in Matsushita's case (supra) held that a hotice appeal precluded the Hight Court td deal with the case except for applications specifically provided for such as leave to appeal or provision of a certificate of point of law. It is uncontroversial that the application for Taxation is filed after determination of a'main case in which judgment is pronounced orruling is delivered, and hence the decree or drawn orders is issued.As per Order 4 of the Advocates Rernuneration Order, G.N. 263 of 2015, a decree holder inay file application for taxation within sixty days from the date of awarding the costs. Be as it may the Applicant argued that the use of a word may connotes non -obligatory. Kahyoza, 1 in Rose Mkeku(tlie administratrik of the estate of the late Simon Mkeku v Pervez Shabbirdin, Misc. Land Appiication Case No. 89 of 2021, HCTsub-i'egistry of Mwanza (rUiing of 5th May 2022) had a different view which I subscribe to as already ii articulated herein above. The Judge's perspective in Rose Mkeku's case (supra) is that the Notice of Appeal is not a bar to determination of taxation application. To conclude on the first point that the taxihg officer had no jurisdiction to deal with taxation proceedings when there is a notice of appeal to the CAT as per what have been stated herein above I hold that the Court had jurisdiction. The taxing officer was therefore correct to determine it. Having disposed the first ground, let us turn to the abridged grounds (2nd, 3rd and 4th) that the Applicants were denied the right to be heard, no supporang materials and violation of principles governing taxatiorL Determination of what wduld be reasonable instruction fee in the drcumstance of the casedepends bn whether the matter was contentious or non-contentious. But before dealing with that, we. should determine the issue of denial of right to be heard as that is equally fundamentai. See Article 13(6) of,the United ■ Republic of Tan^ania Constitution, .1977 as amended. It is surprising that the Applicants' submissions on page 10 claim lack df fair hearing, that taxatioh proceedings were cbnducted in a strange manher. These are nbt only statements from the bar unfounded in the affidavit but alsb, they are allegirigbitocedufal irreguiarities that thb 12 Court was not supplied with any materials to enable the Applicants to contradict before the taxation amount was reached. If this is true then in my view it is an afterthought. The Applicants had an opportunity to probe all these at the hearing of the taxation cause. They did not do so. I had thought when one alleges denial of right to be heard he or she should prove that there was no summons sent to him or her, and the proceedings were conducted in his absence, or the proceedings were conducted in a language that he did not understand. In my view, if a party was served with summons for hearing of the taxation, or he was present but failed to cross examine on issues that were material then he cannot afterward complain of infringement of the right to be heard. As per order 12 of G.N. 263 of 2015, the taxing officer has discretionary powers in determining taxation. But such discretion has to be exercised judiciously. Truly, this Court can rarely interference With the decision df taxing officer' See the case of George Mbuguzi and Another v A. S. Maskini [1980] TLR. 53. The Court can iriterfere where there is misdirection, non-direction,or wrong application of taxation principle. I find no such problemin the taxing officer's handling of the taxation proceedings that would have warranted the Court's interference with her 13 decision.I am not moved by the allegation that the Applicants' right to be heard was infringed uponbecause it lacks substance. I have also noted that the taxing officer dedsion to tax as she did was supported by the evidence brought before her. It should be remembered that the amount taxed TZS 23,582,865/= is lower than what the Respondent presented ih her Bill of costs, that is TZS 501,901,620.03. It means the taxing officer taxed off some amount in relation to certain items such as. Therefore, it is not true that the taxing officer decided the taxation application without any material or evidence. It means order 58 (l)-(3) of the G.N. 263 of 2015 requiring vouchers, documents, and other evidence to be produced if required by the taxing officer was complied with. That was equally consistent with the CAT decision in Elifazi Nyatenga and Three Others v Caspian Mining Limited, Civil Application No. 44/08 of 2017 CAT at Mwanza (unreported). The last issue (5th ground) that the proceedings were in contraventiori of the principles governing taxatiOn proceedings, that is Advocates Remuneration Order, G.N. No. 263 of 2015.1 will treat it briefly. If there is a provision in the legislatidn bd it principal dr subsidiary the Court ought to fpllow it. It is common grourid that this matter was contentious one. Hence the ninth schedule to the Advocates Remuneration Order 14 G.N. No. 263 of 2015 dealing with scales of fees for contentious matters for liguidated sum applies. Despite that I am not in accord with the Applicants' view that instruction fee and Court attendance are to be charged together. This case is distinguished from what was held in FBME Bank Company Limited v Lupembe Tea Estate Company Limited & Two Others, Cpmmerciai Case No. 59 of 2012 HCCD, And the case of CAMFED v CRDB PLC, Commercial Case No. 141 of 2012 HCCD. It is my considered view that Court attendance is to be charged separately from the instruction fee. It will be improper to combine them. The nihth schedule applies to fees for contenti’ous matters. Btit where the fee clainied is hbt provided for uhder that schedule such as Court attendance charges then one is inclined to look at the eighth schedule to the Advocates Remuneration Order, G.N. 263 of 2015 which provides for scales of fees in respect of business the remuneration for which is not otherwise prescribed. I should state that looking at the ninth schedule of the Advocates Remuneration Order, G.N, 263 of 2015 (it, is clear that nothing in that pchedule forbids a party Trom daiming. fees that: are Otherwise not prescribed as :per. the eighth schedule of, the.same.Order. The ninth schedule is exclusive .to -fees for. contentious proceedings fpr 15 Iiquidated sum in original and appellate jurisdiction. Consequently, I find the Applicants prayer that all costs claimed in items No. 5,6,9,10, 11, 12 13, 19, 20, 24, 25, 27 and 28 are the ones should have been taxed, the rest ought to have been taxed off to be without merit. I have already pointed out that the FBME case is distinguished with the case at hand. And I have considered the differences from what has been prescribed in the ninth schedule and the items covered in the eighth schedule of G.N. No. 263 of 2015. They are dissimilar and they should be charged separately. In lieu of the foreg'oing I find the application at hand lacking the requisite merit to warrant the Court to revise, quash or vary the taxation proceedings and taxation officer's ruling. It is therefore dismissed with costs. It is so ordered. DATED at DAR ES SALAAM this 3rd day of March, 2023. U. J. AGATHO JUDGE 03/03/2023 16 Date: 03/03/2023 Coram: Hon. U. J. Agatho, J. For Applicants: Irene Mchau, Advocate For Respondent: Kelvin Ngeleja, Advocate. C/Clerk: Beatrice Court: Ruling delivered in Chambers, today, this 3rd March, 2023 in the presence pf Irene Mchau, learned counsel for the Applicants, and Kelvin Ngeleja, learned counsel for the Respondent. JUDGE 03/03/2023 17